Holmes v. Moore ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-122
No. 342PA19-2
Filed 16 December 2022
JABARI HOLMES, FRED CULP, DANIEL E. SMITH, BRENDON JADEN
PEAY, and PAUL KEARNEY, SR.
v.
TIMOTHY K. MOORE, in his official capacity as Speaker of the North
Carolina House of Representatives; PHILIP E. BERGER, in his official
capacity as President Pro Tempore of the North Carolina Senate; DAVID R.
LEWIS, in his official capacity as Chairman of the House Select Committee on
Elections for the 2018 Third Extra Session; RALPH E. HISE, in his official
capacity as Chairman of the Senate Select Committee on Elections for the
2018 Third Extra Session; THE STATE OF NORTH CAROLINA; and THE
NORTH CAROLINA STATE BOARD OF ELECTIONS
On discretionary review pursuant to N.C.G.S. § 7A-31 prior to a determination
by the Court of Appeals of a final judgment and order entered on 17 September 2021
by a three-judge panel of the Superior Court, Wake County appointed by the Chief
Justice following transfer of the matter to the panel pursuant to N.C.G.S. § 1-267.1.
Heard in the Supreme Court on 3 October 2022 in session in the Historic 1767 Old
Chowan County Courthouse in the Town of Edenton pursuant to N.C.G.S. § 7A-10(a).
Southern Coalition for Social Justice, by Jeffery Loperfido, Allison J. Riggs and
Hilary Harris Klein; and Paul, Weiss, Rifkind Wharton & Garrison LLP, by
Jane B. O’Brien, pro hac vice, Paul D. Brachman, pro hac vice, and Andrew J.
Ehrlich, pro hac vice; for plaintiff-appellees.
Cooper & Kirk, PLLC, by Nicole J. Moss, David H. Thompson, pro hac vice,
Peter A. Patterson, pro hac vice, Joseph O. Masterman, pro hac vice, John W.
Tienken, pro hac vice, and Nicholas Varone, pro hac vice; and K&L Gates, by
Nathan A. Huff, for legislative defendant-appellants.
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Joshua H. Stein, Attorney General, by Terence Steed, Special Attorney General,
Laura McHenry, Senior Deputy Attorney General, and Mary Carla Babb,
Special Deputy Attorney General for defendant-appellants State of North
Carolina and North Carolina State of Board of Elections.
Fox Rothschild LLP, by Matthew Nis Leerberg, for Professor Justin Grimmer,
amicus curiae.
Nelson Mullins Riley & Scarborough, LLP, by Andrew D. Brown, Phillip J.
Strach, and John E. Branch III, for Lawyers Democracy Fund, amicus curiae.
Roger W. Knight, P.A., by Roger Knight, for National Republican Senatorial
Committee, amicus curiae.
Kevin Cline Law, PLLC, by Kevin J. Cline; and Philip R. Thomas for North
Carolina Republican Party, amicus curiae.
EARLS, Justice.
¶1 The right to vote is a fundamental right, preservative of all other rights.
Blankenship v. Bartlett, 363 N.C. 518, 522 (2009); see also Reynolds v. Sims, 377 U.S.
533, 562 (1964). If the right to vote is undermined, it renders illusory all “[o]ther
rights, even the most basic.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Therefore,
“since the right to exercise the franchise in a free and unimpaired manner
is preservative of other basic civil and political rights, any alleged infringement of
the right of citizens to vote must be carefully and meticulously scrutinized.”
Reynolds, 377 U.S. at 562. But “[f]or much of our Nation’s history, that right sadly
has been denied to many because of race.” Shaw v. Reno, 509 U.S. 630, 639 (1993).
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¶2 Concerning qualifications for students to vote, this Court has recognized the
basic proposition that “any state law which tends to affect the right to vote by way of
making classifications must be scrutinized for conformity with the Equal Protection
Clause” and that “otherwise eligible persons who reside in a community and are
subject to its laws must be permitted to vote there even though their interests may
differ from the majority of the community’s residents.” Lloyd v. Babb, 296 N.C. 416,
440 (1979). Furthermore, as the United States Supreme Court has observed:
But we must remember that the interest of the State, when
it comes to voting, is limited to the power to fix
qualifications. Wealth, like race, creed, or color, is not
germane to one’s ability to participate intelligently in the
electoral process. Lines drawn on the basis of wealth or
property, like those of race (Korematsu v. United States,
323 U.S. 214, 216), are traditionally disfavored.
Harper v. Va. Bd. of Elections, 383 U.S. 663, 668 (1966) (emphasis added) (first citing
Edwards v. California, 314 U.S. 160, 184–185 (1941) (Jackson, J., concurring); then
citing Griffin v. Illinois, 351 U.S. 12 (1956); and then citing Douglas v. California,
372 U.S. 353 (1963)); see also United States v. Vaello-Madero, 142 S. Ct. 1539, 1550
(2022) (“[T]he Constitution of the United States, in its present form, forbids, so far as
civil and political rights are concerned, discrimination by the General Government,
or by the States, against any citizen because of his race. All citizens are equal before
the law.” (quoting Gibson v. Mississippi, 162 U.S. 565 (1896)). “It has accordingly
been held generally in the States that, whether the particular provisions of an act of
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legislation, establishing means for ascertaining the qualifications of those entitled to
vote . . . were or were not reasonable regulations, and accordingly valid or void, was
always open to inquiry, as a judicial question.” See Yick Wo v. Hopkins, 118 U.S. 356,
371 (1886) (first citing Daggett v. Hudson, 43 Ohio St. 548, 3 N.E. 38 (1885) (collecting
cases); Monroe v. Collins, 17 Ohio St. 665 (1867)).
¶3 The trial court in this case found that Senate Bill 824 (S.B. 824), the statute
enacted to require that every voter present one of a few specific forms of photo
identification, was enacted with a racially discriminatory purpose. Plaintiffs
challenged S.B. 824, which requires a photo identification (ID) to vote, under article
I, section 19, of the North Carolina Constitution, alleging the law was enacted at least
in part with the intent to discriminate against African-American voters. While most
people who have one of the acceptable forms of photo identification do not run the
risk of being disenfranchised by this statute, the experiences of plaintiffs and other
witnesses at trial showed that for themselves and others like them, the risk of
disenfranchisement is very real. But the guarantee of equal protection of the laws
means that a law enacted with the intent to discriminate on the basis of race is
unconstitutional even if no voter ultimately is disenfranchised because “[r]acial
classifications of any sort pose the risk of lasting harm to our society. They reinforce
the belief, held by too many for too much of our history, that individuals should be
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judged by the color of their skin. Racial classifications with respect to voting carry
particular dangers.” Shaw, 509 U.S. at 657.
¶4 The question before this Court is whether the three-judge panel’s finding that
S.B. 824 was motivated by racial discrimination is supported by competent evidence
in the record and whether the trial court correctly applied the Arlington Heights
factors when it found S.B. 824 was enacted at least in part with racially
discriminatory intent. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265–68 (1977); see also, Pullman-Standard v. Swint, 456 U.S. 273, 288
(1982) (a finding of purposeful racial discrimination is a finding of fact not to be
overturned unless clearly erroneous and “[t]reating issues of intent as factual matters
for the trier of fact is commonplace.”) We hold that the three-judge panel’s findings of
fact are supported by competent evidence showing that the statute was motivated by
a racially discriminatory purpose, and that the trial court correctly applied the
Arlington Heights factors to the specific facts of this case. See Vill. of Arlington
Heights, 429 U.S. at 265–68. By applying well-settled law concerning how the right
to equal protection is secured under article I, section 19 of the North Carolina
Constitution, the trial court’s ruling does not mean that any voter ID law enacted in
North Carolina would violate the equal protection guarantee, only that the provisions
enacted by this General Assembly in S.B. 824 were formulated with an impermissible
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intent to discriminate against African-American voters in violation of the North
Carolina Constitution.
I. Background
¶5 Based on the evidence before it, the trial court found that voting in North
Carolina is currently, and has been historically, racially polarized.1 In recent years,
white voters have favored the Republican Party, while the majority of African-
American voters have favored the Democratic Party. As the trial court and Court of
Appeals noted, this polarization “offers a political payoff” for legislators to dilute or
limit the minority vote.” Holmes v. Moore, 270 N.C. App. 7, 22 (2020) (cleaned up); see
Thornburg v. Gingles, 478 U.S. 30, 62–63 (1986) (plurality) (explaining that
polarization renders minority voters uniquely vulnerable to elected officials who can
entrench themselves by targeting groups unlikely to vote for them). Because of the
nature of racially polarized voting in North Carolina, if the State enacts restrictions
on voting and procedures that weigh more heavily on African-American voters, this
practice will “predictably redound to the benefit of one political party and to the
disadvantage of the other.” N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204,
214 (4th Cir. 2016) (cert denied sub nom. North Carolina v. N.C State Conf. of the
1The conclusion that voting is racially polarized is based on sound political science
methodologies analyzing actual election returns, methods that were endorsed by the United
States Supreme Court thirty-six years ago in Thornburg v. Gingles, 478 U.S. 30 (1986), and
have been routinely accepted by courts throughout the country since then.
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NAACP, 137 S. Ct. 1399 (2017)). North Carolina also has a long history of race
discrimination generally and race-based voter suppression in particular. Although
laws that limit African-American political participation have frequently been race-
neutral on their face, they have “nevertheless had profoundly discriminatory effects.”
Thus, equal access to the ballot box remains a critical issue in North Carolina.
¶6 North Carolina has also experienced a historical pattern in which increased
political participation by African-American voters is followed by attempts to thwart
or limit the same. One such example was found in H.B. 589. By 2013, after years of
expansion of voting access and preclearance requirements, African- American voting
registration and turnout rates began to resemble white registration and turnout
rates. The day following the United States Supreme Court’s decision in Shelby County
v. Holder, 570 U.S. 529 (2013), which eliminated preclearance requirements, the
North Carolina legislature unveiled new omnibus election law changes. This effort
resulted in the adoption of H.B. 589, which included a voter identification
requirement. McCrory, 831 F.3d at 214. When drafting H.B. 589, lawmakers sought
data on voter turnout disaggregated by race, and the bill ultimately required forms
of photo identification that African-American voters disproportionately lacked. Id. at
216. In 2016, the Court of Appeals for the Fourth Circuit reviewed H.B. 589 in
McCrory and concluded that the measure had been enacted with the unconstitutional
discriminatory intent to target African-American voters because they were unlikely
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to vote for the Republican legislative majority. The United States Supreme Court
denied Certiorari in McCrory in May 2017, thus ending the litigation over H.B. 589.
See North Carolina v. N. Carolina State Conf. of NAACP, 137 S. Ct. 1399 (Mem)
(2017).
¶7 A little over a year later in 2018, and following the United States Supreme
Court’s final decision in North Carolina v. Covington, 138 S. Ct. 2548 (2018), which
conclusively established that North Carolina’s racially gerrymandered districts
would need to be redrawn, Republican leadership in the General Assembly voted to
place a proposed constitutional amendment requiring voter photo identification on
the November 2018 general election ballot. This proposed constitutional amendment,
embodied in H.B. 1092, was enacted more quickly than other bills proposing
constitutional amendments and was not accompanied by legislation necessary to
implement the amendment if it met voter approval. Because voters were not provided
with implementing legislation, North Carolinians were not able to consider the
potential significance or impact the constitutional amendment would have.
Specifically, the voters did not receive details regarding the kinds of identification
that would be required if the amendment passed.
¶8 North Carolina voters approved H.B. 1092, while simultaneously electing a
sufficient number of Democrats to the General Assembly to eliminate the Republican
supermajority in both houses. Thus, in order to enact the voter ID law, S.B. 824, in
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its preferred form and before Republicans lost their supermajority, the General
Assembly reconvened in a post-election lame duck session to consider the law’s
implementing legislation. This scenario occurred despite the fact that enabling
legislation for another constitutional amendment approved during the same election
passed the following year after newly elected legislators took their seats and
Republicans lost their supermajority. S.B. 824 was enacted over Governor Cooper’s
veto on 19 December 2018. Plaintiffs Jabari Holmes, Fred Culp, Daniel E. Smith,
Brenden Jaden Peay, and Paul Kearney, Sr. immediately challenged the law, alleging
it violated the Equal Protection Clause in article I, section 19 of the North Carolina
Constitution because it was enacted with intent to discriminate against voters of
color, including African-American voters. That same day, plaintiffs also filed a motion
for a preliminary injunction seeking to prevent implementation of S.B. 824.
Legislative and State defendants (defendants) moved to dismiss the action on 22
January 2019 and 21 February 2019, respectively. The court denied legislative
defendants’ motion to dismiss plaintiffs’ claims I and II pursuant to Rule 12(b)(1) of
the North Carolina Rules of Civil Procedure.
¶9 The Chief Justice of the Supreme Court of North Carolina transferred the case
to a three-judge panel to consider the remaining challenges and request for injunctive
relief. On 19 July 2019, the three-judge panel granted the motions to dismiss in part
and also denied the motion for preliminary injunction. Although the trial court found
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that plaintiffs had “made sufficient factual allegations to support” that defendants
intentionally enacted a racially discriminatory law in violation of article I, section 19
of the North Carolina Constitution, it dismissed the remaining constitutional
challenges. In denying plaintiffs’ request for a preliminary injunction, the two-judge
majority of the panel noted only that plaintiffs failed to demonstrate a likelihood of
success on the merits of their claim that S.B. 824 violated their equal protection rights
under article I, section 19 of the North Carolina Constitution. Judge O’Foghludha
dissented in part stating that a preliminary injunction was warranted because
plaintiffs had shown a reasonable likelihood of success on the merits of their
intentional discrimination claim.
¶ 10 Plaintiffs sought review of the trial court’s interlocutory order denying their
preliminary injunction motion. On 30 August 2019, plaintiffs requested that this
Court grant discretionary review prior to a determination by the Court of Appeals;
however, this Court denied the petition. On 18 February 2020, the Court of Appeals
issued a unanimous decision reversing the trial court, holding that plaintiffs had
shown a likelihood of success on their discriminatory intent claim and that they were
“likely to sustain irreparable loss unless the injunction [was] issued.” Holmes, 270
N.C. App at 34, 35 (cleaned up). Accordingly, the Court of Appeals directed the trial
court to enter a preliminary injunction barring implementation of S.B. 824 until a
determination on the merits was made. Id. at 36. Legislative defendants filed a
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motion for rehearing en banc which the Court of Appeals denied on 24 March 2020
and the case was remanded back to the trial court. Holmes v. Moore, No. 19-762 (N.C.
App. Mar. 24 2020) (order denying motion for rehearing en banc).
¶ 11 On 10 August 2020, the three-judge panel entered an order in accordance with
the Court of Appeals decision preliminarily enjoining implementation of S.B. 824.
Holmes v. Moore, No. 18 CVS 15292 (N.C. Super. Ct. Wake County Aug 10, 2020). In
reaching its final decision in this case, the three-judge panel held a three week trial,
and created a lengthy six volume record, of over one thousand pages, which included
extensive discovery from both parties.
