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Legislators accuse voter ID critics of ‘sandbagging’ before May 6 federal trial


Top legislative leaders are urging a federal judge to strike recent court filings in the upcoming trial over North Carolina’s voter identification law. The dispute heads to trial May 6 in Winston-Salem.


Lawyers for Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed court documents Monday responding to a March 20 filing from voter ID critics labeled “amended supplemental disclosures.”


“Subject to the scheduling order that Plaintiffs agreed to and that this Court entered, fact discovery closed on May 15, 2020,” according to the document from Berger and Moore. “Now, less than two months before trial, Plaintiffs have newly identified numerous individuals and organizational representatives likely to have discoverable information and seven new categories of documents that Plaintiffs may use to support their claims at trial.”


“Of course, given the timing of Plaintiffs’ disclosure, it is impossible for Defendants to take discovery into these newly identified individuals and organizations,” legislators’ lawyers added. “Moreover, Plaintiffs neglected to identify many such individuals by name, as Rule 26(a)(1)(A) requires. Plaintiffs’ vague categorizations of organizational representatives, election officials, poll workers, and voters could encompass thousands of individuals throughout North Carolina.”


“Finally, it is equally impossible given the timing of Plaintiffs’ disclosure of seven newly identified document categories years after the close of discovery that include documents that are not in the possession, custody, or control of Defendants and whose location Plaintiffs vaguely describe only as ‘Counsel for Plaintiffs,’ to take discovery of Plaintiffs regarding these unproduced documents Plaintiffs may use to support their claims at trial,” the court filing argued.


“Plaintiffs should not be allowed to sandbag Defendants by dramatically broadening their disclosures on the eve of trial,” Berger and Moore’s lawyers wrote.


The legislative leaders urge US District Judge Loretta Biggs to strike the amended supplemental disclosures or “declare them disregarded.” As an alternative, voter ID critics should reveal the names of “each individual with discoverable information” and make each one available for a deposition before the trial.


“Legislative Defendants acknowledge trial is fast approaching and that the discovery necessary to remediate the prejudice caused by Plaintiffs’ late disclosure would require postponing the trial date, so their preference is for this Court to strike, or order disregarded, the late-filed disclosure and prohibit Plaintiffs from relying on those late disclosed witnesses and documents at trial,” the document added.


Biggs issued an order on March 13 denying the State Board of Elections’ October 2021 motion for summary judgment in the more than five-year-old case. The elections board had argued that Biggs should reject the lawsuit without a trial.


“State Board Defendants argue that Plaintiffs’ evidence does not show discriminatory intent under the Arlington Heights factors,” Biggs wrote, citing a precedent case. “Plaintiffs argue that there is more than sufficient evidence in the record for each factor to defeat summary judgment with respect to discriminatory intent. Plaintiffs are correct, at least with respect to the historical background and whether S.B. 824 bears more heavily on one race than another or its impact.”


Senate Bill 824 was the 2018 legislation that enacted a voter identification law for North Carolina. State lawmakers approved the law weeks after voters decided to place a photo ID requirement in the state constitution.


Legal action at the federal and state level delayed implementation of voter ID until 2023. North Carolina now requires voter ID. The federal case could affect voter ID requirements for the general election in November.


“With respect to the historical background, the Parties acknowledge as courts have repeatedly acknowledged, North Carolina’s history of racial discrimination, including the 2013 racially discriminatory voting restrictions,” Biggs wrote. “State Board Defendants contend that nonetheless, racial discrimination has not been proven in this case, and specifically argues that ‘[t]he amendment to the North Carolina Constitution marks a significant intervening circumstance that breaks the link between … North Carolina’s history of discrimination with a prior photo ID law and the present photo ID law.’”


“Plaintiffs contend that the process for the constitutional amendment was ‘rushed and irregular.’ … It is undisputed that the North Carolina Constitution was amended to mandate a photo voter ID law. However, factual disputes remain as to the implications that arise from this fact, including whether the voter-ID amendment breaks the link between North Carolina’s history of discrimination or whether S.B. 824 is an extension of North Carolina’s recent history of discrimination,” Biggs wrote.


Biggs is scheduled to hold a bench trial in May. That means she will oversee the proceedings with no jury.


“Assessing whether Plaintiffs have shown that racial discrimination was a substantial or motivating factor behind enactment of S.B. 824 is fact-intensive, and at this stage, the Court cannot weigh the evidence or make credibility determinations,” she wrote. “Even after affording the state legislature a presumption of good faith, in light of the evidence in the record on the historical background and impact of S.B. 824, State Board Defendants have failed to show that there is an absence of evidence to support that racial discrimination was a ‘substantial’ or ‘motivating’ factor behind the enactment of S.B. 824.”


“Should Plaintiffs succeed in showing discriminatory intent, the burden would then shift to State Board Defendants to show that S.B. 824 would have been enacted without racial discrimination,” Biggs added.


