By: Collin Crookenden

With the recent invalidation of the coverage formula set forth in Section 4 of the Voting Rights Act, several previously covered districts implemented stricter voting requirements. In 2013, immediately following the invalidation, North Carolina enacted Session Law 2013-381 which contained multiple provisions that were contested as soon as Governor McCrory (R) signed it into effect: photo identification requirements, shortened early voting periods, and elimination of pre-registration for individuals under the age of 18. The new requirements were set to go into effect January 2016 and were in fact utilized in the primaries earlier this year, after the legislature altered the law in 2015. Of primary concern to the litigants and to the legislation’s opposition was the requirement of all voters to show photo identification. Most states have some form of identification requirements, but North Carolina’s 2013 version maintained some of the most stringent provisions. Governor McCrory argued that these, specifically the photo identification statute, were “common sense” pieces of legislation. However, while the district court agreed with his assessment, the 4th Circuit Court of Appeals ruled that the legislation was in violation of Section 2 of the Voting Rights Act, which prohibits discrimination of voting requirements based upon race.

In a lengthy opinion from a panel of three judges last summer, the 4th Circuit announced that the 2013 session law was invalid. However, the decision was not unanimous. In fact, Judge Motz dissented on a major aspect of the opinion: the injunction. While the other members of the panel agreed to suspend the legislation, Judge Motz noted that the revised version of the law, as amended by the North Carolina General Assembly, should remain in effect. Her reasoning relied upon one key amendment added in the 2015 session of the North Carolina Legislature.

The 2013 version of the statute only included one redress for those unable to produce photo identification on the day of the election. Such voters were allowed to vote on a provisional ballot, and as long as the voter returned with acceptable identification within a few days, the ballot would be counted. Yet, even this leniency only delays the strict requirement of photo identification. However, legislation along this line is in effect in several states, including Indiana, Kansas, and Virginia. The 4th Circuit was not persuaded by this fact, and yet a year before the decision came down, the North Carolina General Assembly had already accommodated the law with less stringent requirements prior to its effective date.

Session Law 2015-103 included provisions to amend the previous instigation of photo identification to include several redresses available to those without photo identification: the provisional ballot with later photo identification, an affidavit swearing religious objection to being photographed, and a reasonable impediment declaration. The last exclusion was the newest, and it is similar to South Carolina’s current standard. A reasonable impediment declaration includes many reasons as to why the voter cannot get a photo identification including work scheduling, lack of transport, an application for but not receipt of said identification, and other familial responsibilities. When adding in these addendums, the strictness of the requirement drops significantly.

Thus, Judge Motz disagreed with the application of the injunction. In her dissenting opinion, she argued that the legislature had already solved the problems mentioned by the opinion of the court, and when “interim events have ‘cured the condition’. . . a court will properly deny an injunction of the abandoned practice.” The legislature noticed its failures evident in the 2013 version of the statute and attempted to alter it in order to accord with other state laws regarding voter identification. However, the 4th Circuit enjoined the state from applying this law for the upcoming election. The analysis was based on the 2013 statute but also affected the 2015 amendments.

Following his statement, Governor McCrory requested a stay of the injunction from the Supreme Court while the appeal is pending, so that the law might be utilized in November 2016, citing possible confusion for the voters who dealt with the law during the primary season. However, this request was denied with four votes on either side. Three Justices voted to grant the stay with respect to the photo identification and the shortening of early voting provisions, while Justice Thomas voted to grant the stay entirely. On November 1, 2016, the Supreme Court granted the motion to voluntarily dismiss the appeal, meaning that the injunction remained in place for the November 2016 election.

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