¶ 12 On 17 September 2021, the three-judge panel entered its final judgment, in a
one hundred five page order, permanently enjoining operation of S.B. 824 because it
violated the Equal Protection Clause in article I, section 19 of the North Carolina
Constitution. The majority of the three-judge panel found “the evidence at trial
sufficient to show that the enactment of S.B. 824 was motivated at least in part by
an unconstitutional intent to target African American voters,” even if no member of
the General Assembly “harbor[ed] any racial animus or hatred towards African
American voters.” The majority noted that, “as with H.B. 589, . . . the Republican
majority ‘target[ed] voters who, based on race, were unlikely to vote for the majority
party’ ” and “[e]ven if done for partisan ends, [this] constitut[ed] racial
discrimination.” (first alteration in original) (quoting McCrory, 831 F. 3d at 233)
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Moreover, the majority concluded that defendants “failed to prove . . . that S.B. 824
would have been enacted in its present form if it did not tend to discriminate against
African American voters.” Specifically, the court noted that a less restrictive voter ID
law would have been sufficient to achieve the legitimate non-racial purposes provided
by defendants, namely, implementing the constitutional amendment requiring voter
ID, deterring voter fraud, and enhancing voter confidence. State and Legislative
defendants appealed, and this Court granted discretionary review prior to a
determination by the Court of Appeals on 2 March 2022.
II. Standard of Review
¶ 13 A challenge to the constitutionality of a statute is reviewed de novo. Cooper v.
Berger, 376 N.C. 22, 56 (2020). When the trial court conducts a trial without a jury,
“the trial court’s findings of fact have the force and effect of a jury verdict and are
conclusive on appeal if there is competent evidence to support them, even [if] the
evidence could be viewed as supporting a different finding.” In re Estate of Skinner,
370 N.C. 126, 139 (2017) (quoting Bailey v. State, 348 N.C. 130, 146 (1998)). Findings
of fact that are “supported by competent, material and substantial evidence in view
of the entire record, are conclusive upon a reviewing court and not within the scope
[of its] reviewing powers[.]” Id. at 139 (quoting In re Revocation of Berman, 245 N.C.
612, 616–17 (1957)).
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III. Arlington Heights Factors
¶ 14 “[T]he principle of the equal protection of the law, made explicit in the
Fourteenth Amendment to the Constitution of the United States . . . has now been
expressly incorporated in Art. I, § 19, of the Constitution of North Carolina . . .” S. S.
Kresge Co. v. Davis, 277 N.C. 654, 660 (1971). Thus, while our state constitution
requires in-person voters to “present photographic identification before voting,” and
it is the General Assembly’s duty to enact voter ID laws to implement that
requirement, N.C. Const. art. VI, §§ 2(4), 3(2), the North Carolina Constitution also
demands that “[n]o person . . . [be] subjected to discrimination by the State because
of race, color, religion, or national origin,” id. art. I, § 19. North Carolina’s guarantee
of equal protection has also been held to be more expansive than the federal right.
See Stephenson v. Bartlett, 355 N.C. 354, 380-81, n 6 (2002) (stating that “this Court
has the authority to construe the State Constitution differently from the construction
by the United States Supreme Court of the Federal Constitution, as long as our
citizens are thereby accorded no lesser rights than they are guaranteed by the
parallel federal provision”) (quoting State v. Carter, 322 N.C. 709, 713 (1988);
Blankenship v. Bartlett, 363 N.C. 518, 526 (2009) (holding that “the right to vote in
superior court elections on substantially equal terms is a quasi-fundamental right
which is subject to a heightened level of scrutiny”). It is clear that the “central purpose
[of the Equal Protection Clause] is to prevent the States from purposefully
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discriminating between individuals on the basis of race.” Shaw, 509 U.S. at 642
(citing Washington v. Davis, 426 U.S. 229, 239 (1976)). That same purpose has been
incorporated into article I, section 19, of the Constitution of North Carolina.
¶ 15 We hold, and both parties agree, that to determine whether a law that is race-
neutral on its face nevertheless is motivated by a racially discriminatory purpose in
violation of article I, section 19 of the North Carolina Constitution, this Court should
apply the same analysis adopted by the United States Supreme Court in Village of
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).
In Arlington Heights, the United States Supreme Court identified a non-exhaustive
list of factors relevant to analyzing whether a law was passed with discriminatory
intent. Id. at 265–268. Those factors include: (1) “[t]he impact of the [law]” and
“whether it bears more heavily on one race than another”; (2) the law’s “historical
background”; (3) “[t]he specific sequence of events leading up to the challenged
decision”; (4) “departures from the normal procedural sequence”; (5) “[s]ubstantive
departures” from the normal process; and (6) the “legislative or administrative
history” of the decision. Id. at 266–68 (quoting Washington v. Davis, 426 U.S. at 242).
Under this test, even a seemingly neutral law violates the equal protection standard
if its enactment was motivated by “racially discriminatory intent or purpose.” Id. at
265. Discriminatory intent does not need to be the “primary” reason the law was
enacted, nor is racial animus required for a law to be invalidated. See McCrory, 831
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F.3d at 229. If racial discrimination was a motivating factor in passing the law, the
law will be found unconstitutional. Arlington Heights, 429 U.S. at 265–66.
¶ 16 The Arlington Heights factors are also part of a burden-shifting framework
which requires the reviewing court to grant judicial deference to a legislative body
unless there is proof that a discriminatory purpose was a motivating factor in the
challenged decision. Id. at 266. More recently, in Abbott v. Perez, 138 S. Ct. 2305(2018), the Supreme Court explained that the first step in the burden-shifting
analysis is that the “good faith of [the state] legislature must be presumed.” Id. at
2324 (cleaned up). But if discriminatory purpose is established, “judicial deference is
no longer justified.” Arlington Heights, 429 U.S. at 266.
A. The Impact of S.B. 824 on African-American Voters
¶ 17 The United States Supreme Court has made clear that “official action will not
be held unconstitutional solely because it results in a racially disproportionate
impact.” Id. at 264–65 (citing Washington v. Davis, 426 U.S. 229 (1976)). Yet
“[d]isproportionate impact is not irrelevant,” id. at 265 (quoting Washington v. Davis,
426 U.S. at 242), and determining “whether invidious discriminatory purpose was a
motivating factor demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available,” id. at 266. Accordingly, “[t]he impact of the
official action– whether it ‘bears more heavily on one race than another’– may provide
an important starting point” for this analysis. Id. at 266 (quoting Washington v.
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Davis, 426 U.S. at 242). An “overwhelming” disparate impact is not needed to show
discriminatory intent. McCrory, 831 F.3d at 231. In this case, evidence that voters of
color disproportionately lack the forms of ID required under S.B. 824 is sufficient to
show disparate impact. Id.
¶ 18 The trial court considered an analysis by plaintiffs’ expert Kevin Quinn which
showed that, similarly to H.B. 589, S.B. 824 was very likely to have a disproportionate
impact on African-American voters. Especially pertinent was evidence showing that
African-American voters are approximately 39% more likely than white voters to lack
forms of ID qualifying under S.B. 824. Defendants argued that S.B. 824’s ameliorative
provisions, the reasonable impediment process, and the availability of free IDs
mitigated the disparate impact of S.B. 824 on African- American voters. But the trial
court, relying on McCrory, concluded that determining whether portions of the law
had an ameliorative effect and reduced S.B. 824’s impact on African-American voters
was the incorrect standard to apply. 831 F.3d at 231. Instead, because plaintiffs do
not need to show an “overwhelming impact,” whether portions of the law reduce S.B.
824’s disparate effect does not mean that sufficient disparate impact fails to exist. Id.
Rather, because some disparate impact exists and plaintiffs have come forward with
evidence of discriminatory intent, these factors must be considered under an
Arlington Heights analysis. The trial court acknowledged that some of the data used
to determine the impact of S.B. 824 come from a previous examination of the effect of
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H.B. 589. In doing so, the trial court stated that although it is possible that the
disparities in ID possession rates could be lower under S.B. 824 than under H.B. 589,
this variance does not change or affect the conclusion that disparate impact exists.
Under Arlington Heights, the appropriate question is simply whether S.B. 824 “bears
more heavily” on African-American voters. 429 U.S. at 266 (quoting Washington v.
Davis, 426 U.S. at 242).
¶ 19 Importantly, the trial court found that it did not need to find definitively that
S.B. 824 would in fact disenfranchise African-American voters if the law went into
effect. Whether African-American voters are able to overcome the barriers S.B. 824
disproportionately places in their path does not change the fact that disparate impact
exists, nor does it change the intent of the North Carolina General Assembly in
passing the law.
¶ 20 Here the trial court determined a disparate impact existed, finding as a fact
that the ameliorative provisions of the statute did not have their purported effect.
First, the court found that evidence showed that for some voters, obtaining a
qualifying ID, even a free ID, would not actually be cost-free or burden-free. And these
burdens would weigh more heavily on African-American voters. For example, Jabari
Holmes, one of the named plaintiffs, would face significant obstacles in obtaining a
free ID card because of his disabilities and his family’s income status. East Wake
High School where Jabari’s family votes, is only two and one-half miles from their
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home, and a short ten minute drive. But the Wake County Board of Elections office,
where Jabari would need to go to obtain a free photo ID, is eleven and one-half miles
from his home and is a much longer drive, which creates a greater risk that Jabari
will experience discomfort because of his disabilities. Also because of his disabilities,
Jabari only leaves his home a few times a week, almost always for a medical
appointment. In the past, Jabari’s mother had paid a family friend to take Jabari on
social outings, like the mall or to the movies once or twice a week. These outings only
occurred in the summer because the family friend was a teacher who worked during
the school year. In order for Jabari to obtain an acceptable ID his mother would
potentially need to pay someone to take him to the Wake County Board of Elections.
Based on these facts, the trial court noted that paying someone to take Jabari to the
Wake County Board of Elections and obtain an ID would deplete funds set aside for
Jabari’s current and future care. Thus, for Jabari and others like him, a “free ID”
would not actually be cost or burden free.
¶ 21 The trial court also found that the reasonable impediment declaration process
did not eliminate the disparate impact of the law.2 The trial court examined data from
H.B. 589’s similar reasonable impediment provision which was in effect during the
2 The dissent states we “mischaracterize” S.B. 824 because it specifically states “[a]ll
registered voters will be allowed to vote with or without a photo ID card.” See S.B. 824 §
1.5(a)(10). In doing so, the dissent fails to appreciate the distinction between being able to
legally cast a vote and having that vote actually counted. Mr. Smith and Mr. Kearney’s
experiences, detailed below, illustrate this principle.
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March 2016 primary. This data showed that H.B. 589’s reasonable impediment
provision was “not uniformly provided to voters, and the process is susceptible to error
and implicit bias.” For example, the trial court found the specific experiences of
plaintiffs Daniel Smith and Paul Kearney to be significant. Both Mr. Smith and Mr.
Kearney were not given proper instruction on how to complete a reasonable
impediment ballot during the March 2016 primary. In Mr. Smith’s case, he had
misplaced his regular driver’s license and accordingly sought a temporary license
from the Department of Motor Vehicles (DMV). From his conversation with workers
at the DMV, Mr. Smith believed he could use his temporary license in the same
manner as his regular license. But when Mr. Smith arrived at his polling place and
presented his temporary driver’s license, he was asked to step out of line while the
poll workers discussed whether his temporary driver’s license could be used to vote.
This was both frustrating and embarrassing for Mr. Smith. Meanwhile, the poll
workers appeared to be confused and admitted they were unsure whether Mr. Smith
could use his temporary license to vote. Although a reasonable impediment
declaration was available, that option was not offered to Mr. Smith, nor was he told
he could use a reasonable impediment declaration to vote. Instead, Mr. Smith was
offered a provisional ballot, which needed to be cured before it could be counted.
Because Mr. Smith had never cast a provisional ballot, he was unaware of this
requirement, and since that process was not explained to him, his vote was not
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counted.
¶ 22 Mr. Kearney had a similar experience when he arrived at his local polling place
to vote. Although Mr. Kearney had a valid ID, he was unable to bring it with him on
election day due to an emergency on his farm. When he informed the poll workers of
this situation, he was told “they would need to make some arrangements for him to
vote,” and he was given a provisional ballot; however, he did not receive any
information regarding the need to follow up with the county board of elections to
ensure his vote was counted. Furthermore, even though a reasonable impediment
declaration was available, Mr. Kearney was not provided with the applicable form
nor was he advised he could use it. Following the 2016 primary election, Mr. Kearney
was disheartened to learn his vote was not counted.
¶ 23 Based on this and other evidence, the court found that the reasonable
impediment process could be confusing to voters and deter them from voting.
Specifically, the trial court noted that a hesitant or infrequent voter may be deterred
from voting via a reasonable impediment declaration because the process is
unfamiliar or because it appears the voter is being treated differently from everyone
else at the polls. As an example, the court identified Alamance County, where voters
who are offered provisional ballots sometimes choose not to vote at all. Taking this
all together, the court found that because African-American voters were more likely
to lack an approved ID at higher rates than white voters, they would be
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disproportionately impacted by these shortcomings in the reasonable impediment
process.
¶ 24 Despite the trial court’s findings to the contrary, defendants argue that S.B.
824 does not disparately impact African American voters because the statute “goes
out of its way to make its impact as burden free as possible.” See Lee v. Va. State Bd.
of Elections, 843 F.3d 592, 603 (4th Cir. 2016) (concluding that Virginia’s photo voter
ID law went “out of its way to make its impact as burden-free as possible”). To support
this contention, defendants provide case examples from across the country in which
a court has found voter ID laws constitutional because those laws included provisions
that sufficiently mitigated the disparate impact created by the law. See, e.g., id.;
South Carolina v. United States, 898 F. Supp. 2d 30, 32, 40 (D.D.C. 2012) (upholding
a voter ID law despite acknowledging a racial disparity in ID possession rates in
South Carolina); Veasey v. Abbott, 888 F.3d 792, 804 (5th Cir. 2018) (reversing a
preliminary injunction barring implementation of a voter ID law because the lower
court had failed to account for the reasonable impediment provision); Frank v.
Walker, 768 F.3d 744, 755 (7th Cir. 2014) (vacated in part, 819 F.3d 384 (7th Cir.
2016) (reversing an injunction barring implementation of a Wisconsin photo ID law
that did not have a reasonable impediment provision)). But this analysis is not the
one contemplated by the United States Supreme Court in Arlington Heights. For
under Arlington Heights it matters not if other laws have been upheld in other
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jurisdictions and in other circumstances, instead, what matters is whether under the
facts and circumstances present in the current case, under the specific pressures
North Carolina faces, the challenged law “bears more heavily on one race than
another.” 429 U.S. at 266 (quoting Washington v. Davis, 426 U.S. at 242) (analyzing
a denial of rezoning by the Village of Arlington Heights to determine whether this
action was motivated by discriminatory intent).
¶ 25 State defendants also argue that the trial court did not give enough weight to
S.B. 824’s purported ameliorative provisions; however, this argument requires this
Court to usurp the trial court’s fact-finding function. Here the trial court carefully
analyzed S.B. 824, through receiving and considering testimony supporting that S.B.