“The resolution of this issue depends on the credibility of the witnesses, and therefore, is best determined after observation of the demeanor of the witnesses during direct and cross-examination,” the judge explained. “The Court at this time, cannot scrutinize the legislature’s actual nonracial motivations and cannot rule as a matter of law on whether S.B. 824 would have been enacted without racial discrimination.”


In addition to voter ID, the lawsuit challenges provisions in the 2018 law that expanded the number of permitted partisan poll observers and expanded the reasons for challenging a ballot. Biggs will allow those challenges to move forward.


The judge’s order cited evidence that supported voter ID critics’ claims about racial discrimination. “[T]here is sufficient evidence in the record to suggest an inequality in the opportunities enjoyed by non-white and white voters to elect their preferred representatives,” Biggs wrote.


“In assessing the totality of the circumstances, the factual disputes could reasonably be resolved to show that voting is not ‘equally open’ to African-American and Hispanic voters,” the judge wrote. “The threat that Plaintiffs may not ultimately prevail at trial … does not affect the Court’s determination at summary judgment. In light of the factual disputes, the Court cannot rule as a matter of law that S.B. 824 merely poses disparate inconveniences as opposed to an outright denial or abridgement of the right to vote.”


Lawyers for North Carolina’s top legislative leaders filed a motion in February supporting State Board of Elections arguments in the case. The move was designed to ensure that lawmakers could participate in any appeals.


State lawmakers joined the case in 2022, after the US Supreme Court confirmed their right to defend the voter ID law.


Biggs’ decision on a trial date arrived nearly three months after she held a hearing in the case, now known as NC State Conference of the NAACP v. Hirsch. At that time, ID opponents asked Biggs to schedule a February trial. Legislative leaders and the State Board of Elections opposed the request. A February trial could have affected the use of voter ID in the March 5 primary.


The federal trial had been scheduled twice before — in January 2021 and January 2022. In both cases, appeals delayed the case.


A stay issued in December 2021 placed the case in limbo. Plaintiffs challenging the ID law returned to federal court last year after the state Supreme Court’s April 2023 ruling allowed the ID requirement to move forward.


A 5-2 decision from the Republican-led state high court overturned a December 2022 ruling from the same court. Democrats had held a 4-3 Democratic majority in December. Both rulings involved party-line votes from the justices.


Lawmakers approved the 2018 voter ID law weeks after NC voters enshrined an ID requirement in the state constitution. That amendment has faced its own legal challenge in state courts. A case targeting the amendment sits now with a three-judge Superior Court panel. The voter ID law can stand or fall legally regardless of the case challenging the state constitutional amendment.


Forward Justice filed the federal suit in December 2018 on behalf of the state NAACP and local NAACP chapters.


A year later, on Dec. 31, 2019, Biggs issued a preliminary injunction blocking the voter ID law from taking effect. In a 60-page opinion, Biggs cited North Carolina’s “sordid history of racial discrimination and voter suppression.”


Parts of the law “were impermissibly motivated, at least in part, by discriminatory intent,” wrote Biggs, appointed to the federal bench by former President Barack Obama.

Nearly one year later, a three-judge 4th US Circuit Court of Appeals panel unanimously reversed Biggs’ decision. Appellate judges determined that the trial court had “abused its discretion” when granting the injunction.


The 4th Circuit judges said Biggs was wrong to factor North Carolina’s earlier 2013 voter ID measure into her decision about the 2018 law.


“The district court here considered the General Assembly’s discriminatory intent in passing the 2013 Omnibus Law to be effectively dispositive of its intent in passing the 2018 Voter-ID Law,” wrote Judge Julius Richardson, an appointee of President Donald Trump. “In doing so, it improperly flipped the burden of proof at the first step of its analysis and failed to give effect to the Supreme Court’s presumption of legislative good faith. These errors fatally infected its finding of discriminatory intent. And when that finding crumbles, the preliminary injunction falls with it.”


Judges Marvin Quattlebaum, a Trump appointee, and Pamela Harris, an Obama appointee, joined Richardson’s opinion.


By the time the 4th Circuit struck down Biggs’ injunction, state courts had moved to block the 2018 voter ID law. The state Supreme Court’s April 2023 decision removed the final state court roadblock against voter ID.


The case already has attracted attention from the nation’s highest court.


Republican legislative leaders asked to intervene in the case to defend the voter ID law. Biggs said no in June 2019. The 4th Circuit also ruled against legislative intervention.

Once the US Supreme Court agreed to hear lawmakers’ arguments for intervention, Biggs issued her stay in December 2021. That order blocked a trial that had been scheduled for January 2022. Biggs put the case on hold pending action from the US Supreme Court “or until further Order of this Court.”


In June 2022, the U.S. Supreme Court ruled, by an 8-1 vote, that Republican legislative leaders would be allowed to intervene in the case. The nation’s highest court determined that Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, should have the opportunity to represent legislative interests in defending the law.

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