By: Emma Postel

Once again, a North Carolina voting law has been found unconstitutional. On September 17, 2021, a Wake County North Carolina Superior Court permanently enjoined SB 824, a law passed in 2018 requiring photo identification for in-person voting. The court struck down SB 824 as a violation of the North Carolina Constitution’s Equal Protections clause, as they found it was adopted with an “unconstitutional intent to target African American voters.” Among its findings of fact, the court noted that North Carolina has a long history of implementing voting laws that discriminated against the African American residents of the state. The General Assembly has indicated they will appeal the Wake County Court decision.

SB 824 was originally passed as an election security measure to execute a voter ID amendment added to the North Carolina Constitution in 2018. In support of the law, the General Assembly argued that the new requirements were the “will of North Carolinians,” and were intended to “defend against potential voter fraud” and “bolster confidence in elections.” However, the challengers argued that the law was yet another in a long line of precise attempts to target African Americans with the intent to “weaken African American voting” in the state. These arguments are not new in North Carolina voting litigation. North Carolina has a long history of disenfranchising and weakening the African American vote, including the implementation of literacy tests, poll taxes, voter dilution tactics, racial gerrymandering, and voter misinformation. Requiring certain types of photo ID can be a discriminatory tactic, as African American voters are less likely to have required photo ID, and therefore it is more difficult for them to vote. Proponents of the law have noted that this newest version has increased the types of acceptable photo identification from previous versions, for instance, the law now allows for individuals with college IDs to vote.

While the 2018 amendment may seem like strong support for the validity of SB 824, the amendment faces its own challenge in North Carolina courts. In 2018, the NAACP and Clean Air Carolina sued the North Carolina General Assembly, arguing the amendment was invalid, as the legislators who proposed it were elected by racially gerrymandered districts (as was held by a federal court in 2016) and therefore were a “usurper” government without the power to amend the North Carolina Constitution. The court in this SB 824 case further noted that the amendment’s ratification was “unusual” and “rushed.” In the past, North Carolina constitutional amendments were typically considered for an average of 140 days. This amendment was considered for only 22 days. The court found that this rushed process seemed to be an effort to “avoid voter scrutiny.” The challenge to this constitutional amendment is currently on appeal in the North Carolina Supreme Court.

Consequently, photo identification is not currently required to vote in North Carolina elections. However, this is no promise that it won’t be in the future. This law was previously challenged by a preliminary injunction in federal court, where the District Court for the Middle District of North Carolina held the law unconstitutional and upheld the preliminary injunction. However, on appeal, the Fourth Circuit did not. The Fourth Circuit reversed, holding that the District Court put too much emphasis on the North Carolina legislature’s past, resulting in a situation where no voter identification law could ever be found constitutional. It remains to be seen then whether SB 824’s permanent enjoinment can withstand the appellate process.

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