Holmes v. Moore

270 N.C.App. 7

840 S.E.2d 244

Jabari HOLMES, Fred Culp, Daniel E. Smith, Brendon Jaden Peay, Shakoya Carrie Brown, and Paul Kearney, Sr., Plaintiffs

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, Defendants

No. COA19-762

Court of Appeals of North Carolina.

Filed: February 18, 2020

Southern Coalition for Social Justice, by Jeffrey Loperfido and Allison J. Riggs, and Paul, Weiss, Rifkind, Wharton & Garrison LLP, by Andrew J. Ehrlich, Ethan Merel, Apeksha Vora, Jane B. O'Brien, Paul D. Brachman, Jessica Anne Morton, and Laura E. Cox, pro hac vice, for plaintiffs-appellants.

Phelps Dunbar LLP, by Nathan A. Huff, and Cooper & Kirk, PLLC, by David H. Thompson, Peter A. Patterson, and Nicole Frazer Reaves, pro hac vice, and by Nicole J. Moss, for legislative defendants-appellees.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Olga E. Vysotskaya de Brito, Senior Deputy Attorney General Amar Majmundar, and Special Deputy Attorney General Paul M. Cox, for defendants-appellees the State of North Carolina and the North Carolina State Board of Elections.

HAMPSON, Judge.

Factual and Procedural Background

Jabari Holmes, Fred Culp, Daniel E. Smith, Brendon Jaden Peay, Shakoya Carrie Brown, and Paul Kearney, Sr. (collectively, Plaintiffs)¹ appeal from an Order Denying Plaintiffs’ Motion for Preliminary Injunction and Denying in Part and Granting in Part Defendants’ Motions to Dismiss (Order) filed on 19 July 2019, concluding in part Plaintiffs were not entitled to a preliminary injunction enjoining Senate Bill 824, titled "An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote," (S.B. 824),² which established, inter alia , photographic voter identification (photo ID) requirements for elections in North Carolina. The Record before us tends to show the following:

On 6 November 2018, a majority of North Carolina voters, approximately 55%, voted in favor of amending Article VI of the North Carolina Constitution by requiring voters to present qualifying photo ID before casting a ballot. Sections 2(4) and 3(2) of Article VI of the North Carolina Constitution now provide:

Voters offering to vote in person shall present photographic identification before voting. The General Assembly shall enact general laws governing the requirements of such photographic identification, which may include exceptions.

N.C. Const. art. VI, §§ 2 (4), 3 (2).

Less than a month after approval of this constitutional Amendment and during a "lame-duck" legislative session, the General Assembly passed S.B. 824 as implementing legislation on 6 December 2018. Governor Roy Cooper (Governor Cooper) vetoed S.B. 824 on 14 December 2018. Five days later, the General Assembly reconvened and overrode Governor Cooper's veto. Thus, on 19 December 2018, S.B. 824 became law. 2018 N.C. Sess. Law 144.

At its core, S.B. 824 requires all voters, both those voting in person or by absentee ballot, "produce" an acceptable form of identification "that contain[s] a photograph of the registered voter[.]" Id. § 1.2(a); see also id. § 1.2(e). Section 1.2(a) designates ten different forms of acceptable IDs:

1. North Carolina driver's licenses; 2. Certain nontemporary IDs issued by the Division of Motor Vehicles (DMV);

3. United States passports;

4. North Carolina voter photo-ID cards;

5. Tribal enrollment cards issued by a state or federally recognized tribe;

6. Certain student IDs issued by post-secondary institutions;

7. Certain employee IDs issued by a state or local government entity;

8. Out-of-state driver's licenses or special ID cards for nonoperators for newly registered voters;

9. Military IDs issued by the United States government; and

10. Veterans IDs issued by the United States Department of Veterans Affairs.

Id. § 1.2(a). Under this Section, the first eight forms of ID may be used only if "valid and unexpired, or ... expired for one year or less[.]" Id. Whereas, military and veterans IDs may be used "regardless of whether the identification contains a printed expiration or issuance date[.]" Id. Moreover, if a voter is sixty-five years old or older, any expired form of identification allowed above is deemed valid if it was unexpired on the voter's sixty-fifth birthday. Id. Student and government-employee IDs, however, do not automatically qualify as acceptable IDs. Instead, post-secondary institutions and public employers must apply to the North Carolina State Board of Elections for approval of their IDs. See id. §§ 1.2(b)-(c) (containing original approval process); see also 2019 N.C. Sess. Law 22, §§ 2-3 (N.C. 2019) (amending approval process).

