While the legal challenges to the 2020 presidential election count in several states are not over, one thing is clear. To prevent future election mischief and theft, Republicans are going to have to fight as hard to tighten election security laws in 2021 and beyond as Democrats fought to weaken election security laws in 2020.

One part of that will be requiring identification for voting, whether in person or by absentee ballot (the use of no-excuse mail-in ballots and mass mailing of applications/ballots is a separate issue that also needs attention). The 4th Circuit Court of Appeals just issued a ruling upholding North Carolina’s 2018 voter i.d. law, after having previously invalidated a 2013 law if found discriminatory in intent.

The Opinion by a unanimous three-judge panel, listed the types of i.d. permitted by the law:

Subject to exceptions, the 2018 Voter-ID Law requires North Carolinian voters to produce photographic identification to vote in person or by absentee ballot. 2018 N.C. Sess. Laws 144, § 1.2(a). The law at first listed ten forms of authorized ID:
1. North Carolina driver’s licenses;
2. Other nontemporary IDs issued by the Division of Motor Vehicles;
3. United States passports;
4. North Carolina voter photo ID cards;
5. Tribal enrollment cards issued by state- or federally recognized tribes;
6. Certain student IDs issued by post-secondary institutions;
7. Certain employee IDs issued by a state or local government entity;
8. Out-of-state driver’s licenses and nonoperator IDs (if the voter is newly registered);
9. Military IDs; and
10. Veterans IDs.

The Court then listed the ways in which people without such i.d.’s would be accommodated with special consideration, including provisional voting.

The Court held the District Court improperly relied on discriminatory intent of the legislature from the previous 2013 law, and thereby flipped the burden of proof against the presumption of legislative neutrality:

This case challenges the constitutionality of a 2018 North Carolina law requiring voters to present photographic identification (“2018 Voter-ID Law”). This law was passed after this Court found that North Carolina acted with racially discriminatory intent in
enacting a 2013 omnibus voting law (“2013 Omnibus Law”), which included a voter-ID requirement. See N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, 215 (4th Cir. 2016). The Challengers allege that the 2018 Voter-ID Law was enacted with the same discriminatory intent as the 2013 Omnibus Law. And the district court preliminarily agreed, finding that the Challengers were likely to succeed on the merits of their constitutional claims and issuing a preliminary injunction against the law’s enforcement. See N.C. State Conf. of the NAACP v. Cooper, 430 F. Supp. 3d 15, 54 (M.D.N.C. 2019). We must determine whether this was an abuse of discretion.

The outcome hinges on the answer to a simple question: How much does the past matter? To the district court, the North Carolina General Assembly’s recent discriminatory past was effectively dispositive of the Challengers’ claims here. But the Supreme Court directs differently. See Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). A legislature’s past acts do not condemn the acts of a later legislature, which we must presume acts in good faith. Id. So because we find that the district court improperly disregarded this principle by reversing the burden of proof and failing to apply the presumption of legislative good faith, we reverse…..

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. 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.

It’s not clear if this is the end of the legal challenges. Apparently there are state court challenges pending.

There is a reason Democrats fight so hard on these laws. And it’s not because they want to assure that only legal votes count.


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