Is voter ID unconstitutional? North Carolina’s newest trial on that question is happening now

RALEIGH, N.C. - A trial that started Monday in Raleigh will help decide whether North Carolina voters will need photo identification next time they vote.

This is the state-level trial over the constitutionality of a 2018 voter ID law. There is also a separate lawsuit, over the same law, moving forward in federal courts.

No elections have been held using voter ID since the law was passed in 2018; it was put on hold until this trial.

The trial is expected to last multiple days. Monday’s schedule included opening arguments from both the plaintiffs challenging the constitutionality of voter ID and the legislators who are defending it, and at least one witness for the plaintiffs.

“Your honors, voters will be harmed by this law,” Allison Riggs of the Southern Coalition for Social Justice, the lead attorney for the challengers in the case, said in her opening arguments. “And they are disproportionately Black ... They are voters that face barriers to voting already. And they are voters who were targeted by previous laws, and this law, in an attempt to keep Black North Carolinians from voting.”

David Thompson of the Washington firm Cooper & Kirk, who is representing the GOP legislative leaders, shot back at that claim in his own opening arguments.

“We acknowledge the deeply lamentable and indeed shameful history of racial discrimination in this state,” he said. “But SB 824 is not part of that shameful history. It is a state-of-the-art voter ID law that both seeks to secure elections and guarantee access to all registered voters.”

Regarding constitutionality, the only elections for federal office that were mandated by the Constitution at the time of its ratification were the elections for the House of Representatives.

Senators were selected by their state legislatures, and the legislatures selected the method of choosing Electors to the Electoral College.

After the Civil War, the 14th amendment section 2 required that if "the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced..."

This means that the Constitution required states to prove both that: 1) the people who voted were citizens (whose votes were not abridged by non-citizen voting), and 2) that no citizens were denied the right to vote.

The only way to prove the above is to have the voters produce proof of citizenship.

Note that elections for Senators didn't begin for another 50 years, so they weren't included in the 14th amendment. This could be a loophole, because Senate elections would not be impacted by the 14th amendment's section 2 since the Senate is not a proportional representation body. A devious person might argue that the 14th amendment's silence on the Senate suggests that voting in elections for Senators can be open to anyone, not just citizens.

-PJ

I will never cease to be amazed at how little people know about our system of government.

I’ll try to explain this in simple terms.

We have a system of dual sovereigns. State and Federal. This is why you can be charged under both State law and federal law for the same conduct without it violating the double jeopardy clause.

The federal constitution is supreme. If a State law or Constitutional provision violates the federal constitution then the law will be struck down.

However, on issues that solely implicate STATE law or the STATE constitution and for which there is no federal issue, then the Supreme Court cannot hear or rule on the case.

It’s easiest to give an example with search and seizure cases. The 4th Amendment sets the floor. If a State tried to pass a law that said police could search your house at any point without a warrant, that would implicate the federal Constitution and SCOTUS could rule on that.

However, If a State wanted to be more restrictive under the State Constitution than the Fourth Amendment requires, SCOTUS is powerless to intervene.

A good example of this is the vehicle exception to the warrant requirement. Under the 4th Amendment, if an officer has probable cause that a vehicle contains contraband, the officer can search the vehicle without a warrant, so long as it is not on the curtilage of private property. That’s the floor.

However, New York has interpreted its State Constitution as requiring a warrant for vehicle searches. Since the New York interpretation rests on adequate and independent State grounds, SCOTUS can’t intervene and overrule it.

The same applies to this issue here. SCOTUS has ruled on voter ID laws in Crawford v. Marion County Election Board, 553 U.S. 181 (2008). In other words, laws like Indiana’s don’t violate the Federal Constitution. However, that doesn’t mean that voter ID is now required nationwide. State law still controls here. If a State Supreme Court interprets its own STATE Constitution as barring voter ID in that State, SCOTUS can’t overturn that decision if it rests on adequate and independent State grounds.

I quoted, verbatim from several Supreme Court cases that have already decided this issue.

Stuff like this is WHY internet keyboard lawyers shouldn’t be trusted and why there are places called law schools and a thing called a bar exam.

Completely non-responsive and, quite frankly, willfully ignorant.

This exact thing happened in Pennsylvania in 2014. See Applewhite v. Commonwealth of Pennsylvania.

The Federal Courts can only get involved if a federal right is implicated. If the decision is based solely on State grounds, or on adequate and independent State grounds, the federal courts cannot get involved as it relates to THAT decision. A separate federal lawsuit adjudicating the federal issues may be completely irrelevant to the State issues.

So, as I already stated, this will depend on if the decision is couched solely in terms of a State Constitutional right, or if there are federal grounds involved.

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