RALEIGH, N.C. (WGHP) – Second verse, same as the first: Exactly 24 hours after the North Carolina Supreme Court conducted a rare rehearing on a decision about redistricting, justices did it again – this time reconsidering a judgment on a voter ID amendment to the North Carolina Constitution – in a hearing that sounded a lot like the first.

This was about the court’s decision in December to uphold the finding of a lower court in Holmes v. Moore that struck down the law that led to a constitutional amendment voters passed in 2018. Like the redistricting decision reheard on Wednesday, this also was on a 4-3 vote along party lines – Democrats for and Republicans against.

Plaintiffs attorney Paul Brachman answered various questions from Associate Justices Richard Dietz (from left), Phil Berger Jr. and Michael Morgan as Chief Justice Paul Newby (right) listens. (WGHP)

Senate Leader Phil Berger (R-Eden) had responded to the decision by promising to pass a new law through the General Assembly, but after the court’s partisan control swung on Jan. 1 – to a 5-2 majority of Republicans for the first time in history – he and House Speaker Tim Moore (R-Cleveland) seized the moment – as they had on redistricting – and asked for a rehearing based on errors made by the court and “judicial activism.”

“The people of North Carolina sent a message on election day. They clearly rejected the judicial activism of the outgoing majority,” Moore said in his filings for rehearing. “I am committed to fighting for the rule of law and the will of the voters. It’s time for voter ID to be law, as the people of North Carolina have demanded.”

The tenor and pace of the arguments and questions were similar on Wednesday – newcomer Richard Dietz and holdover Anita Earls asked a lot of questions, and Associate Justice Tamara Barringer didn’t ask any – and lawyers again tried to underscore points already argued at length while justices, depending upon their tenure, either pushed back against the prior court decision or tried to understand why the case would be reheard in the first place.

The key issues, filtered through the lens of references to cases before various courts, including the U.S. Supreme Court, boiled down to two questions: In drafting the amendment-enabling law, did the legislature act in a way that discriminates, and was the legislature afforded a “presumption of good faith,” as its work normally is given?

The trial court had ruled yes on the former, which meant no on the latter, and the NC Supreme Court in its ruling had upheld that finding based on fact and the inference it drew from the arguments (more on that later).

During Wednesday’s hearing, associate justices Phil Berger Jr. (son of the man named above), Trey Allen and Dietz variously suggested, as defense counsel Pete Patterson argued, that the record would show that the voter ID law as passed – modeled after a law employed in South Carolina – did not discriminate because it was the most varied array of IDs, didn’t suggest no one could vote and offered options for voting provisional ballots if an ID wasn’t present.

There were questions and references to historic and court-ruled discrimination among lawmakers, legal precedent from the 1800s again and, ultimately, the process under which the law was defined and passed and justices first reviewed it.

Various arguments

Patterson and Paul Brachman for the plaintiffs batted these back and forth like so many volleyballs, struck with more force under some questions and less force under others.  

Berger, who had written the dissenting opinion in December, was a more forceful voice in this session, and he bore in on the issue of racially discriminatory intent among legislators.

“There is no direct evidence of racial animus in Senate Bill 824,” Berger said, referring to the statute that created the amendment, in questioning Brachman. He also referred to the Arlington Heights case that was the core of the court’s decision.

“You can look at discriminatory intent by looking at circumstantial evidence,” Brachman said. “We are well past the point where a legislator stands up on the floor and declares the intent of racial discrimination.”

But it was another exchange between Berger and Brachman that reached what really might be the most essential issue in the juxtaposition of what the legislature did and how the NC Supreme Court acted: lame duck sessions, a term Brachman introduced as reasoning found by the court.

What is lame duck?

“What do you mean by a lame duck session?” Berger asked.

Brachman explained that it was a session held after a general election but before the new legislature took over and possibly would change the intent of actions. Republicans at the time held a veto-proof majority that they had lost in the election.

Brachman: “Acting during this lame duck session was consistent with – one – wielding power and – two – not wanting to pass a watered-down version of the voter ID law.”

Berger: “Would this decision [being reheard] have been done in December by a lame duck court?”

Brachman: “This case was heard by the prior court before the election. The fact that the opinion came out after the election … was not analogous to what legislature did in SB 824.”

Associate Justice Richard Dietz

Chief Justice Paul Newby, in his only comment of hearing: “Is it not true that court doesn’t speak until it renders its decision?”

Brachman: “I’m not familiar with the processes when court it defers … That’s why we were here on a redecision.”

Dietz: “In the Court of Appeals this happens. … When it does… you rehear the case, which I believe we are doing right now?”

Allen: “In the lame duck session … watered-down version … What do you think would be? The law in front of us provides IDs free of charge and does not prevent anyone from voting. What would be a more watered-down voter ID law?”

Brachman: “HB 589 [a law overturned by federal court] … provisional ballots were not counted.”

Earls cited that some states allow for signatures as alternatives to photo IDs.

“What would be the most inclusive version of what voter ID might look like?” Brachman responded. “This was hurried through in a lame duck session.”

The decision in December

Associate Justice Anita Earls

Earls wrote for the majority that the bill that authorized the vote on the constitutional amendment for voter ID “was passed with the discriminatory intent to target African-American voters.”

The voter ID law sought to require picture IDs for voters and replaced a law passed earlier by the General Assembly that had been ruled unconstitutional in federal court. 

Gov. Roy Cooper vetoed the original bill, but the GOP supermajority in the General Assembly overrode that veto. After numerous legal appeals, voters ultimately approved the bill with 55.49% of about 3.7 million votes cast.

Because of the GOP’s supermajority, Wake County Superior Court Judge G. Bryan Collins Jr. had agreed with the NAACP that the legislature couldn’t take action to establish the amendment because the courts had found its makeup to be illegal along racial lines. His ruling had been overturned by the state Court of Appeals.

The Supreme Court’s opinion, in upholding the trial court’s finding on review, says the General Assembly did not act with proper consideration process and that Senate Bill 824 “violates Article I, section 19 of the North Carolina Constitution because the law was enacted with discriminatory intent.”

Berger wrote the dissent, joined by Newby and Barringer. His opinion cited a judgment by the Fourth Circuit Court that had found no “discriminatory intent” and that “legal error infected the entirety of the trial court’s decision.”

“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,” Berger Jr. wrote.