In July 2013, North Carolina lawmakers passed the Voter Information Verification Act – known more commonly as voter ID. It’s a controversial law that was ultimately struck down in federal court for being unconstitutional. Nearly four years later, state legislators are now working on another voter ID bill that would be taken to voters as a constitutional amendment, according to sources.
Republicans widely support voter ID, and Democrats - making up a small minority - would likely not be needed to approve a measure.
“We are a hundred percent committed to the idea of voter ID and we are still working out the logistics of what we believe to be the most sure-fired way to get voter ID implemented that will withstand the inevitable challenges that will come from the left,” said David Lewis (R-Harnett), the Rules Chairman of the North Carolina House.
Federal Court Deemed 2013 Voter ID Law Unconstitutional
The 2013 law did more than mandate voters to show a photo ID at the ballot box. It also reduced early voting from 17 to 10 days; eliminated same-day registration and out-of-precinct balloting; and did away with pre-registration for teenagers. The controversial changes set off protests and a string of lawsuits. In the end, the U.S. Supreme Court chose not to hear an appeal of the invalidated law, leaving in place a lower appellate court ruling. That decision determined legislators had acted with discriminatory intent against black voters with “almost surgical precision.”
While this particular bill has now been fully adjudicated, the issue of voter ID, and other possible voting changes, remains. One consideration is enacting a voter ID requirement through a constitutional amendment, decided on the ballot, by the voters themselves.
“We believe the public support for voter ID is sufficient, that clarifying it in the North Carolina Constitution as a requirement is something the people would support,” Lewis said. “So I think that to mute future court challenges, you could certainly see that.”
Some experts believe a voter ID requirement passed by the people could have a firmer footing in court.
“I think it would make it somewhat harder to challenge in court, though not impossible,” said Dan Tokaji, a law professor at Ohio State University, who focuses on election law. After the previous court ruling that cited “almost surgical precision” and discriminatory intent, a constitutional ballot initiative would give legislators some cover, according to Tokaji.
“The primary objective to try to avoid a finding of discriminatory intent by saying ‘Hey we put the thing before voters and they approved it.’ Which would put on anyone challenging the law the formidable burden of showing the people of North Carolina acted with discriminatory intent, at least if they want to act on a constitutional claim,” explained Tokaji, who said other types of legal challenges would be possible.
Legal Challenges Filed Against Other Voter ID Constitutional Referendums
Last fall Missouri put voter ID on its ballot as a constitutional referendum. Voters approved the measure by a wide 63-37 margin, but two groups recently sued the state in an effort to block the voter-approved initiative. The case is pending.
By most accounts, voter ID is quite popular. Polls conducted in North Carolina and nationally show 70-80 percent of Americans support it. Opponents say that backing has been aided, in part, by unfounded allegations of voter fraud. Looking at history as a guide, the 2018 mid-term elections would tend to favor Democrats. Although a ballot question like this would generate a lot of interest.
“I think this is where the real politics can play in,” said Chris Cooper, a political science professor at Western Carolina. “Which side can use this issue to motivate their base the most? My sense right now is that this is a pretty salient issue for both the Democrats and the Republicans.”
According to the National Conference of State Legislatures, there are seven states with strict photo ID measures and another three have strict non-photo identification rules. North Carolina is one of the 19 states currently without any requirement to show documentation at the polls.