824 has a disparate impact on African-American voters and that the purported
ameliorative provisions do not have an ameliorative effect.
¶ 26 Importantly, the trial court also properly determined that it did not need to
find definitively that S.B. 824 would in fact disenfranchise African-American voters
if the bill were allowed to go into effect. This is because even if African-American
voters are able to overcome the barriers that S.B. 824 disproportionately places in
their path and they cast a ballot that is counted, racially disparate impact still exists.
Nor does African-Americans’ ultimate success in voting necessarily mean that this
factor, when taken into consideration with the other Arlington Heights factors, does
not tend to show that the law was enacted with the intent to deter and discourage the
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political participation of African-American voters.3
¶ 27 Here the trial court’s findings regarding the disparate impact of S.B. 824 are
supported by testimony that the purported ameliorative provisions fail to have an
ameliorative effect. Thus, we hold that the evidence considered by the trial court
supports its conclusion that S.B. 824 has a disparate impact and that this impact
“bears more heavily on one race than another,” namely on African-American voters.
See Arlington Heights, 429 U.S. at 266 (quoting Washington v. Davis, 426 U.S. at
242). We also hold that, although disparate impact is only one portion of the Arlington
Heights analysis, which on its own cannot support an inference of discriminatory
intent, when combined with the factors explained in more detail below, the court’s
findings of disparate impact support an inference that S.B. 824 was passed with the
impermissible discriminatory intent to target African-American voters.
3 In this context, a racially discriminatory impact is only one element of the Arlington
Heights standard, not a prerequisite. To be sure, “[t]he question of whether discriminatory
intent can, by itself, without discriminatory effect, violate the constitution presents a
somewhat odd hypothetical that could be described as the ‘incompetent discriminator’—the
actor who intends to discriminate but fails to actually do so effectively.” Dale E. Ho, Voting
rights litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial
Claims, 17 N.Y.U. J. Legis. & Pub. Pol’y 675, 695 n.80. However, that is not the issue raised
by this case. Here defendants dispute the weight the trial court gave to this factor, but the
trial court’s findings were supported by evidence in the record. In Arlington Heights, the
Court stated that finding an Equal Protection violation requires “proof of racially
discriminatory intent” and that although disproportionate impact is not “irrelevant,” it is “not
the sole touchstone of an invidious racial discrimination.” 429 U.S. at 265 (quoting
Washington v. Davis, 426 U.S. at 242).
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B. Historical Background of S.B. 824
¶ 28 “The historical background of [a] decision is one evidentiary source [used to
prove intentional discrimination], particularly if it reveals a series of official actions
taken for invidious purposes.” Id. at 267. Furthermore, “[an] historical pattern of laws
producing discriminatory results provides important context for determining whether
the same decision-making body has also enacted a law with discriminatory purpose.”
McCrory, 831 F.3d at 223–24.
¶ 29 “Just as with other states in the South, ‘North Carolina has a long history of
race discrimination generally, and race-based voter suppression in particular.’ ”
Holmes, 270 N.C. App. at 20–21 (quoting McCrory, 831 F. 3d 223). The trial court
concluded that the historical context in which the General Assembly enacted S.B. 824
supported the inference that the measure had been passed with the intent to
discriminate against African-American voters. The trial court based this conclusion
on extensive testimony by expert historians who explained that there is a recurring
pattern in North Carolina in which expansion of voting rights and ballot access for
African-Americans is followed by the enactment of facially neutral laws that both
intend to, and have the effect of, diluting African-American votes. The trial court
found this pattern had repeated itself at least three times in North Carolina history.
¶ 30 In 1868 the North Carolina Constitution guaranteed every male adult citizen
the right to vote. This guarantee resulted in an increase in African-American political
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participation from Reconstruction to the end of the nineteenth century; however, this
situation was short-lived because Democrats implemented and passed an
amendment to the North Carolina Constitution to require a literacy test and payment
of a poll tax in order to vote. This enactment resulted in the disenfranchisement of
many African-American North Carolinians and their removal from political
participation in our State. Yet, despite the literacy tests, poll taxes, and Jim Crow
laws, African-American voters achieved some hard won political success through
mobilizing African-American community members to challenge the literacy tests
through repeated efforts to pass it. As a result, by the mid-1950s, approximately a
dozen African-American officials were elected in North Carolina at the municipal and
county levels.
¶ 31 Nonetheless, in the 1950s and 1960s, in an effort to thwart African American
political power, the North Carolina General Assembly enacted at-large, multimember
districts and prohibited single-shot voting. These measures were not passed as part
of one single piece of legislation and instead were implemented in a “piecemeal
fashion” under the guise of voter fraud protections. These provisions ended the
election of African-American candidates at the local level, and by 1971 there were
only two African-American lawmakers in the General Assembly. It is important to
note that in Stephenson v. Bartlett, 355 N.C. at 376–77, this Court explained that
“[a]lthough the United States Supreme Court has held that multi-member districts
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are not per se invalid under the federal Equal Protection Clause,” (first citing
Whitcomb v. Chavis, 403 U.S. 124, 142 (1971); the Court has “recognized that multi-
member districts may well ‘operate to minimize or cancel out the voting strength of
racial or political elements of the voting population,” and then quoting Fortson v.
Dorsey, 379 U.S. 433, 439 (1965)).
¶ 32 After the Voting Rights Act of 1965 was passed and judicial intervention
enforced the Act, states were forced to remove the barriers to African American voting
that had been implemented during the 1950s and 1960s. During this time, the North
Carolina General Assembly passed laws that increased access to voting, such as early
voting, out-of-precinct voting, same day registration, and pre-registration for teens
with driver’s licenses, which collectively increased African-American voter
registration by fifty percent. Yet, efforts to suppress African-American voting did not
end. For example, in 1990, the State Republican party sent postcards to voters in
majority African-American precincts falsely warning these voters that they would not
be allowed to vote if they had moved within thirty days. The postcards also incorrectly
stated that if those who had moved within the last thirty days attempted to vote, they
would be subject to prosecution and imprisonment.
¶ 33 From 2000 to 2012, African-American voter registration increased by 51.1 %
and African-American voter turnout increased from 41.9 % in 2000 to 71.5 % in 2008.
In the 2008 and 2012 elections, and for the first time in North Carolina history,
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African-American voters registered to vote at rates higher than white voters. Since
2010, Republicans have controlled both chambers of the General Assembly, and for
three of the five legislative terms since the 2010 election, the Republican majorities
were supermajorities, meaning there would be sufficient Republican votes to override
a gubernatorial veto.
¶ 34 The 2008 presidential election demonstrated the effect of racially polarized
voting in North Carolina. There the Democratic presidential candidate, Barack
Obama, won North Carolina by only 14,171 votes out of 4,271,125 ballots cast.
President Obama received ninety-five percent of the African-American vote in this
state. But this most recent expansion of African-American political participation was
again met with additional attempts at voter suppression. In 2011, the Republican
majority ratified H.B. 351, which required a photo ID to vote; however, this bill was
vetoed by Governor Beverly Perdue because “as written [it would have] unnecessarily
and unfairly disenfranchise[d] many eligible and legitimate voters.”
¶ 35 In early 2013, before enacting H.B. 589, Republican legislators in the General
Assembly sought voter turnout data disaggregated by race. H.B. 589 was passed
immediately following the U.S. Supreme Court decision in Shelby County v. Holder,
570 U.S. 529 (2013), which invalidated the Voting Rights Act’s coverage formula and
effectively ended the Act’s Section 5 preclearance requirements. Although H.B. 589
did not evidence racial discrimination on its face, its provisions targeted the voting
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mechanisms that had previously increased African-American voter turnout. In
particular, H.B. 589 required specific forms of ID that African-Americans were more
likely to lack, eliminated the first week of early voting, including same day
registration, straight-ticket voting, and pre-registration for teenagers in high school,
and repealed other provisions which had previously been used to expand access to the
ballot box. Finally, H.B. 589 also revised the rules for challenging voters’ eligibility
to cast a ballot, which some believed “increased the potential for voter intimidation
and echoed Reconstruction–and Jim Crow–era attempts to undermine Black voter
participation.” In 2016, the Court of Appeals for the Fourth Circuit invalidated H.B.
589 in McCrory, concluding that H.B. 589 had been enacted with the unconstitutional
discriminatory intent to target African-American voters. McCrory, 831 F.3d at 241–
42.
¶ 36 The trial court found that even after H.B. 589 was invalidated, attempts to
suppress African-American votes continued with the executive director of the state
Republican Party encouraging county boards of elections to reduce the number of
early voting sites and the hours they were open. Because H.B. 589 had been
invalidated, there was no legal authority to shorten the early voting period, but the
same effect could be achieved by, reducing access via cutting the number of early
voting sites and their hours of operation.
¶ 37 The trial court also found that this continuing pattern in which increased
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African-American political participation was followed by attempts to suppress the
same was motivated, at least in part, by the racially polarized nature of voting in
North Carolina. Indeed, the trial court explained that given this demographic
information, “it would be rational to expect a political party to pursue policies that
would entrench its own control by targeting African American voters if those voters
vote reliably for the opposition party.”
¶ 38 State defendants argue that under Abbott v. Perez, past discrimination alone
cannot condemn governmental action that is not itself unlawful. 138 S. Ct. at 2324.
While this is true, Abbott subsequently noted that “the ‘historical background’ of a
legislative enactment is ‘one evidentiary source’ relevant to the question of intent.”
Id. at 2325 (quoting Arlington Heights, 429 U.S. at 267). In this case the trial court
considered S.B. 824’s historical background among the other factors identified by the
Court in Arlington Heights. See 429 U.S. at 265–268. Thus, there is no evidence that
the trial court based its analysis on North Carolina’s history of race-based
discrimination alone but instead correctly followed the analysis in Arlington Heights,
using the historical background of the law as one piece of circumstantial evidence.
See id. at 267.
¶ 39 State defendants also argue that because S.B. 824 was passed in response to a
constitutional amendment requiring the General Assembly to enact a voter ID law,
this circumstance should break the link to North Carolina’s history of discriminatory
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laws, namely, between H.B. 589 and S.B. 824. In making this argument, State
defendants cite to North Carolina State Conference of the NAACP v. Raymond, 981
F.3d 295 (4th Cir. 2020), which determined that the constitutional amendment at
issue “served as an independent intervening event between the General Assembly’s
passage of [H.B. 589] and its enactment of [S.B. 824].” Id. at 305. There the Fourth
Circuit stated that because the people of North Carolina had passed the
constitutional amendment, thus “interject[ing] their voice into the process [and]
mandating that the General Assembly pass a voter-ID law,” the link between the
General Assembly’s passage of the 2013 voter ID law and this voter ID law had been
broken. Id. While it is true that the people of North Carolina voted for an amendment,
imposing a voter ID requirement, there is no evidence the voters intended for the law
to be passed in its current form. In fact, the trial court made findings of fact that
because no implementing legislation accompanied the amendment voters did not
know the specifics of how the law would be implemented before casting their vote.
Furthermore, the analysis described in Arlington Heights required the trial court to
make findings of fact and consider S.B. 824’s historical background independent of
any constitutional amendment that may have required the law’s passage. See
Arlington Heights, 429 U.S. at 267 (“The historical background of the decision is one
evidentiary source, particularly if it reveals a series of official actions taken for
invidious purposes.”). The trial court faithfully adhered to this analysis.
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¶ 40 Furthermore, although we acknowledge that the Fourth Circuit’s ruling in
Raymond, 981 F.3d 295 (4th Cir.), determined that the sequence of events leading to
S.B. 824’s enactment, as well as its legislative history and disparate impact did not
support finding discriminatory intent, that case is neither controlling nor persuasive
authority because it is based on an entirely different factual record. See id. at 305.
The Raymond Court did not have the benefit of the many lay and expert witnesses
who presented evidence to the trial court in this case.4 Here, the trial court’s ruling
was based on a full and final record, which was the result of extensive discovery, and
a three-week bench trial complete with the testimony of multiple witnesses. In
contrast, Raymond was based on a preliminary pre-trial record. Raymond, 981 F.3d
at 301. Thus, Raymond is not instructive because even though Raymond reviewed
the same voter ID law, S.B. 824, and determined the law was not passed with racially
discriminatory intent, it is impossible to know if the Fourth Circuit would have
4 For example, the court in Raymond did not have the benefit of the following evidence
when it determined S.B. 824 was not passed with discriminatory intent: (1) The expert
testimony of Sabra Faires discussing the ways the sequence of events leading to S.B. 824’s
passage and its legislative history were unusual; (2) the expert testimony of Dr. Kevin Quinn
showing the disproportionate rates at which African American voters lacked qualifying ID
compared to white voters and how the IDs added under S.B. 824 failed to remediate that
disparity; (3) the expert testimony of Dr. Ariel White discussing the disproportionate impact
of reasonable impediment provisions, similar to S.B. 824’s, on African American voters; (4)
the testimony from multiple legislator witnesses, including supporters and opponents of S.B.
824; (5) the testimony from Dr. Callanan, defendant’s expert witness, confirming that the
Republican supermajority acted during the lame duck session and that it would be rational
to expect a party in power to entrench itself by enacting laws targeting African American
voters if those voters reliably cast ballots for the opposition.
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reached the same conclusion with the benefit of the record before the trial court in
this case.
¶ 41 Defendants also argue the trial court ignored Arlington Heights’ burden-
shifting requirement which affords the legislature judicial deference unless
discriminatory intent has been proved. Specifically, they argue that when the trial
court analyzed S.B. 824’s history, which included a history of racially discriminatory
voting laws including H.B. 589, it impermissibly shifted the burden to the defendants.
They argue it was improper to consider the extent to which legislators involved in
enacting those prior laws were also involved in enacting S.B. 824. But neither
Arlington Heights nor Abbott v. Perez precludes this analysis. In Abbott v. Perez, the
Court expressly acknowledged that historical evidence is a relevant part of the
Arlington Heights analysis, Abbott, 138 S. Ct. at 2324 (citing Arlington Heights, 429
U.S. at 267), and perhaps more importantly, that as part of this analysis, history can
be used as one source of evidence to rebut and overcome a presumption of legislative
good faith. See id. at 2324–25 (citing Arlington Heights 429 U.S. at 267); Arlington
Heights, 429 U.S. at 265–66 (enumerating the factors relevant to analyzing whether
discriminatory intent exists and stating that if there is “proof that a discriminatory
purpose has been a motivating factor in the decision, . . . judicial deference is no longer
justified”). Thus, under both Arlington Heights and Abbott, it was proper for the trial
court to consider that legislators who previously voted for H.B. 589 were aware of the
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racial disparities in ID possession rates and that, based on that information, they
would understand that S.B. 824 could likewise disproportionately impact African-
American voters.
¶ 42 Accordingly, we hold that the trial court not only applied the correct legal
standard when analyzing S.B. 824’s historical background, but that the court’s
findings of fact are supported by competent evidence in the record. Thus, we hold that
the historical background of S.B. 824 supports the finding that S.B. 824 was passed
with the discriminatory intent to target African-American voters. In doing so, we
make clear that, while on its own, the historical background of a law cannot condemn
lawful actions by the legislature, Abbott v. Perez, 138 S. Ct. at 2324, taken together
with the other Arlington Heights factors, the historical background here supports the
inference that S.B. 824 was enacted with discriminatory intent.
