RALEIGH, N.C. — North Carolina Supreme Court Justices do not need smoking-gun evidence of racial animus or to wait for actual North Carolina voters to be disenfranchised in order to strike down Senate Bill 824 as unconstitutional, a law which would require voters to have a photo ID to cast a ballot, according to plaintiff’s arguments in a rehearing of the case, Holmes v. Moore, on Wednesday.
Both Justice Phil Berger Jr. and Justice Trey Allen asked whether there were racist statements in the trial court record from legislators when they passed SB 824, indicating it would be required to show the legislature acted with discriminatory intent.
“We are fortunately well-past the time where we expect to find blatant statements of racially-discriminatory motive in the legislative record,” said Paul Brachman, of Paul, Weiss, Rifkind, Wharton & Garrison LLP, who argued on behalf of the plaintiffs in the case. “I hope we never go back there.”
Brachman pointed Justices to precedent in a case called Arlington Heights which provides a legal standard that is designed to suss out discriminatory intent in the absence of direct evidence — particularly in this day and age when it is considered taboo to be outwardly racist.
Counsel for the legislative defendants conceded that the standard in Arlington Heights applied to the Holmes case but spent much of their argument proposing reasons it shouldn’t define the case.
“By conceding that Arlington Heights applies, the whole point of Arlington Heights is that a law that’s neutral on its face may nonetheless been passed with discriminatory intent, correct?,” asked Justice Anita Earls.
She pointed out that the North Carolina Supreme Court has routinely adopted that legal standard and questioned what legal reason existed for reversing Holmes.
The case was originally filed by Southern Coalition for Social Justice (SCSJ) joined by co-counsel from Paul, Weiss, Rifkind, Wharton & Garrison LLP in December 2018. It alleged North Carolina’s 2018 voter ID law (S.B. 824), approved by a Republican-led supermajority in a lame-duck session, was racially motivated. In September 2021, following a three-week trial, the majority of a three-judge Superior Court panel agreed, striking down the voter ID law, prompting lawmakers’ appeal.
The NC Supreme Court ultimately issued a decision in the case in December 2022 striking down the law as unconstitutional. Following a change in the composition of the Supreme Court, legislative defendants asked for a rehearing but did not point to any valid legal reason for doing so.
Their counsel said Wednesday that it’s because the Justices who already decided it got it wrong and “misapprehension” is a standard in the rule for rehearings.
“Help me understand when any case would be final, because in every case there are two sides to the argument and the side that loses believes that we misapprehended the law and got it wrong, so where do we draw the line?,” asked Justice Earls. “When do we not allow a rehearing? If one side says we got it wrong that’s sufficient to have rehearing and reverse our law — how does that give us any finality in the law?”
Brachman reiterated the record that already exists in Holmes and told Justices that Arlington Heights allows courts to consider many factors in weighing discriminatory intent, including historical evidence, like the intent of the prior legislature (the last voter ID bill in North Carolina was struck down as unconstitutional because it targeted African American voters “with surgical precision”).
He urged them not to reverse the case, and said there were no new arguments that undermined the initial decision.
“It’s startling that in 2023 certain Justices seem to believe that the test for striking down a racially discriminatory law is whether or not legislators uttered a racial epithet or shared any racist motivations during floor debates,” said Jeff Loperfido, Interim Chief Counsel for Voting Rights at SCSJ. “That standard would allow a whole host of discriminatory laws from our state’s history to be revived, including poll taxes, literacy tests, and Jim Crow laws.”
The Southern Coalition for Social Justice, founded in 2007, partners with communities of color and economically disadvantaged communities in the South to defend and advance their political, social, and economic rights through the combination of legal advocacy, research, organizing, and communications. Learn more at southerncoalition.org and follow our work on Twitter, Facebook, and Instagram.