S.B. 824 also contains two ways for voters to obtain free photo-ID cards. First, a registered voter may visit their county board of elections and receive an ID "without charge" so long as the voter provides their name, date of birth, and the last four digits of their social security number. 2018 N.C. Sess. Law 144, § 1.1(a). Second, under Section 1.3(a), voters over the age of seventeen may obtain free of charge a nonoperator-ID card from the DMV as long as the voter provides certain documentation, such as a birth certificate. Id. § 1.3(a). If the voter does not have this documentation, the State must supply it free of charge.

See id. § 3.2(b). Similarly, if a registered voter's driver's license has been "seized or surrendered due to cancellation, disqualification, suspension, or revocation[,]" the DMV must automatically mail the voter a "special identification card" that can be used for voting. Id. § 1.3(a).

Lastly, S.B. 824 contains several exemptions to its photo-ID requirements. Exemptions exist for voters who (1) have "a religious objection to being photographed," (2) are victims of a recent natural disaster, or (3) "suffer[ ] from a reasonable impediment that prevents [them] from presenting photograph identification[.]" Id. § 1.2(a). If one of these circumstances applies, a voter may cast a "provisional ballot" by "complet[ing] an affidavit under penalty of perjury at the voting place" affirming their identity and their reason for not presenting photo ID. Id. After submitting this affidavit, the county board of elections "shall find that the provisional ballot is valid unless the county board has grounds to believe the affidavit is false." Id. In a similar vein, if a registered voter fails to bring their acceptable ID to the polls, the voter may "cast a provisional ballot that is counted only if the registered voter brings an acceptable form of photograph identification ... to the county board of elections no later than the end of business on the business day prior to the canvass ... of elections[.]" Id.

On the same day S.B. 824 became law, Plaintiffs filed their Verified Complaint (Complaint) in this action in Wake County Superior Court against 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 (collectively, Legislative Defendants); the State of North Carolina; and the North Carolina State Board of Elections (collectively, State Defendants).³ In their Complaint, Plaintiffs alleged six causes of action claiming S.B. 824 facially violates various provisions of the North Carolina Constitution. In particular, Plaintiffs alleged S.B. 824 violates the Equal Protection Clause found in Article I, Section 19 of the North Carolina Constitution, claiming S.B. 824 was enacted with racially discriminatory intent and thereby intentionally discriminates against voters of color (Discriminatory-Intent Claim). The same day, Plaintiffs also filed a Motion for Preliminary Injunction (Preliminary-Injunction Motion) seeking a preliminary injunction to prevent "Defendants from implementing in any regard, relying on, enforcing, conducting elections, or preparing to conduct any elections in conformity with the voter ID provisions of [S.B.] 824, specifically Parts I and IV." In response, Legislative and State Defendants each filed Motions to Dismiss on 22 January and 21 February 2019, respectively.

The Chief Justice of the North Carolina Supreme Court transferred this case to a three-judge panel on 19 March 2019. See N.C. Gen. Stat. § 1-267.1(a1) (2019) (requiring the transfer of "any facial challenge to the validity of an act of the General Assembly" to a three-judge panel of the Superior Court of Wake County). After hearing arguments from the parties, the three-judge panel entered its Order on Defendants’ Motions to Dismiss and Plaintiffs’ Preliminary-Injunction Motion on 19 July 2019. In its Order, the trial court dismissed all of Plaintiffs’ claims except for Plaintiffs’ Discriminatory-Intent Claim, concluding "Plaintiffs have made sufficient factual allegations to support" this Claim. However, a majority of the panel denied Plaintiffs’ Preliminary-Injunction Motion, concluding "Plaintiffs have failed to demonstrate a likelihood of success on the merits" of their Discriminatory-Intent Claim. One judge dissented from the portion of the Order denying Plaintiffs’ Preliminary-Injunction Motion because, in his opinion and based on the evidence before the panel, "Plaintiffs have shown a reasonable probability of success on...