C. The Sequence of Events Leading to S.B. 824’s Enactment
¶ 43 Under the Arlington Heights factors, “[t]he specific sequence of events leading
up to the challenged decision also may shed some light on the decisionmaker’s
purposes.” 429 U.S. at 267. Furthermore, “[d]epartures from the normal procedural
sequence” can be “evidence that improper purposes are playing a role,” id. and the
legislature does not need to “break its own rules to engage in usual procedures,”
McCrory, 831 F.3d at 228.
¶ 44 The trial court determined that the way in which S.B. 824 was passed
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“show[ed] an intent to push through legislation prior to losing [Republican]
supermajority status and over the governor’s veto.” On 29 June 2019, the North
Carolina General Assembly ratified H.B. 1092, which proposed an amendment to the
North Carolina Constitution requiring voters to produce an ID as a condition for being
allowed to vote. The amendment appeared on the November 2018 general election
ballot, and it was approved by a majority of the voters. The trial court outlined six
examples evidencing H.B. 1092’s departure from normal procedures: (1) H.B. 1092
was immediately ratified following the Supreme Court’s decision in Covington, 138
S. Ct. 2548 (2018); (2) H.B. 1092 was enacted during a short session of the General
Assembly; (3) H.B. 1092 was passed along with an atypically large number of other
proposed constitutional amendments; (4) H.B. 1092 was not accompanied by proposed
legislation which would be necessary to implement its provisions if adopted by the
voters; (5) the ballot question that presented H.B. 1092 did not explain to voters that
the General Assembly would need to enact additional laws to implement the
amendment; and (6) North Carolina voters had less time than usual to consider the
constitutional amendment before voting on it.
¶ 45 Data available following the United States Supreme Court’s decision in
Covington showed that eliminating the racially gerrymandered districts identified in
that litigation would likely result in fewer Republican districts and increase the
chance for Democrats to gain General Assembly seats. The Court entered its decision
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in Covington on 28 June 2018, and the following day, the North Carolina General
Assembly enacted H.B. 1092. The trial court reasoned that passing H.B. 1092 the day
after the Supreme Court’s decision in Covington, evidenced an effort and intent by
Republicans in the General Assembly to preserve a Republican supermajority that
had been elected in part by voters in racially gerrymandered districts.
¶ 46 Furthermore, the fact that H.B. 1092 was enacted in a short session, and on a
shorter timeline than other bills proposing constitutional amendments, was
significant to the trial court. Notably, between 1971 and 2018, forty-two of forty-five
proposed constitutional amendments were adopted during a long session. The trial
court also considered testimony by Representative Mary Price Harrison who has
served in the General Assembly and on the House Election Law and Campaign
Finance Reform Committee since 2005. Representative Harrison testified that, based
on her experience and the significance of H.B. 1092, the process for consideration of
this amendment had been “fairly rushed.” Thus, the trial court concluded that
consideration of this proposal during the short session and the short timeline between
the legislature’s passage of the measure and its appearance on the general election
ballot constituted a departure from normal procedure.
¶ 47 H.B. 1092 was also one of six constitutional amendments passed by the
General Assembly during the short session. Enacting such a high number of proposed
constitutional amendments in a single year is atypical for the General Assembly.
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Moreover, as previously noted, H.B. 1092 was not accompanied by proposed
implementing legislation. In the past, proposed constitutional amendments and any
legislation necessary to implement an amendment’s subject matter, were passed in
the same session and sometimes in the same bill. Yet the failure to follow normal
procedures or pass implementing legislation did not result from a lack of means to do
so by the General Assembly. Indeed, the trial court found that the General Assembly
could have considered implementing legislation either during the short session while
considering H.B. 1092 or during one of the separate extra sessions convened that year
to address election topics. Had the process moved at a more typical pace,
implementing legislation also could have been considered by the standing bipartisan
Joint Election Oversight Committee; however, that group did not meet between the
end of the short session and the November 2018 election.
¶ 48 The trial court also found it significant that the ballot question presenting the
constitutional amendment did not inform voters that it would be necessary for the
General Assembly to enact separate laws to implement the amendment. Yet, before
2018, if an amendment required implementing legislation, that matter was explained
on the ballot via the ballot question. But because H.B. 1092 deviated from normal
procedure, voters were left with incomplete information, namely, what types of IDs
would be acceptable if the amendment passed, or what, if any, additional laws would
need to be implemented in furtherance of the amendment.
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¶ 49 Moreover, the trial court found that North Carolina voters had less time than
usual to consider the constitutional amendment. This calculation was based on the
average amount of time between the enactment of a law proposing a constitutional
amendment and the date on which voters would decide on the referendum. Here,
while the average length of time voters have to decide on a referendum is 337 days,
in this case North Carolina voters only had 130 days to consider H.B. 1092.
¶ 50 The trial court also found it significant that the General Assembly’s Republican
supermajority chose to enact S.B. 824 during a lame duck session over Governor
Cooper’s veto. This process was unprecedented and was found to violate the General
Assembly’s norms and procedures in several ways. It is important to note that in the
same election in which voters approved the constitutional amendment requiring voter
ID (H.B. 1092), Republicans lost ten of the seventy-five seats they had held in the
North Carolina House of Representatives and six of the thirty-five seats they
previously held in the North Carolina Senate. This meant that as of 1 January 2019,
Republicans would no longer enjoy a three-fifths supermajority in either the North
Carolina House of Representatives or the North Carolina Senate.
¶ 51 The trial court found that no other legislation implementing a constitutional
amendment had ever been enacted in a post-election lame duck session, and the lame
duck session in which the General Assembly passed S.B. 824 was the only reconvened
regular session in North Carolina history to be held following a November general
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election, conducted so shortly before newly elected officials took office two months
later. This scenario occurred despite there being no need for the General Assembly to
reconvene for that purpose before January of the following year. Indeed, in the same
2018 November general election, voters also approved another constitutional
amendment (Marsy’s Law) which also required implementing legislation; however,
the General Assembly did not pass implementing legislation for this new amendment
until August 2019, well after the new legislature had been seated. Taking all this
information together, the trial court found that the evidence suggested that
Republicans wanted to entrench themselves by passing a more restrictive version of
the voter ID law and that convening the lame duck session was consistent with the
hypothesis that the Republican supermajority did not want to pass a “ ‘watered down’
voter ID law–i.e., a law that would have been more flexible and included more forms
of qualifying ID if it had been passed once the incoming 2019 legislature was seated.”
¶ 52 Importantly, legislative defendants admitted their actions were designed to
keep newly elected legislators from voting on the implementing legislation to the
constitutional amendment. While legislative defendants saw these actions as a valid
use of Republicans’ supermajority power, the trial court reasoned instead that these
events evidenced an attempt to use authority improperly gained through the use of
racially gerrymandered districts that had been invalidated in Covington. And,
according to the court, without the benefit of the racially gerrymandered districts,
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legislative defendants would not have had a supermajority and no voter ID bill would
have been offered or passed.
¶ 53 In the face of this overwhelming evidence, legislative and state defendants
maintain that the sequence of events surrounding the passage of S.B. 824 does not
show discriminatory intent. State defendants contend that, although under McCrory
a legislature does “not need to break its own rules to engage in unusual procedures,”
there must be evidence that creates an “inference that is strong enough to overcome
the presumption of legislative good faith.” To support this assertion that the evidence
here was not sufficient, defendants provide examples of different circumstances from
both Veasey and McCrory. In Veasey the Fifth Circuit found that, inter alia,
suspension of the two-thirds rule regarding the number of votes required to accelerate
the challenged bill’s consideration and the absence of a fiscal note for that same
measure were sufficient to show a drastic and unprecedented deviation from the
usual process for adopting legislation. Veasey v. Abbott, 830 F.3d 216, 238 (5th Cir.
2016) (en banc), rev’d in part, 888 F.3d 192 (5th Cir. 2018). While the facts in Veasey
show how the Texas legislature failed to follow its normal procedures, that is not the
only way to demonstrate a deviation. The Arlington Heights analysis relies on the
facts of a particular case, including the procedures of the body that passed the
challenged law. Arlington Heights, 429 U.S. at 269–70 (analyzing the sequence of
events leading to the Village’s denial of a re-zoning request). In Abbott v. Perez, the
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United States Supreme Court emphasized this point, stating that “[t]he ultimate
question remains whether a discriminatory intent has been proved in a given case.”
138 S. Ct. at 2324–25 (cleaned up). Thus, the facts in Veasey are interesting but not
determinative of whether the North Carolina legislature deviated from its normal
procedures in passing S.B. 824.
¶ 54 Defendants also note that in McCrory, the Fourth Circuit characterized the
sequence of events leading to the passage of H.B. 589 as a “suspicious narrative,”
McCrory, 831 F.3d at 228, because before the enactment of H.B. 589, a much more
modest voter ID bill went untouched for months until the Supreme Court’s decision
in Shelby County. Defendants offer the facts in McCrory as an example of a case that
supports an inference of discriminatory intent by the legislature, namely, that before
its enactment the original, more modest bill grew from sixteen to fifty-seven pages,
that the bill was “rushed” through the legislature and ratified in three days, and that
the vote proceeded on strict party lines. See McCrory, 831 F. 3d at 227–28. The facts
in McCrory are only relevant in this case to the extent they provide evidence of the
historical context of S.B. 824, or to the extent they are part of the events that led up
to S.B. 824’s passage. See Arlington Heights, 429 U.S. at 267. To the extent
defendants intend to show that the specific sequence of events leading up to the
passage of H.B. 589 is the only way a trial court can find evidence of discriminatory
intent, this argument is misguided. Under Arlington Heights, an analysis of
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discriminatory intent requires a review of the actions taken in this particular case.
429 U.S. at 269–70. Thus, the trial court was correct in conducting a factual inquiry
detailing the events leading up to the enactment of S.B. 824, based on the findings of
fact the court made in this particular case.
¶ 55 Legislative defendants argue that there are no North Carolina cases that
identically match the facts of this case and thus, not considering the relevant cases
from other states is the equivalent of “turning a blind eye” to situations that might
be informative. But this assertion cannot be true in light of the question to be
answered and the analysis required by Arlington Heights. Here the question is
whether the North Carolina legislature passed S.B. 824 with discriminatory intent.
Thus, it follows, and Arlington Heights confirms, that what is relevant are the facts
surrounding S.B. 824’s passage. What occurred in Texas, South Carolina, or Virginia,
in the course of passing other voter ID laws cannot be relevant to our inquiry.
¶ 56 Legislative defendants also advance another similar argument regarding the
General Assembly’s decision to convene a post-election lame duck session.
Specifically, defendants state that a lame duck session cannot justify suspicion under
an Arlington Heights analysis because these sessions are frequently used by “several
state legislatures . . . and in the United States Congress.” But as we have explained
above, this information cannot be relevant to an Arlington Heights analysis, which
requires an analysis of the specific conduct taken by the decision-making body that
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passed the challenged law. 429 U.S. at 269–70. Thus, what matters in this case is the
trial court’s findings of fact, based on expert testimony, which established that
convening a lame duck legislative session to enact a law implementing a
constitutional amendment was unprecedented in North Carolina.
¶ 57 Taking all this information together, we conclude that the trial court’s findings
of fact are supported by competent evidence and its application of Arlington Heights
to the sequence of events leading to S.B. 824’s enactment was correct. Accordingly,
we hold that the sequence of events leading up to S.B. 824’s passage supports the
determination that S.B. 824 was enacted with the discriminatory intent to target
African-American voters.
D. Legislative History of S.B. 824
¶ 58 The legislative history of a decision to enact a particular proposal may be
“highly relevant” in determining whether discriminatory intent was present in the
challenged decision. Arlington Heights, 429 U.S. at 268. The trial court concluded
that the legislative history of S.B. 824 indicated that the General Assembly intended
to target African-Americans voters in order to entrench the Republican majority. To
reach this conclusion, the trial court analyzed four actions: (1) the rushed passage of
the law; (2) the fact that proposed amendments that could have benefited African-
American voters were rejected; (3) the fact that S.B. 824 as written did not show an
attempt to cure the racial disparities embodied in H.B. 589; and (4) that there was
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little involvement by Democratic lawmakers in S.B. 824’s consideration and
enactment.
¶ 59 First, the trial court reviewed S.B. 824’s hasty enactment. There the court
found that the law had been passed in eight legislative days and a pre-filed draft was
circulated by its sponsors on 20 November 2018, the Tuesday before Thanksgiving,
when many legislators were preparing for the holiday with their families.
Furthermore, S.B. 824 was filed, introduced, referred to committee, and considered
by the committee all on the same day. This chain of events is highly atypical, and
generally during a regular session, committee consideration would take weeks, not
hours or days. Specifically, S.B. 824 was introduced in the Senate on 27 November
2018, the Tuesday following Thanksgiving, and then the bill was referred to the
Select Committee on Elections, which gave the bill a favorable report. From there the
bill was re-referred to the Committee on Rules and Operations of the Senate the very
same day. The next day, 28 November 2018, the Rules Committee met and gave the
bill a favorable report, and the bill was placed on the Senate Calendar for that same
day. The bill then passed its second reading and was placed on the Senate Calendar
for the next day, where it quickly passed the Senate on its third and final reading.
Only a handful of amendments were adopted, while others were offered but
immediately tabled. In total, the Senate considered S.B. 824 for a maximum of two
and a half days.
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¶ 60 On 29 November 2018, the same day the bill passed its final vote in the Senate,
the House received S.B. 824 and the measure was immediately referred to the
Committee on Elections and Ethics Law. The committee met on 3 and 4 December
2018, and after hearing public comment from only five North Carolinians, approved
the bill and referred it to the full House for a vote. A “handful” of amendments were
adopted in the House, and the amended bill was subsequently sent to the Senate for
concurrence. The Senate concurred with the House version of the bill on 6 December
2018. While the bill was in the Senate, both during the initial debate and when it
returned for concurrence, Democrats tried twice to table the bill. If approved, this
would have allowed additional time for input and discussion from voters and
lawmakers; however, these efforts were unsuccessful.
¶ 61 Furthermore, because the entire process was rushed, two senators, Senator
Robinson and former Senator McKissick, testified they were unable to research to
determine whether any ameliorative amendments could be crafted. Also, typically in
the House following an objection, the debate on the subject bill would continue into
the next day; however, in this case that did not occur. When, in accord with a
procedure typically available to legislators in the normal course of business,
Representative Harrison objected to the third reading so that additional amendments
could be considered, despite her belief that the objection was properly lodged, her
objection was denied. It is important to note that this rushed process prevented
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adequate consideration of concerns raised by legislators, namely, that S.B. 824 would
disproportionately burden African-American voters, the same way that H.B. 589 had
done.
