Voter Access and Election Manipulation Threats Advance in the Courts and the Capitol
States like Texas, Florida, Georgia, Arizona have drawn the national spotlight for increasingly brazen attacks on voters and election administrators alike. Since 2020, each has enacted laws to restrict access to the ballot box. Each advanced narratives that erode voters’ confidence in our elections. And each saw rule changes that disproportionately harm Black and brown voters.
Now North Carolina – historically the site of some of our nation’s most shameful race-based voter suppression efforts – appears poised to join their ranks.
In a highly unusual move, two key cases will be reheard by a state supreme court that flipped to a majority hostile to voting rights earlier this year. What’s more, at least two significant legislative attacks on voting access are underway, with anti-voter lawmakers now holding a near veto-proof majority in the legislature.
Any one of these potential changes on the table would have a significant impact on how elections are run in North Carolina ahead of the 2024 presidential election. This is why North Carolina may prove to be the epicenter of state voting rights fights in 2023. Simply put, the future of fair, free, and accessible elections is on the line in the Tar Heel State.
Harper v. Hall, the Future of Partisan Gerrymanders, and the Independent State Legislature Theory
In February 2022, the North Carolina Supreme Court struck down the state’s congressional and legislative maps adopted by the legislature in 2021 for being unconstitutional partisan gerrymanders. In a 4-3 ruling, the court tossed out both congressional and legislative maps drawn by the legislature, reversing a decision made by a three judge panel in the state one month prior and rejecting lawmakers’ attempts to draw a map that favored Republicans.
Redistricting woes are hardly anything new in North Carolina, as various congressional and legislative maps have been thrown out by state and federal courts in 2016, 2017, 2018, 2019, and now 2022.
What is new is the court’s willingness to rehear a case just 13 months after it was decided, and with no new facts impacting the decision – other than a change in the composition of the court. After an election reshaped the make-up of the North Carolina Supreme Court, the new majority agreed to rehear Harper v. Hall in early 2023 after a partisan group of legislators filed a petition claiming the court was not only mistaken in its finding the maps to be unconstitutional gerrymanders, but also that the court overstepped its authority. In the past 20 years, the North Carolina Supreme Court has granted fewer than 1% of the petitions for rehearing that were filed. Harper v. Hall will be reheard in Raleigh on March 14.
The court’s choice to rehear Harper v. Hall could have significant repercussions on Moore v. Harper, a case argued before the U.S. Supreme Court in December, rising from the North Carolina Supreme Court’s decision to strike down the 2021 legislative maps. Moore hinges on the so-called independent state legislature theory – the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without any interference whatsoever from state courts. A U.S. Supreme Court decision on the independent state legislature theory would have far-reaching consequences for many aspects of our democracy. This theory – widely criticized by democracy, race and constitutional law scholars, local governments, veterans of the armed services, and current and former elections administrators – was central in past efforts to manipulate the outcome of the 2020 election.
Legal experts disagree on the impact of the rehearing on the U.S, Supreme Court case, but many theorize that if the North Carolina Supreme Court issues a new decision on Harper v. Hall before the U.S. Supreme Court issues its decision in Moore v. Harper, the question before the U.S. Supreme Court will become moot – meaning the Court may not issue a decision on the independent state legislature theory after all.
Holmes v. Moore and the Effort to Reinstate a Racially Discriminatory Voter ID Law
In December 2022, the North Carolina Supreme Court struck down a 2018 no-alternative photo ID law. The law in question severely limited the form of ID a voter must produce in order to cast a ballot, mandating that even provisional ballots may not be counted unless a voter returns to their polling place to provide an approved photo ID.
This stringent law never took effect, however. In its 4-3 ruling, the court found that the law was “formulated with an impermissible intent to discriminate against African American voters” and “motivated by a racially discriminatory purpose.” Evidence showed that Black voters in North Carolina were 39% more likely than white voters to lack the limited types of acceptable photo IDs outlined in the law.
Just two months later – again, after an election reshaped its ideological makeup – the court agreed to rehear Holmes v. Moore in response to a petition filed by anti-voter legislators claiming the photo ID law – and the process through which it was proposed and enacted – does not have discriminatory intent or impact, as the court previously ruled.
As we detailed in last month’s Hot Policy Take, many states have voter ID laws, but these laws typically give voters a variety of options, such as bank statements and utility bills, and/or they allow election officials to verify the identity of voters without ID via other means, such as the last four digits of their social security numbers or a signature match. Holmes v. Moore will be reheard on March 15.
State Legislature Considers Severe Cuts to Early Voting
More than 2 million North Carolinians voted early in 2022 and more than 3.6 million North Carolinians voted early in 2020. In fact, in the two most-recent general elections held in the state, more North Carolinians chose to vote early than on Election Day. Despite the overwhelming popularity of early voting, North Carolina lawmakers have introduced legislation to cut the early voting period nearly in half.
H.B. 123 proposes to amend the state constitution to prohibit election officials from offering more than seven days of in-person early voting – a sharp departure from the 13-17 days of early voting currently available under state law. The number of days of early voting that North Carolina currently offers matches that offered by the plurality of the country, with just six states offering fewer than eight days. In fact, each of North Carolina’s neighbors also provide at least 13 days of early voting, with Virginia, Georgia, and Tennessee each providing more than 20.
Efforts to pass H.B. 123 buck a national trend. Since the 2020 election, 17 states have expanded access to in-person early voting. Just last year, North Carolina’s neighbor to the south enacted a law creating two weeks of early voting for South Carolina voters.
The bill was introduced on February 16 and currently awaits action in the House Committee on Election Law & Campaign Finance Reform.
State Legislature Considers Tossing Mail Ballots Postmarked on Election Day
When North Carolinians vote by mail, they can be confident that their ballot will be counted as long as it’s postmarked by Election Day and received within three days of the election. Now, a new bill could throw a wrench in a process that works for North Carolina voters.
S.B. 88 would require ballots to be received by the county board of elections a full three days earlier than they are today. If enacted, each and every vote received later than 7:30 p.m. on Election Day will be thrown out. This is no small matter; such a rule would have tossed out more than 11,000 votes in the 2020 general election.
The current law passed in 2009 with near-unanimous bipartisan support, and polling found the change is opposed by North Carolina voters by greater than a 2-to-1 margin.
The bill was introduced on February 9 and currently awaits action in the Senate Committee on Redistricting & Elections.