North Carolina Supreme Court Upholds Voter ID Law 5 Months After Striking It Down

Last month, the North Carolina Supreme Court reversed two decisions it had handed down less than a year ago that invalidated the state’s voter ID law and congressional districts as unconstitutional. These reversals came after two new conservative justices ascended to the bench in January following the 2022 election. Less than two months later, in an exceedingly rare move, the newly configured majority agreed to rehear both cases. On a single day, the court granted as many rehearings as it had in the past 20 years. This shift in the court’s balance of power dissolved its 4–3 Democratic majority and heralded a new conservative era.

On April 28, the reconstituted court reversed its decision in Holmes v. Moore, restoring the state’s voter ID law, S.B. 824. The court retreated from its initial decision, concluding that the law does not produce a racially discriminatory impact and was not enacted with a racially invidious purpose. Writing for the majority, Justice Phil Berger resurrected many of the arguments laid out in his prior dissent. However, the court went further in two notable ways: it adopted a significant change to the standard of proof used to discern discriminatory intent under the state constitution, and it embraced a highly deferential review of legislative acts and presumption of legislative good faith.

First, the majority abandoned the Arlington Heights evidentiary framework, which had long been used by the court to evaluate equal protection challenges to states laws under the North Carolina Constitution. In Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977), the U.S. Supreme Court devised an evidentiary framework for assessing whether a facially race-neutral law is motivated by discriminatory intent. Under this test, courts must weigh a series of factors, including the law’s discriminatory impact, historical background, legislative history, and the specific events leading to its enactment.

Both the plaintiffs and defendants in Holmes had conceded that Arlington Heights was the proper legal standard under which to review the constitutional challenge. In its new Holmes decision, however, the court opined that the Arlington Heights test is ill-suited to divine discriminatory intent in challenges to state laws that are facially neutral because “it is incompatible with [the] state Constitution and [the] Court’s precedent,” which require a “heightened burden” of proof. Under this heightened standard, “the challenger must prove beyond a reasonable doubt that: (1) the law was enacted with discriminatory intent on the part of the legislature, and (2) the law actually produces a meaningful disparate impact along racial lines.” The Arlington Heights test, the court now insisted, allows plaintiffs to proffer “speculative” and “subjective” evidence. Importantly, the Arlington Heights model is designed to discover the intent of facially race-neutral laws, recognizing that plaintiffs will rarely unearth the proverbial smoking gun, and may only have circumstantial evidence available to reveal a lawmakers’ motivations.   

The majority’s approach also sharply contrasts with the long tradition of state constitutions containing greater protections of rights than the U.S. Constitution. In a dissent joined by Justice Anita Earls, Justice Michael Morgan explained that by making it harder to prove equal protection violations under an “unprecedented burden of proof,” the “majority ignores [the] fundamental principle,” that “the federal Constitution is a floor, below which [the court] cannot sink,” and provides “lesser protection to citizens” in North Carolina.

 In addition to displacing the Arlington Heights evidentiary standard, the state’s high court reiterated throughout its opinion that “constitutional deference and the presumption of legislative good faith caution against” condemning legislative acts as unconstitutional. The majority characterized its ruling as “once again stand[ing] as a bulwark against” the “spillover” of “a partisan legislative disagreement” seeping into the courts. It described the plaintiffs as seeking “legal recourse for the vindication of political interests.” In a sharp rebuke, the dissenters admonished the “majority’s abrupt departure” from the court’s “deference to the rule of law” — including the highly unusual decision to rehear and reverse its prior ruling.

In upholding S.B. 824, the court rejected the trial court’s factual findings that the law was racially discriminatory, giving hardly any weight to, among other things, the relevance of historical evidence of discriminatory laws. Its review of state statutes under a “beyond a reasonable doubt” standard has a clear implication: when the legislature decides to intentionally discriminate against Black voters, the court will defer to it and uphold such a law even in the face of strong evidence proving discriminatory intent. Though considered of little import in the court’s opinion, the facts remain undisturbed. North Carolina has a long history of discriminatory voting laws, Black voters are 39 percent more likely to lack a qualifying ID, and the enacting legislature made no efforts to determine the law’s discriminatory impact on those burdened by it.

Going forward, it is unclear whether the court will follow a consistent or predictable pattern in deciding the extent of its deference to the legislature. It appears likely, however, that in future cases, deferential review will imperil civil rights plaintiffs and play a decisive role in constitutional analysis of laws alleged to be discriminatory. This is dangerous. Reviewing courts should not accord special status to legislatures in the name of respect for separation of powers without a sensitivity for specially protected rights and added scrutiny of laws that put those rights at risk.

The court’s undoing of its own precedents did not stop at Holmes v. Moore. It also reversed its decision in Harper v. Hall, endowing lawmakers with unbridled power to redraw legislative and congressional maps and engage in extreme partisan gerrymandering. And in a separate decision, the court also revoked the voting rights of 56,000 North Carolinians with prior felony convictions who had completed their terms of incarceration and had been re-enfranchised less than one year ago following a lower court ruling.

To many spectators, the court’s decision to rehear and reverse itself in Holmes v. Moore and Harper v. Hall represented more than mere disagreements about the law: they signaled intensifying partisan strife within the state’s high court and a new conservative majority’s revanchist movement against the prior court’s progressivism. In these and other rulings, the justices turned back the clock on steady progress that had been made to expand citizens’ rights in North Carolina. These decisions break with a vision of the law that extended to all the full sweep of the state constitution’s promises. Conservatives are likely to hold a majority on the North Carolina Supreme Court for at least the next six years. The enormity of its new jurisprudential era remains to be seen.   

Robyn Sanders is a counsel with the Brennan Center’s Voting Rights and Elections Program. She previously served as a judicial law clerk for Associate Justice Anita Earls on the North Carolina Supreme Court.

Suggested Citation: Robyn Sanders, North Carolina Supreme Court Upholds Voter ID Law 5 Months After Striking It Down, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 8, 2023), https://statecourtreport.org/our-work/analysis-opinion/north-carolina-supreme-court-upholds-voter-id-law-5-months-after-striking.