¶ 62 For example, Senator Van Duyn cited an analysis showing that at least 5.9%
of registered North Carolina voters lacked identification acceptable under H.B. 589,
and that 9.6% of African-American registered voters lacked acceptable IDs, compared
with 4.5% of white registered voters. Accordingly, Senator Van Duyn not only
expressed concerns about the risk of disenfranchisement of several hundred thousand
of registered voters but also regarding the General Assembly’s hurried efforts to pass
S.B. 824. Thus, Senator Van Duyn noted she could not support the bill at that time.
Moreover, Senator Erica Smith, who represents a district mostly composed of African-
Americans, argued on the Senate floor that the bill was going to discriminate against
and disenfranchise the voters in her area and across the state. Yet, despite having
information indicating that S.B. 824 could bear more heavily on African American
voters just as H.B. 589 had done, legislators made no changes to the bill.
¶ 63 While the General Assembly knew S.B. 824 could bear more heavily on African
American voters, the trial court found that lawmakers did little if anything to address
these concerns when raised by other General Assembly members. Even though
members knew these concerns existed, the legislature did not request any additional
data regarding ID possession rates that could further inform legislators regarding
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the effect S.B. 824 would have on African-American voters and other voters of color.
But in 2013, before the passage of H.B. 589, data compiled by the State Board of
Elections, and made available to the General Assembly showed that 176,091
Democratic voters could not be matched with a North Carolina DMV-issued ID,
compared to 67,639 Republican voters. Of the Democratic voters who lacked a DMV-
issued ID, 67,553 were white and 91,927 were African American. Of the Republican
voters who lacked a DMV-issued ID, 2,549 were African-American and 60,592 were
white. Of the racial groups measured in 2013, the trial court found that African-
American voters constituted the largest proportion of voters without a DMV-issued
ID.¶ 64 Governor Roy Cooper vetoed S.B. 824 because he believed it “was designed to
suppress the rights of minority, poor, and elderly voters.” But the Senate overrode
the veto in a 32 to 12 vote. The House likewise overrode the veto with a 72 to 40 vote.
Of the legislators who voted for H.B. 589 on concurrence in 2013, sixty-two of them
voted to override the Governor’s veto of S.B. 824. The trial court found that this group
represented a “fairly significant overlap of members who were there for the 2013 and
2018 votes.” Taking all this information together, the trial court found that the
Republican supermajority pushed S.B. 824 “with limited analysis and scrutiny” in
order to enact a more restrictive voter ID bill before losing their supermajority status
the following January.
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¶ 65 Second, the trial court found that proposed amendments that would have
benefited African-American voters were rejected. Specifically, in the Senate, five such
amendments were tabled. These proposed amendments were designed to educate and
inform voters and expand opportunities for African-American community members
to go to the polls and vote. Although it is true that some of the amendments suggested
by Democrats were accepted, the trial court found that those amendments were
primarily “technical” in nature and “were not as consequential” as the tabled
amendments. Furthermore, amendments to S.B. 824 were considered on only one day
in the Senate, on 28 November 2018. This meant that Senate Democrats had no time
to conduct research regarding the implications of any proposed amendments to S.B.
824, to consider any ameliorative effects the amendments might have, or to request
demographic data about voter ID possession disaggregated by race. This rushed
timetable also made it difficult for Democratic Senate members to research what
types of ameliorative amendments to voter ID laws in other jurisdictions could help
increase African American voter participation in North Carolina under S.B. 824. For
example, former Senator McKissick testified that, had he known that on Election
Day, South Carolina’s voter ID law provides free photo IDs that do not have an
expiration date, he would have offered amendments adding these provisions to S.B.
824.
¶ 66 In the House, Democrats proposed a series of ameliorative amendments
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including the addition of public assistance IDs to the list of qualifying IDs and a
requirement that early voting sites be open on the last Saturday before the election.
The amendment to add public assistance IDs was rejected after Representative Lewis
asserted that there would be no way to impose North Carolina standards on the
federal government. Yet the federal government also controls federal military IDs,
and those IDs were among the acceptable forms of ID originally listed in S.B. 824.
Following the Fourth Circuit’s logic in McCrory, the trial court found the legislature’s
rejection of public assistance IDs “particularly telling.” During the H.B. 589 litigation,
the district court specifically found that the removal of public assistance IDs was
“‘suspect’ because a reasonable legislator [would be] aware of the socioeconomic
disparities endured by African Americans [and] could have surmised African
Americans would be more likely to possess this form of ID.” McCrory, 831 F.3d at
227–28. Although the General Assembly subsequently decided to add public
assistance IDs as a qualifying voter ID via H.B. 1169, this action does not change the
legislature’s intent in enacting S.B. 824. Furthermore, the Saturday early voting
amendment was ruled out of order, and thus it was not voted on at all. Because the
Fourth Circuit in McCrory had found, during the H.B. 589 litigation, that a reduction
in early voting days bore more heavily on African-American voters in North Carolina,
the trial court found the denial of this amendment to be suspicious as well. Id. at 231–
32.
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¶ 67 Third, the trial court found that S.B. 824 did not demonstrate an intent by the
General Assembly to cure the racial disparities observed under H.B. 589. Although
S.B 824 included additional forms of qualifying IDs not allowed in H.B. 589, because
the legislature did not request data on ID possession rates disaggregated by race,
lawmakers could not know what, if any, impact the addition of these IDs would have
on the racial disparities observed under H.B. 589. In the eyes of the trial court,
without evidence that these additional forms of ID would overcome the existing
deficiency, their addition was arbitrary. This was especially evident in the varying
issuance criteria and expiration requirements tied to each acceptable form of ID. For
example, S.B. 824 accepted federal worker IDs but not public assistance IDs. Also,
while military IDs, were accepted with no expiration date, free NC Voter IDs had a
one-year expiration date. Under S.B. 824, driver’s licenses were to be accepted for up
to a year after their expiration date, but revoked IDs had an entirely different
timeline; the trial court found this distinction inconsistent because there is no
difference in the verification quality of either ID. The court found that all these
examples demonstrated “the lack of reasoning or logic in the legislature’s designation
of acceptable form of IDs.”
¶ 68 At trial Professor Callanan testified in support of the legislative defendants
opining that S.B. 824’s list of acceptable IDs did not suggest an intent to favor forms
of IDs held disproportionately by white voters. At the same time, Professor Callanan
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offered no information concerning what the General Assembly believed or knew about
racial disparities when it made the decision to include some forms of ID and not
others. Professor Callanan also admitted he was unaware of any evidence suggesting
the General Assembly had looked at the experience of other states when determining
which forms of ID would be acceptable under S.B. 824. Taken together, this testimony
supported plaintiffs’ assertion that the General Assembly had not considered any
updated race-based data before enacting S.B. 824.
¶ 69 The trial court also expressed concerns regarding S.B. 824’s “reasonable
impediment” provision, finding that this provision did not show an intent by the
legislature to reduce the burden on voters without a qualifying ID. This conclusion
was based on testimony which showed that despite H.B. 589’s reasonable impediment
declaration, voters were at risk for disenfranchisement, and many were excluded
from political participation. Specifically, over fifteen percent of those who voted via a
reasonable impediment provisional ballot had their votes rejected. Importantly, the
trial court found the reasonable impediment provision does not protect all voters who
lack a qualifying ID. This shortcoming was evidenced during the March 2016 primary
in which 1,248 voters without acceptable photo IDs cast provisional ballots but did
not execute a reasonable impediment declaration or otherwise cure their provisional
ballots. Thus, these votes were not counted despite there being no finding of voter
fraud or ineligibility to vote.
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¶ 70 Fourth, the trial court found S.B. 824’s enactment was not a bipartisan effort
and that the limited Democratic involvement present in S.B. 824’s enactment did not
serve to normalize the legislative process. This finding was supported by testimony
from General Assembly members who noted the absence of the bipartisan discussion
which had often been present in passing other bills. For example, Senator Robinson
expressed that she did not consider the bill to be bipartisan because she was unable
to meaningfully engage in discussion with her Republican colleagues or understand
voters’ concerns. Another General Assembly member, Representative Harrison,
concluded that the bill was not a bipartisan effort because both parties did not work
together to craft the legislation for the betterment of North Carolina.
¶ 71 Nonetheless defendants argue that S.B. 824’s legislative history does not
support an inference of discriminatory intent because passing the bill was a
bipartisan effort. Defendants support this assertion by stating that “Senator Ford, an
African American Democrat, was a primary sponsor of S.B. 824.” But under cross-
examination Senator Ford admitted that at the time he co-sponsored the legislation,
he had not been caucusing with Democrats and instead was not only considering
switching political parties, but felt like a “man without a party” and a “person without
a political home.” Senator Ford also testified that he had agreed to support S.B. 824
because he thought it would require election officials to provide free photo IDs at all
early voting sites and at all polling places on Election Day. But as the trial court
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explained, “Neither is true, thus it appears plausible that Senator Ford himself may
not have supported S.B. 824” if he had known it did not contain those provisions.
¶ 72 State defendants also argue that the trial court’s findings regarding a lack of
bipartisan support ignored decisions from other courts in which less support from an
opposing party was sufficient to demonstrate a lack of discriminatory intent. See, e.g.,
Lee, 843 F.3d at 603 (“While there was a substantial party split on the vote enacting
the law, two non-Republicans (one Democrat and one Independent) voted for the
measure as well”). Yet as noted above, under Arlington Heights what matters are the
trial court’s findings of fact regarding what is typical for the North Carolina General
Assembly, not for any other state’s legislature. See Arlington Heights, 429 U.S. at
269–270. Here, the trial court found the testimony by Representative Harrison and
Senator Robinson to be significant. Moreover, the correct standard of review in this
case establishes that a “trial court’s findings of fact . . . are conclusive on appeal if
there is competent evidence to support them,” and this is true “even [if] the evidence
could be viewed as supporting a different finding.” In re Estate of Skinner, 370 N.C.
at 139 (quoting Bailey 348 N.C. at 146). In this case, the trial court’s findings of fact
are supported by competent evidence: the testimony of General Assembly members
who related that unlike the passage of other bills, S.B. 824’s passage was not a true
bipartisan effort.
¶ 73 State defendants also argue that S.B. 824’s amendment process does not
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support a finding of discriminatory intent. Specifically, they contend that out of the
twenty-four amendments offered, thirteen were adopted before enactment. Although
defendants argue that many of these amendments came from Democratic legislators
who opposed the law, the trial court noted that while some of these amendments were
adopted, they were technical in nature rather than substantive. This finding was also
supported by competent evidence, namely, the testimony of Senator Robinson.
¶ 74 Legislative defendants further argue that the legislative history cannot
support a finding of racially discriminatory intent because while passing S.B. 824,
the legislature did not consider racial data like it had done when passing H.B. 589.
But as found by the trial court the issue was not that race-based data were not
considered. Instead, the issue was that because the General Assembly was on notice
that a similar voter ID law, H.B. 589, had a disparate impact on African- American
voters, the General Assembly’s failure to request any data on how S.B. 824 might
impact African-American voters was indicative of intent.
¶ 75 Based on the trial court’s supported findings of fact and its analysis under
Arlington Heights, we hold that S.B. 824’s legislative history supports that S.B. 824
was passed with the discriminatory intent to target African American voters.
IV. Non-racial Motivations for Enactment of S.B. 824
¶ 76 “Once racial discrimination is shown to have been a ‘substantial’ or ‘motivating’
factor behind enactment of the law, the burden shifts to the law’s defenders to
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demonstrate that the law would have been enacted without this factor.” Hunter v.
Underwood, 471 U.S. 222, 228 (1985). If discriminatory purpose is established, any
deference previously accorded to the North Carolina General Assembly is no longer
justified. See Arlington Heights, 429 U.S. at 265–66. To determine whether a law
would have been enacted without a racially discriminatory motive, this Court must
consider the “substantiality of the state’s proffered non-racial interest and how well
the law furthers that interest.” McCrory, 831 F.3d at 233–34 (citing Hunter, 471 U.S.
at 228–33).
¶ 77 The trial court scrutinized the legislature’s purported motivations for enacting
S.B. 824 and concluded two things: (1) that the constitutional mandate imposed via
the amendment could not justify the General Assembly’s actions in passing S.B. 824,
and (2) even if the General Assembly had an interest in preventing voter fraud, it
would not have passed S.B. 824 “if it had no disproportionate impact on African
American voters.” (quoting McCrory, 831 F.3d at 235). The court reasoned that,
although the amendment to the North Carolina Constitution required the General
Assembly to pass a voter ID law, nothing in the amendment’s text required passing
a law that was disproportionately burdensome on African-American voters. The
constitutional amendment also allowed for exceptions to the law, and even though
the General Assembly had reason to know that African-American voters would be
disproportionately affected by S.B. 824, it still chose to pass a law that required the
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specific IDs African-American voters disproportionately lack.
¶ 78 Regarding the State’s interest in preventing voter fraud, or promoting voter
confidence in elections, the trial court followed the Fourth Circuit’s precedent in
McCrory which teaches that these non-racial motivations are not necessarily
sufficient to justify passage of a voter ID law and that preventing voter fraud may
not be a neutral justification for a voter ID law. McCrory, 831 F.3d at 235. At this
stage, because it had been established that race played at least some role in the
passage of S.B. 824, the proper judicial inquiry required ascertaining whether the
law would have been passed if it did not have a disproportionate impact on African
American voters. Id. In answering this question, the trial court found that in North
Carolina, voter fraud is rare, with only two documented cases of in-person voter fraud
between 2000 and 2012. From 2015 to 2019, the State Board of Elections only referred
five cases of alleged voter impersonation fraud to prosecutors. In April 2017, the State
Board of Elections released an audit of the prior year’s general election which showed
that “questionable ballots” were only 0.01% of the 4,469,640 total votes cast. Of the
508 cases of fraudulent voting identified, only one involved the type of in-person
deception that might be prevented by a voter photo ID law. Thus, the trial court noted,
there was little evidence that a voter ID law would prevent voter impersonation even
if such fraudulent behavior was common. Taking this information together, the trial
court concluded that “voter fraud in North Carolina is almost nonexistent.”
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¶ 79 Also, indicative of the General Assembly’s intent was the fact that prior to the
enactment of S.B. 824, the General Assembly did not request data on rates of voter
fraud in North Carolina nor did it ask the State Board of Elections to analyze the
potential effect S.B. 824 might have on voter fraud. Considering this situation as a
whole, the trial court explained that lawmakers could have passed a less restrictive
law that could have sufficiently addressed the small amount of potential voter fraud,
without bearing as heavily on African American voters. In light of this information,
the court ultimately concluded that defendants failed to show that S.B. 824 would
have been passed if it had not produced a disproportionate impact on African-
American voters. McCrory, 831 F.3d at 235.
¶ 80 Based on the evidence presented to the trial court and the court’s careful
analysis under the Arlington Heights factors, we hold that S.B. 824 was enacted with
the discriminatory intent to target African-American voters who were unlikely to vote
for Republican candidates. In doing so, we do not conclude that the General Assembly
harbored racial animus; however, we conclude just as the trial court did, that in
passing S.B. 824, the Republican majority “targeted voters who, based on race, were
unlikely to vote for the majority party.” Id. at 233. It is important to note that
although our holding parallels the Fourth Circuit’s holding in McCrory, our
conclusion is not based on that holding or on our finding that H.B. 589 was also
enacted with discriminatory intent. Instead, our holding is based on the specific
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findings of fact made by the trial court which included the disparate impact of S.B.
824, the historical background of S.B. 824, the sequence of events leading up to S.B.
824’s passage, and S.B. 824’s legislative history.
¶ 81 Because we have concluded that discriminatory intent was a motivation in
passing S.B. 824, judicial deference to the legislature is no longer warranted.
Arlington Heights, 429 U.S. at 265–66. Based on the factual findings made by the
trial court, we agree that S.B. 824 would not have been passed absent discriminatory
intent. We also agree that this conclusion is supported by the almost nonexistent
nature of voter fraud in North Carolina, as well as the fact that the General Assembly
considered no data on the effect S.B. 824 would have on the General Assembly’s
purported goals.
¶ 82 Based on this information, we also find support for the trial court’s finding
that given the rarity of voter fraud in North Carolina, a less restrictive law could have
been sufficient to deter voter fraud and promote voter confidence in elections had this
goal been the law’s only actual purpose. In addition to the trial court’s findings, other
states’ laws are indicative of the General Assembly’s ability to pass a less restrictive
voter ID law that may not violate North Carolina’s equal protection clause. States
such as Louisiana and Mississippi have enacted less restrictive voter ID laws, which
allow individuals to vote without identification as long as they sign an affidavit
confirming their eligibility to vote. La. Stat. Ann. § 18:562 (2021) (Louisiana’s
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“Prerequisites to voting” law); Miss. Code. Ann. § 23-15-573 (West 2021)
(Mississippi’s “Voting by affidavit” law).
¶ 83 Furthermore, many of defendants’ arguments in this case ask this Court to
rewrite the trial court’s findings of fact. But when the trial court conducts a trial
without a jury, “the trial court’s findings of fact have the force and effect of a jury
verdict and are conclusive on appeal if there is competent evidence to support them,
even [if] the evidence could be viewed as supporting a different finding.” In re Estate
of Skinner, 370 N.C. at 139 (2017) (quoting Bailey, 348 N.C. at 146). Also, as noted
above, defendants attempted to analogize the facts of their case to those in other cases
in which voter ID laws were upheld. Although this is not the appropriate analysis
under Arlington Heights, we do find it important that those specific voter ID laws
were not passed in same manner as S.B. 824. See e.g. Lee 843 F.3d. at 603 (stating
that “the legislative process here was normal, with full debate, and no evidence was
presented of untoward external pressures or influences affecting the debate”); South
Carolina v. United States, 898 F. Supp 2d at 44 (observing that “South Carolina
legislators did not just plow ahead [with the bill] in the face of the data showing a
racial gap.”)
¶ 84 Accordingly, we affirm the trial court’s final judgment and order and hold that
S.B. 824 violates article I, section 19 of the North Carolina Constitution because the
law was enacted with discriminatory intent to disproportionately disenfranchise and
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burden African-American voters in North Carolina.
AFFIRMED.
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Berger, J., dissenting
Justice BERGER dissenting.
¶ 85 In November 2018, the people of North Carolina overwhelmingly amended
their constitution to include a voter-ID requirement based upon a simple belief —
that would-be voters should be required to identify themselves prior to casting a
ballot. Enabling legislation in the form of S.B. 824 was passed to effectuate the
requirements of that constitutional amendment. S.B. 824 contained various photo
identification requirements, a provision to provide every voter with a free photo
identification, and a host of exceptions which allow individuals to vote without an
identification.
¶ 86 The Fourth Circuit addressed many of the issues presented in the present
appeal when it reviewed S.B. 824 and concluded that the legislation was not passed
with discriminatory intent. N.C. State Conf. of the NAACP v. Raymond, 981 F.3d
295, 305 (4th Cir. 2020). In applying the same Arlington Heights factors the majority
utilizes today, the court in Raymond determined that when the “proper burden and
the presumption of good faith are applied, the [complainants] fail to meet their
burden of showing that the General Assembly acted with discriminatory intent in
passing the 2018 Voter-ID Law.” Id.¶ 87 The majority here, however, refuses to follow Raymond. Although the majority
cites to this case briefly in its 58-page opinion, the majority has determined that it
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will not follow Raymond because “there is no evidence the voters intended the law to
be passed in its current form.” Supra ¶ 39. The majority apparently overlooks the
fact that the will of the people is carried out by the legislature. See N.C. State Conf.
of the NAACP v. Moore, 382 N.C. 129, 2022-NCSC-99, ¶ 26 (“[i]n the system of
government our constitution prescribes, the legislature represents the
untrammeled will of the people” (cleaned up)).
¶ 88 The majority and the trial court make the same legal mistakes for which the
federal district court’s ruling was rebuked by the Fourth Circuit in Raymond: they
misapply Abbott v. Perez, 138 S. Ct. 2305 (2018), fail to credit the legislature with the
presumption of good faith, and place no burden on plaintiffs. The legislature was
required to pass enabling legislation by virtue of the constitutional amendment
authorized by the people. This important procedural event, which is discussed at
length in Raymond, is all but dismissed by the majority in its analysis. Moreover,
the majority affords no presumption of good faith, even though S.B. 824 is far less
restrictive than what could have been passed under the plain language of the
constitutional amendment.
¶ 89 The plain language of S.B. 824 shows no intent to discriminate against any
group or individual, and there is no evidence that S.B. 824 was passed with race in
mind, let alone a racially discriminatory intent. The majority relies, as it must, on a
misapplication of relevant case law and on its own inferences to reach a contrary
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result. As in Raymond, the lower court’s final judgment and order should be reversed,
and I respectfully dissent because “fundamental legal errors . . . permeate [the
majority] opinion.” Raymond, 981 F.3d at 310–11.
I. Factual and Procedural Background
¶ 90 “All political power is vested in and derived from the people; all government of
right originates from the people, is founded upon their will only, and is instituted
solely for the good of the whole.” N.C. Const. art. I, § 2. The people of this state
exercised that inherent political power in November 2018 when they voted to amend
our Constitution to include a voter ID requirement.1 That amendment states in part:
“[v]oters offering to vote in person shall present photographic identification before
voting.” N.C. Const. art. VI, § 2(4). It also states the “General Assembly shall enact
general laws governing the requirements of such photographic identification, which
may include exceptions.” Id.
¶ 91 To comply with the requirements of article VI, section 2(4) of the North
Carolina Constitution, the General Assembly passed North Carolina Session Law
2018-144, An Act to Implement the Constitutional Amendment Requiring
Photographic Identification to Vote (S.B. 824). S.B. 824 requires registered voters to
present either a valid, unexpired: (1) North Carolina driver’s license; (2) North
1 See generally N.C. State Conf. of the NAACP v. Moore, 382 N.C. 129, 2022-NCSC-99
(Berger, J., dissenting).
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Carolina nonoperator’s ID; (3) United States passport; (4) North Carolina voter photo
ID card; (5) tribal enrollment card issued by a State or federal recognized tribe; (6)
student ID card issued by any statutorily-defined eligible institution; (7) employee ID
card issued by a state or local government entity; or (8) out-of-state driver’s license or
nonoperator’s ID if the voter’s registration was within ninety days of the election. Or,
regardless of expiry, voters may present a: (1) military ID issued by the United States
government; (2) a veterans ID card issued by the United States Department of
Veterans Affairs; or (3) any of the aforementioned IDs of a voter older than sixty-five,
so long as the ID was unexpired at the time of the voter’s sixty-fifth birthday. S.B.
824 § 1.2(a).
¶ 92 The new law further requires the State to provide a free voter ID if requested
by a registered voter. S.B. 824 § 1.1(a). Voters need not submit any official
documentation to receive these free IDs. Id. Instead, individuals seeking a free ID
only need to provide their “name,” “date of birth, and the last four digits of [their]
social security number.” Id.
¶ 93 In fact, despite the common misunderstanding of what the voter ID law entails,
and despite the majority’s mischaracterization of the law, S.B. 824 specifically states
that “[a]ll registered voters will be allowed to vote with our without a photo ID card.”
S.B. 824 § 1.5(a). This is so because the law contains multiple exceptions to the photo
ID requirements, including a religious objection exception and a reasonable
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impediment exception. S.B. 824 § 1.2(a). The reasonable impediment exception
allows voters to cast a provisional ballot without a photo ID, so long as they complete
an affidavit at the voting location. S.B. 824 § 1.2(a).
¶ 94 After the enactment of S.B. 824, plaintiffs filed a suit facially challenging the
law in Wake County Superior Court. Plaintiffs alleged, among other arguments, that
S.B. 824 violates the equal protection clause of the North Carolina Constitution. See
N.C. Const. art. I, § 19. Plaintiffs moved for a preliminary injunction, seeking to
prevent the implementation of S.B. 824 until their claims were determined on the
merits. Defendants answered and moved to dismiss, and the case was transferred to
a three-judge panel on March 14, 2019. In July 2019 the panel dismissed all of
plaintiffs’ claims except the equal protection claim. A majority of the panel also
denied plaintiffs’ motion for a preliminary injunction, with one judge dissenting.
¶ 95 Plaintiffs appealed the denial of the preliminary injunction, and the Court of
Appeals reversed the three-judge panel’s decision on February 18, 2020. Holmes v.
Moore, 270 N.C. App. 7, 36, 840 S.E.2d 244, 266–67 (2020). Accordingly, the trial
court issued the preliminary injunction on August 10, 2020, and then held a trial on
the merits of plaintiffs’ equal protection claim. In September 2021, a majority of the
three-judge panel ruled in plaintiffs’ favor and held that S.B. 824 violated the equal
protection clause of our constitution because it was enacted with discriminatory
intent. The panel then permanently enjoined enforcement of the law. One judge on
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the panel dissented, and defendants timely appealed to the Court of Appeals.
However, before the matter could be considered by the Court of Appeals, plaintiffs
petitioned this Court for expedited review prior to a determination by the Court of
Appeals.2
¶ 96 On appeal, defendants argue that the panel erred in finding that S.B. 824 was
enacted with discriminatory intent and erred in concluding that S.B. 824 violated the
equal protection clause.
II. Analysis
A. Introduction
¶ 97 It is well-settled that the proper exercise of our judicial power requires great
deference to acts of the General Assembly, as the legislature’s enactment of statutes
is the sacrosanct fulfillment of the people’s will. “[P]ower remains with the people
and is exercised through the General Assembly, which functions as the arm of the
electorate. An act of the people’s elected representatives is thus an act of the people
2 This Court granted expedited review even though the constitutional claim in North
Carolina State Conference of the NAACP v. Moore, 382 N.C. 129, 2022-NCSC-99, had not
been resolved and remand is still pending in the trial court. One might contend that this
grant of expedited review was a concrete example of this Court, as Justice Earls stated in a
recent interview, “wielding power based on our own political views.” ‘Ramifications are
substantial.’ How Republicans gained a lasting grip on the NC Supreme Court, WRAL (Nov.
13, 2022), https://www.wral.com/ramifications-are-substantial-how-republicans-gained-a-
lasting-grip-on-the-nc-supreme-court/20570554/. Indeed, many North Carolinians would
agree with Justice Earls that this is “a whole different notion of justice” and that the outcome
of this case was wholly “depend[ent] on what year [a party] brings [its] case” or when the
majority decided to hear this matter.
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and is presumed valid unless it conflicts with the Constitution.” Pope v. Easley, 354
N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (per curiam) (citing McIntyre v. Clarkson,
254 N.C. 510, 515, 119 S.E.2d 888, 891–92 (1961)). Thus,
we presume that laws enacted by the General Assembly
are constitutional, and we will not declare a law invalid
unless we determine that it is unconstitutional beyond a
reasonable doubt. It is the burden of the proponent of a
finding of facial unconstitutionality to prove beyond a
reasonable doubt that an act of the General Assembly is
unconstitutional in every sense.
State v. Strudwick, 379 N.C. 94, 2021-NCSC-127, ¶ 12 (cleaned up).3
¶ 98 Although “the trial court’s findings of fact ‘are conclusive on appeal if supported
by competent evidence, even if the evidence is conflicting,’ ” State v. Parisi, 372 N.C.
639, 649, 831 S.E.2d 236, 243 (2019) (quoting State v. Eason, 336 N.C. 730, 745, 445
S.E.2d 917, 926 (1994)), this Court must review de novo the trial court’s conclusion
that S.B. 824 violates our equal protection clause. See State v. Romano, 369 N.C. 678,
685, 800 S.E.2d 644, 649 (2017) (“Whether a statute is constitutional is a question of
law that this Court reviews de novo.”).
3 It is difficult to imagine how enabling legislation which is less restrictive than what
is called for in the constitution could conflict with that same constitution. Compare N.C.
Const. art. VI, § 2(4) (“Voters offering to vote in person shall present photographic
identification before voting.”), with S.B. 824 § 1.5(a) (“All registered voters will be allowed to
vote with our without a photo ID card.”). Although there have been no challenges to the
constitutionality of S.B. 824 on the grounds that it conflicts with article VI, section 2(4), one
could argue that the exceptions to the photo identification requirement potentially render the
constitutional provision a nullity.
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B. Equal Protection and McCrory
¶ 99 “No person shall be denied the equal protection of the laws; nor shall any
person be subjected to discrimination by the State because of race, color, religion, or
national origin.” N.C. Const. art. I, § 19. “This Court’s analysis of the State
Constitution’s Equal Protection Clause generally follows the analysis of the Supreme
Court of the United States in interpreting the corresponding federal clause.”
Blankenship v. Bartlett, 363 N.C. 518, 522, 681 S.E.2d 759, 762 (2009). “However, in
the construction of the provision of the State Constitution, the meaning given by the
Supreme Court of the United States to even an identical term in the Constitution of
the United States is, though highly persuasive, not binding upon this Court.” Bulova
Watch Co. v. Brand Distribs. of N. Wilkesboro, Inc., 285 N.C. 467, 474, 206 S.E.2d
141, 146 (1974). Accordingly, it is this Court’s duty here to review whether plaintiffs
have proven beyond a reasonable doubt that S.B. 824 violates our Constitution, and
in so doing, it is appropriate for this Court to consider federal precedent.
¶ 100 “Proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 563 (1977). “Whenever a challenger
claims that a state law was enacted with discriminatory intent, the burden of proof
lies with the challenger, not the State.” Abbott, 138 S. Ct. at 2324 (citing Reno v.
Bossier Parish Sch. Bd., 520 U.S. 471, 481, 117 S. Ct. 1491, 1499 (1997)). To meet
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this burden under the federal analytical framework, plaintiffs “must prove by a
preponderance of the evidence that racial discrimination was a substantial or
motivating factor” in the enactment of the challenged legislation. Hunter v.
Underwood, 471 U.S. 222, 225, 105 S. Ct. 1916, 1918 (1985) (quoting Underwood v.
Hunter, 730 F.2d 614, 617 (11th Cir. 1984)).
¶ 101 In Arlington Heights, the Supreme Court of the United States established a
non-exhaustive list of evidentiary sources plaintiffs may use to establish
discriminatory intent. Whether the legislation “ ‘bears more heavily on one race than
another’ may provide an important starting point,” Arlington Heights, 429 U.S. at
266, 97 S. Ct. at 564 (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040,
2049 (1976)), however, “official action will not be held unconstitutional solely because
it results in a racially disproportionate impact,” id. at 264–65, 97 S. Ct. at 563. In
addition to any possible disparate impact, courts should also consider “[t]he historical
background of the decision,” the “specific sequence of events leading up the challenged
decision,” and the challenged action’s “legislative or administrative history.” Id. at
267–68, 97 S. Ct. at 564–65.
¶ 102 The Fourth Circuit applied these factors to an act of our General Assembly in
North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204 (4th Cir.
2016). As the panel below relied heavily, if not entirely, on McCrory, and as the
majority today affirms this improper analytical reliance, it is necessary to review the
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specifics of that case.
¶ 103 In McCrory, the plaintiffs challenged various voting provisions contained in a
2013 omnibus bill enacted by North Carolina’s General Assembly, including a voter
ID provision, alleging that the law had been enacted with discriminatory intent. The
2013 omnibus law was enacted shortly after the Supreme Court of the United States
“invalidated the preclearance coverage formula,” a federal statutory mechanism that
required North Carolina, and other states with histories of racially motivated voter
suppression laws, to seek preclearance with the United States Department of Justice
before enacting new voting laws. McCrory, 831 F.3d at 216 (citing Shelby County v.
Holder, 570 U.S. 529, 557, 133 S. Ct. 2612, 2631 (2013)). At the conclusion of trial,
the district court found that the 2013 omnibus law was not enacted with
discriminatory intent and entered judgment against the plaintiffs on all of their
claims. Id. at 219.
¶ 104 On appeal, the Fourth Circuit noted that the “ultimate question” was whether
“the legislature enact[ed] a law ‘because of,’ and not ‘in spite of,’ its discriminatory
effect.” Id. at 220. In concluding that the 2013 omnibus law was enacted because of
its discriminatory effect, i.e., with discriminatory intent, the Fourth Circuit
determined that the “undisputed” facts regarding the “sequence of events leading up
to the challenged decision” were “devastating.” Id. at 227 (quoting Arlington Heights,
429 U.S. at 267, 97 S. Ct. 555). The court noted that:
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[T]he district court found, prior to enactment of SL 2013-
381, the legislature requested and received racial data as
to usage of the practices changed by the proposed law.
This data showed that African Americans
disproportionately lacked the most common kind of photo
ID, those issued by the Department of Motor Vehicles
(DMV). The pre-Shelby County version of SL 2013-381
provided that all government-issued IDs, even many that
had been expired, would satisfy the requirement as an
alternative to DMV-issued photo IDs. After Shelby County,
with race data in hand, the legislature amended the bill to
exclude many of the alternative photo IDs used by African
Americans.
The district court found that, prior to enactment of
SL 2013-381, legislators also requested data as to the racial
breakdown of early voting usage. . . .
The racial data provided to the legislators revealed
that African Americans disproportionately used early
voting in both 2008 and 2012. In particular, African
Americans disproportionately used the first seven days of
early voting. After receipt of this racial data, the General
Assembly amended the bill to eliminate the first week of
early voting, shortening the total early voting period from
seventeen to ten days. As a result, SL 2013-381 also
eliminated one of two “souls-to-the-polls” Sundays in which
African American churches provided transportation to
voters.
The district court found that legislators similarly
requested data as to the racial makeup of same-day
registrants. . . .
The legislature’s racial data demonstrated that, as
the district court found, it is indisputable that African
American voters disproportionately used same-day
registration when it was available. . . . [I]n-person
assistance likely would disproportionately benefit African
Americans. SL 2013-381 eliminated same-day registration.
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Legislators additionally requested a racial
breakdown of provisional voting, including out-of-precinct
voting. . . .
The district court found that the racial data revealed
that African Americans disproportionately voted
provisionally. . . . With SL 2013-381, the General Assembly
altogether eliminated out-of-precinct voting.
African Americans also disproportionately used
preregistration. . . . SL 2013-381 eliminated it.
Id. at 216–18 (cleaned up).
¶ 105 “In sum, relying on this racial data, the General Assembly enacted legislation
restricting all—and only—practices disproportionately used by African Americans.”
Id. at 230. The Fourth Circuit determined that “[t]he district court erred in refusing
to draw the obvious inference that this sequence of events signals discriminatory
intent.” Id. at 227. Accordingly, the Fourth Circuit concluded that, “at least in part,
discriminatory racial intent motivated the enactment of” the 2013 omnibus law. Id.
at 233. Because the plaintiffs carried their burden of establishing discriminatory
intent, and because the State had failed to show that the challenged provisions would
have been enacted without discriminatory intent, the court reversed the district
court’s judgment and remanded the case “for entry of an order enjoining the
implementation” of the challenged voting provisions of the 2013 omnibus law. Id. at
242.
C. The Presumption of Good Faith
¶ 106 Two years after the Fourth Circuit’s decision in McCrory, the Supreme Court
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of the United States provided clarification to the discriminatory intent analysis that
is especially relevant here. In Abbott, 138 S. Ct. 2305, the Court emphasized that
“the ‘good faith of [the] legislature must be presumed’ ” regardless of a prior finding
of discriminatory intent. 138 S. Ct. at 2324 (alteration in original) (quoting Miller v.
Johnson, 515 U.S. 900, 915, 115 S. Ct. 2475, 2488 (1995)).
¶ 107 In addition to carrying the burden of proving that a legislature acted with
discriminatory intent, plaintiffs challenging state legislation as violative of the equal
protection clause must also overcome “the presumption of legislative good faith.” Id.“[T]his judicial deference is no longer justified” only if such plaintiffs “pro[ve] that a
discriminatory purpose has been a motivating factor” in the legislation’s enactment.
Arlington Heights, 429 U.S. at 265–66, 97 S. Ct. at 563. If, and only if, plaintiffs
overcome this presumption and prove by a preponderance of the evidence that
discriminatory intent was a motivating factor will “the burden shift[ ] to the law’s
defenders to demonstrate that the law would have been enacted without this factor.”
Hunter, 471 U.S. at 228, 105 S. Ct. at 1920.
¶ 108 In Abbott, the Court reversed the decision of a three-judge panel of the Western
District of Texas because that panel imputed past discriminatory intent to the then-
sitting legislature and thereby failed to presume good faith.
The allocation of the burden of proof and the
presumption of legislative good faith are not changed by a
finding of past discrimination. Past discrimination cannot,
in the manner of original sin, condemn governmental
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action that is not itself unlawful. The ultimate question
remains whether a discriminatory intent has been proved
in a given case. The historical background of a legislative
enactment is one evidentiary source relevant to the
question of intent. But we have never suggested that past
discrimination flips the evidentiary burden on its head.
Abbott, 138 S. Ct. at 2324–25 (cleaned up).
¶ 109 The Court noted that the three-judge panel “referred repeatedly to the 2013
Legislature’s duty to expiate its predecessor’s bad intent” and concluded that the
“Texas court’s references to the need to ‘cure’ the earlier Legislature’s ‘taint’ cannot
be dismissed as stray comments.” Id. at 2325. Although the Court stated that “a
district court’s finding of fact on the question of discriminatory intent is reviewed for
clear error,” it nonetheless reversed the panel because “when a finding of fact is based
on the application of an incorrect burden of proof, the finding cannot stand.” Id. at
2326.
D. Federal Application of the Presumption to S.B. 824
¶ 110 As is especially relevant here, though almost completely ignored by the
majority, Abbott’s guidance on the presumption of good faith and a challenger’s
burden has already been applied to S.B. 824, the very law challenged in this case. In
Raymond, 981 F.3d 295, the Fourth Circuit reviewed a decision of the United States
District Court for the Middle District of North Carolina granting the plaintiffs’ motion
for a preliminary injunction enjoining enforcement of S.B. 824. The plaintiffs
challenged S.B. 824 under the federal Equal Protection Clause, alleging that the law
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had been enacted with discriminatory intent. Id. at 301. The plaintiffs moved for a
preliminary injunction of the law, and the district court granted the injunction after
concluding that the plaintiffs “were likely to succeed on their constitutional claims.”
Id.
¶ 111 The Fourth Circuit sharply rebuked the district court and reversed “because of
the fundamental legal errors that permeate the [district court’s] opinion.” Id. at 310–
11. Principal among these fundamental errors was that the district court “considered
the General Assembly’s discriminatory intent in passing the 2013 Omnibus Law to
be effectively dispositive of its intent in passing the 2018 Voter-ID Law.” Id. at 303.
The court stated:
The district court here made the same mistake as
the panel in Abbott without even trying to distinguish the
Supreme Court’s holding. . . . [T]he district court noted that
the General Assembly did not “try[ ] to cleanse the
discriminatory taint,” or “tak[e] steps to purge the taint of
discriminatory intent.” . . .
The district court penalized the General Assembly
because of who they were, instead of what they did. When
discussing the sequence of events leading up to the 2018
Voter-ID Law’s enactment, the district court discounted
the normalcy of the legislative process to focus on who
drafted and passed the law.
Id. at 304 (first quoting N.C. State Conf. of the NAACP v. Cooper, 430 F. Supp. 3d 15,
43 (M.D.N.C. 2019), then quoting id. at 35).
¶ 112 The Fourth Circuit explicitly disavowed the district court’s inappropriate focus
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on who passed S.B. 824:
The question of who reared its head again in the
court’s discussion of the 2018 Voter-ID Law’s legislative
history. In that section, the district court emphasized that
the General Assembly’s positions had “remained virtually
unchanged” between McCrory and the enactment of the
2018 Voter-ID law. And the court assumed that the racial
data remained in the minds of the legislators: “[T]hey need
not have had racial data in hand to still have it in mind.”
By focusing on who passed the 2018 Voter-ID Law and
requiring the General Assembly to purge the taint of the
prior law, the district court flipped the burden and
disregarded Abbott’s presumption.
Id. at 304–05 (alteration in original) (quoting Cooper, 430 F. Supp. 3d at 33–35).
¶ 113 The district court’s analytical reliance on who passed S.B. 824 “also overlooked
the state constitutional amendment” that “required the enactment of a voter-ID law
and designated to the General Assembly the task of enacting the law.” Id. at 305
(citing N.C. Const. art. VI, § 2(4)). Because the amendment “served as an
independent intervening event between the General Assembly’s passage of the 2013
Omnibus Law and its enactment of the 2018 Voter-ID Law,” article VI, section 2(4)
of our Constitution “undercut[ ] the district court’s tenuous ‘who’ argument.” Id.
¶ 114 The Fourth Circuit determined that “[o]nce the proper burden and the
presumption of good faith are applied, the Challengers fail to meet their burden of
showing that the General Assembly acted with discriminatory intent in passing the
2018 Voter-ID Law.” Id. In reaching this conclusion, the court clarified that although
“North Carolina’s historical background,” including the 2013 omnibus law, “favors
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finding discriminatory intent, the facts considered under the remaining Arlington
Heights factors—the sequence of events leading to enactment, legislative history, and
disparate impact—cannot support finding discriminatory intent.” Id. (cleaned up).
¶ 115 First, the court analyzed “the sequence of events leading to the enactment of
the 2018 Voter-ID Law.” Id. Noting that S.B. 824 “underwent five days of legislative
debate,” “was permitted time for public comment,” and “enjoyed bipartisan support,”
the court determined that “the enactment was not the ‘abrupt’ or ‘hurried’ process
that characterized the passage of the 2013 Omnibus Law.” Id. at 305–06 (citing
McCrory, 831 F.3d at 228–29).
¶ 116 Next, the court analyzed “the 2018 Voter-ID Law’s legislative history,” which
the district court found “supported finding discriminatory intent” because
“Republican legislative leaders strongly opposed McCrory, remained committed to
passing a voter-ID law that would withstand future court challenges, and did not
change their positions, goals, or motivations between the passage of the 2013
Omnibus Law and the 2018 Voter-ID Law.” Id. at 307. The Fourth Circuit
repudiated the district court’s reasoning because its findings “impermissibly
stemmed from the comments of a few individual legislators and relied too heavily on
comments made by the bill’s opponents.” Id. (cleaned up). The court also stated that
the district court’s reasoning “go[es] against inferring ‘good faith’ on the part of the
legislature, which we are required to do: decrying a court opinion holding that you
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acted improperly in the past is not evidence that you have acted improperly again.”
Id. Noting that “[n]othing here suggests that the General Assembly used racial
voting data to disproportionately target minority voters ‘with surgical precision,’ ” the
court concluded that S.B. 824’s legislative history did not suggest discriminatory
intent. Id. at 308–09.
¶ 117 Finally, the Fourth Circuit analyzed “the racial impact of the 2018 Voter-ID
Law.” Id. at 309. While the court “accept[ed] the district court’s finding that minority
voters disproportionately lack the types of ID required” by S.B. 824, it found
significant that the law “contains three provisions that go ‘out of [their] way to make
its impact as burden-free as possible.’ ” Id. (second alteration in original) (quoting
Lee v. Va. State Bd. of Elections, 843 F.3d 592, 603 (4th Cir. 2016)).
First, the law provides for registered voters to receive free
voter-ID cards without the need for corroborating
documentation. Second, registered voters who arrive to the
polls without a qualifying ID may fill out a provisional
ballot and their votes will be counted if they later produce
a qualifying ID at the county elections board. Third, people
with religious objections, survivors of recent natural
disasters, and those with reasonable impediments may
cast a provisional ballot after completing an affidavit that
affirms their identity and their reason for not producing an
ID. Their votes must be counted unless the county board of
elections has grounds to believe the affidavit is false.
Id. (cleaned up).
¶ 118 The Fourth Circuit noted that, because of these various mitigating provisions,
“the 2018 Voter-ID law is more protective of the right to vote than other states’ voter-
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ID laws that courts have approved.” Id. at 310.
In Lee v. Virginia State Board of Elections, we upheld
Virginia’s voter-ID law that only included two of these
mitigating features—free voter IDs available without
corroborating documentation and provisional voting
subjected to ‘cure.’ Likewise, in South Carolina v. United
States, the District Court of the District of Columbia
precleared South Carolina’s voter-ID law that included a
different combination of two mitigating features—free
voter IDs available without corroborating documentation
and a reasonable impediment procedure. And recently, the
Eleventh Circuit, in Greater Birmingham Ministries v.
Secretary of State for the State of Alabama, upheld
Alabama’s Voter-ID law that included . . . mitigating
features—free voter IDs that require corroborating
documentation and provisional voting subject to ‘cure.’
Given these cases, it is hard to say that the 2018 Voter-ID
Law does not sufficiently go out of its way to make its
impact as burden-free as possible.
Id. (cleaned up).
¶ 119 Because of these mitigating provisions, the court determined that any
disparate impact of S.B. 824 did not evidence any discriminatory intent by the
General Assembly. The Fourth Circuit reversed the district court, but not because
“[the district court] weighed the evidence before it differently than [the Fourth
Circuit] would.” Id. Rather, the court reversed the district court’s grant of a
preliminary injunction “because of the fundamental legal errors that permeate the
opinion—the flipping of the burden of proof and the failure to provide the
presumption of legislative good faith—that irrevocably affected its outcome.” Id. at
310–11. The district court “abused its discretion” because “it considered the North
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Carolina General Assembly’s past conduct to bear so heavily on its later acts that it
was virtually impossible for it to pass a voter-ID law that meets constitutional
muster.” Id. at 311.
E. The Decision Below and the Majority Opinion
¶ 120 With the relevant history and legal framework established, the errors in the
panel’s decision below become evident. A majority of the three-judge panel found “the
evidence at trial sufficient to show” that the enactment of S.B. 824 was motivated at
least in part by discriminatory intent. The panel also found that the State “failed to
prove . . . that S.B. 824 would have been enacted in its present form if it did not tend
to discriminate against African American voters.” Based on these findings, the panel
held that S.B. 824 “was in enacted in violation of the North Carolina Constitution”
and permanently enjoined its enforcement.
¶ 121 Defendants argue, in part, that the panel below erred because (1) S.B. 824 does
not disparately impact African-American voters; (2) the sequence of events around
the passage of S.B. 824 does not show discriminatory purpose; and (3) S.B. 824’s
legislative history does not support a finding of discriminatory intent.
¶ 122 The panel’s decision should be reversed because of the “fundamental legal
errors” that both “permeate the [trial court’s] opinion” and render its determination
constitutionally unsound. Raymond, 981 F.3d at 310–11. Rather than recognizing
the legal errors committed by the lower court, the majority side-steps these issues in
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order to affirm the trial court’s factual findings, which are themselves unsupported
by competent evidence. In doing so, they fail to abide by the directly on-point
guidance of the Supreme Court of the United States that “when a finding of fact is
based on the application of an incorrect burden of proof, the finding cannot stand.”
Abbott, 138 S. Ct. at 2326.
¶ 123 The panel below stated in its conclusions of law that: (1) “The Historical
Background of Senate Bill 824 Strongly Supports an Inference of Discriminatory
Intent”; (2) “The Sequence of Events Leading Up to the Enactment of S.B. 824 Gives
Rise to a Strong Inference of Impermissible Intent”; (3) “The Legislative History
Supports the Conclusion that Racial Discrimination Was a Motivating Factor in the
Enactment of S.B. 824”; and (4) “The Impact of the Official Action is a Disparate
Burden on Black Voters.” While the trial court at least managed to organize its
conclusions around the Arlington Heights framework, its compliance with Supreme
Court precedent begins and ends there.
¶ 124 In its conclusions of law, the panel cites Arlington Heights, a forty-five-year-
old Supreme Court case, a total of eleven times. It fails to cite Abbott, a four-year-old
Supreme Court case, at all. It cites McCrory, a six-year-old Fourth Circuit case, a
total of twenty times. It cites Raymond, a two-year-old Fourth Circuit case, a total of
one time—and that citation is to a portion of Raymond that cites McCrory and is
irrelevant to the holding or reasoning in Raymond. Similarly, the majority opinion
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of this Court cites Arlington Heights twenty-nine times, McCrory thirteen times,
Abbott seven times, and Raymond only four times.
¶ 125 Stated another way, the trial court completely ignored Raymond and Abbott,
which could not be more on point. As noted above, the Supreme Court of the United
States in Abbott reversed the decision of a three-judge panel because it imputed past
discriminatory intent to the then-sitting legislature and thereby failed to presume
good faith. In Raymond, the Fourth Circuit reversed the decision of the district court
because it imputed the discriminatory intent of the 2013 General Assembly to the
2018 General Assembly and thereby failed to presume the good faith of the legislature
that enacted S.B. 824—the legislation at issue in this case.
¶ 126 The order below does not even mention the presumption of legislative good
faith, let alone apply it. In fact, one of the order’s headings reads, “The Design of S.B.
824 Does Not Evince an Intent by the General Assembly to Cure Racial Disparities
Observed Under H.B. 589.” The Supreme Court’s precedent is clear:
The allocation of the burden of proof and the
presumption of legislative good faith are not changed by a
finding of past discrimination. Past discrimination cannot,
in the manner of original sin, condemn governmental action
that is not itself unlawful. The ultimate question remains
whether a discriminatory intent has been proved in a given
case. The historical background of a legislative enactment
is one evidentiary source relevant to the question of intent.
But we have never suggested that past discrimination flips
the evidentiary burden on its head.
Abbott, 138 S. Ct. at 2324–25 (cleaned up) (emphases added).
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¶ 127 The panel “made the same mistake as the panel in Abbott without even trying
to distinguish the Supreme Court’s holding.” Raymond, 981 F.3d at 304. To rely so
heavily on a Fourth Circuit case holding a prior law unconstitutional, while
completely ignoring not only Supreme Court precedent, but also a Fourth Circuit case
holding this very law constitutional, is error of the gravest kind. As in Abbott, “when
a finding of fact is based on the application of an incorrect burden of proof, the finding
cannot stand.” Abbott, 138 S. Ct. at 2326.
¶ 128 Further, even if the panel had applied the correct burden of proof, the
dissenting judge below correctly noted that the panel’s factual findings are not
supported by competent evidence and do not support the panel’s legal conclusions.
¶ 129 First, plaintiffs failed to produce any witness who could testify to the General
Assembly’s alleged discriminatory intent or rebut the presumption of good faith.
Representative Harrison, plaintiffs’ own witness, testified that she “cannot say that
racial bias entered into [passage of S.B. 824] and [she] would not say that racial bias
entered into [passage of S.B. 824].” As aptly put by the dissenting judge below, “[i]f
[p]laintiffs’ own witness, who was in the General Assembly and actively participated
in the passage of this legislation, did not then and does not now attribute the passage
of S.B. 824 with any discriminatory intent, then this Court certainly will not either.”
¶ 130 In addition, the panel’s factual findings regarding both the sequence of events
leading to the enactment of S.B. 824 and the legislative history of S.B. 824 fail to
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properly consider and credit the crucial importance of the voter-ID amendment.
Because this amendment created a positive constitutional duty for the General
Assembly to pass a voter-ID law, enabling legislation was mandatory, not optional.
The evidence plainly shows an intent to comply with the people’s will and the North
Carolina Constitution, not discriminatory intent.
¶ 131 Also, the panel’s factual finding that S.B. 824 will result in disparate impact
on the basis of race is wholly without evidentiary support. S.B. 824 allows all would-
be voters in North Carolina to vote either with or without an ID. Plaintiffs failed to
produce any concrete evidence that either they, or any other citizen of this state,
would not be able to exercise their right to vote, or would otherwise be precluded from
voting due to passage of S.B. 824. Any would-be voter can vote without an ID if they
submit a reasonable impediment declaration, which may only be rejected if the county
board of elections, after considering all relevant evidence in the light most favorable
to the would-be voter, unanimously determines that the declaration is false.
¶ 132 It is undisputed that every legal vote should be counted. In a footnote,
however, the majority seems to suggest that votes which are not lawfully cast should
nonetheless be counted. This notion that the right to vote is somehow divorced from
a voter’s responsibility to comply with the law is troubling. As stated by the Supreme
Court of the United States when reviewing an Indiana law requiring voter ID,
A photo identification requirement imposes some burdens
on voters that other methods of identification do not share.
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For example, a voter may lose his photo identification, may
have his wallet stolen on the way to the polls, or may not
resemble the photo in the identification because he recently
grew a beard. Burdens of that sort arising from life’s
vagaries, however, are neither so serious nor so frequent as
to raise any question about the constitutionality of SEA
483; the availability of the right to cast a provisional ballot
provides an adequate remedy for problems of that
character.
The burdens that are relevant to the issue before us are
those imposed on persons who are eligible to vote but do
not possess a current photo identification that complies
with the requirements of SEA 483. The fact that most
voters already possess a valid driver’s license, or some
other form of acceptable identification, would not save the
statute under our reasoning in Harper, if the State
required voters to pay a tax or a fee to obtain a new photo
identification. But just as other States provide free voter
registration cards, the photo identification cards issued by
Indiana’s BMV are also free. For most voters who need
them, the inconvenience of making a trip to the BMV,
gathering the required documents, and posing for a
photograph surely does not qualify as a substantial burden
on the right to vote, or even represent a significant increase
over the usual burdens of voting.
Crawford v. Marion County Election Board, 553 U.S. 181, 197–98, 128 S. Ct. 1610,
1620–21 (2008).
¶ 133 Here, the burdens imposed on plaintiffs “arise[ ] from life’s vagaries” and “are
neither so serious nor so frequent as to raise any question about the constitutionality”
of S.B. 824. Id., 533 U.S. at 197, 128 S. Ct. at 1620. The panel below relied heavily
on the fact that plaintiff Jabari Holmes, who has cerebral palsy, severe scoliosis, and
who is paraplegic, may encounter difficulties in obtaining a free ID under S.B. 824.
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Even if we ignore the fact that Mr. Holmes can still vote without an ID under S.B.
824, as discussed above, any assumed difficulties he may face in acquiring an ID have
nothing to do with race. Such is the case with the other plaintiffs and their
challenges. There is no evidence that Mr. Kearney’s failure to present an ID in 2016
because he left it at home was related to race. Similarly, Mr. Smith’s misplacement
of his ID in 2016 was not related to race, nor was Mr. Culp’s failure to present an
acceptable ID in 2016. Setting aside the fact that any difficulties they are assumed
to have encountered occurred under a prior law, the purported challenges were not
attributable to race—and, regardless of their race, all of these plaintiffs can vote
under S.B. 824 without identification.
¶ 134 As the dissenting judge noted below, “[t]here is no credible evidence that
obtaining” a form of qualifying ID under S.B. 824 “entails significant financial cost.”
The record also contains “no evidence that any voter, in particular any African
American voter, would be dissuaded from using” the reasonable impediment
declaration process if they failed to obtain a qualifying ID.¶ 135 Because the record is devoid of competent evidence supporting the panel’s
factual findings regarding the sequence of events, legislative history, and disparate
impact, these findings should not be permitted stand. Therefore, this Court should
reverse the panel’s decision not only because it failed to apply the correct legal
standard, but also because its factual findings are not supported by competent
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evidence and cannot justify its legal conclusions.
¶ 136 The majority here declines to consider the competency of the evidence or the
sufficiency of the factual findings below, accepting instead the conclusory findings of
the panel without scrutiny. Supra ¶ 83. It is notable that this same majority, on this
very day, is releasing an opinion in which it explicitly reweighs evidence, upends
factual findings, and overrules legal conclusions made by a trial court. See Harper v.
Hall, 2022-NCSC-121, ¶¶ 94–102. The logic-fluid view of factual findings from the
trial courts in these two cases today demonstrates that the majority is more
interested in outcomes than consistency.4
¶ 137 The majority also attempts to side-step the panel’s disregard for Supreme
Court precedent and cabin Abbott’s relevance by stating that the panel merely “us[ed]
the historical background of the law as one piece of circumstantial evidence.” Supra
¶ 38. As noted above, this is simply incorrect. The panel’s deliberate choice of a
heading, not simply a stray sentence, indicates the panel required “the General
Assembly to Cure Racial Disparities Observed Under H.B. 589.” It could not be any
clearer—the panel “flip[ped] the evidentiary burden on its head” by imposing this
4 The disparate treatment by the majority of the trial courts’ factual determinations
in these two cases seems contrary to Justice Earls’ statement that she “really believe[s] it
used to be that what we valued was consistency in our courts[.]” ‘Ramifications are
substantial.’ How Republicans gained a lasting grip on the NC Supreme Court, WRAL (Nov.
13, 2022), https://www.wral.com/ramifications-are-substantial-how-republicans-gained-a-
lasting-grip-on-the-nc-supreme-court/20570554/.
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requirement, and any assertion to the contrary is plainly wrong. See Abbott, 138 S.
Ct. at 2325.
¶ 138 There is no legitimate jurisprudential basis for dismissing directly on point
precedent from the Supreme Court of the United States. Where that Court has
reversed a decision because the lower “court’s references to the need to ‘cure’ the
earlier Legislature’s ‘taint’ [could not] be dismissed as stray comments,” id., and
where the panel’s decision in this case explicitly indicates that it is requiring the
General Assembly to “cure” the sins of a past legislature, reversal is required.
¶ 139 The majority’s treatment of Raymond is even more egregious. In a stunning
effort to recharacterize and dismiss a directly on-point case, the majority refers to
Raymond as a case that merely “determined that the constitutional amendment at
issue ‘served as an independent intervening event between the General Assembly’s
passage of [H.B. 589] and its enactment of [S.B. 824].” Supra ¶ 39 (alterations in
original) (quoting Raymond, 981 F.3d at 305). The majority conveniently declines to
acknowledge that Raymond did much more than that—the court in Raymond
reversed a lower court’s decision, which had ignored Abbott and the presumption of
legislative good faith, and it specifically concluded that S.B. 824 was not passed with
discriminatory intent. As with its discussion of Abbott, the majority chooses not to
engage in any meaningful comparative analysis of Raymond or its key holding—that
a trial court must presume legislative good faith and require plaintiffs to actually
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carry their burden.
¶ 140 Finally, the majority opines that S.B. 824 is not necessary because there is no
evidence of voter fraud. A simple search of the internet suggests otherwise. In fact,
last month, Democrat Staten Island District Attorney Michael E. McMahon released
a grand jury report detailing findings of fraud that occurred in a recent primary
election. Michael E. McMahon, District Attorney, Report of the Grand Jury (2022),
https://www.statenislandda.org/wp-content/uploads/2022/11/Grand-Jury-Report-
49_compressed.pdf. The grand jury determined that there were “abundant
opportunities for unscrupulous candidates (or those acting at their direction or on
their behalf) to abuse the system without probable detection or criminal sanction cry
out for remedy.” Id.
¶ 141 In addition to changes in absentee ballot procedures and signature matching
requirements, the report recommended that a government-issued identification be
required before voting in person or by absentee ballot. Grand Jury Finds Numerous
Instances of Ballot Fraud in NYC Council Race on Staten Island, New York Post (Nov.
22, 2022), https://nypost.com/2022/11/22/grand-jury-finds-numerous-instances-of-
ballot-fraud-in-nyc-council-race-on-staten-island/. The majority cannot seriously
contend that North Carolina is somehow immune from these abuses.
¶ 142 Reasonable regulations which are designed to protect election integrity, like
those suggested in New York, not only deter unscrupulous individuals from taking
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advantage of the abundant opportunities that exist to abuse the system, but they also
promote public confidence in election outcomes.
III. Conclusion
¶ 143 “Fidelity to previous decisions,” ‘Ramifications are substantial.’ How
Republicans gained a lasting grip on the NC Supreme Court, WRAL, would yield a
far different result than that reached by the majority today. A proper analysis
pursuant to Abbott and Raymond would show that legal error infected the entirety of
the trial court’s decision. Accordingly, this Court should reverse and remand to the
trial court for application of the correct burden of proof and the proper presumption
of legislative good faith.
Chief Justice NEWBY and Justice BARRINGER join in this dissenting
opinion.