Policy Watch Investigates

State AG: Local Voter ID laws unconstitutional

Attempts by the state legislature to pass local bills requiring voters in some, but not all, counties to produce photo identification at the polls would fail to meet the constitutional guarantee of equal protection, according to a recent analysis by the N.C. Attorney General’s Office.

The state Department of Justice, in a Nov. 23 advisory letter sent to Gov. Bev Perdue’s office, indicated that a strategy by GOP leaders to circumvent Perdue’s June veto of a voter ID bill would run into constitutional issues. Having individual counties ask for more stringent identification rules would create an unconstitutional scenario where voters in some counties face more hurdles to vote than in other areas.

“It is therefore our views that significant equal protection concerns would arise if voter identification requirements were established for some voters and not others based merely on their county of residence,” wrote Grayson Kelley, the chief deputy Attorney General, in the letter. He later added, “The enactment of local acts applying photo voter identification requirements in only certain counties would raise serious equal protection issues under both the United States Constitution and North Carolina Constitution.”

Click here to read Kelley’s seven-page advisory letter to Mark Davis, Perdue’s general counsel, obtained by N.C. Policy Watch through a public records request.

In recent weeks, a handful of conservative county commissions (in Craven, Davidson, Gaston, Lincoln and Rowan counties) have passed resolutions requesting that the legislature allow the counties to require photo identification to vote. The legislature would then, during a special session, have to pass what’s called a “local bill” in order to grant those powers to those counties. Local bills are generally exempt from governor vetoes, and usually deal with issues specific to counties.

But Kelley, in his letter, said that the courts would likely find that lawmakers don’t have the ability to push through piecemeal changes to voter identification requirements, and that state law calls for changes of that magnitude be made through an all-encompassing general bill, like the one that was vetoed by Perdue.

Kelley also says in the letter that Perdue would necessarily be stripped of her ability to veto those local bills, because the larger voter registration issue had already been taken up by state lawmakers.

Like much of what happened in this year’s legislative sessions, the push to require voters to show ID at the polls has broken down on partisan lines, with Republicans behind the additional requirements and Democrats voting against the proposal. The “Act to Restore Confidence in Government by Requiring that Voters Provide Photo Identification Before Voting” passed both the House and Senate in the spring, but failed to become law after Perdue vetoed it on June 23.

House Republicans are a few votes short of overriding Perdue’s veto, and N.C. House Speaker Thom Tillis told the News & Observer in June that a vote could come anytime he has enough votes lined up.

“If seven Democrats don’t show up for a publicly announced session, that would be the easy way to override it,” he said in an interview, referring to the required three-fifths needed.

According to Democracy NC, a good government watchdog group, the push at the local level also broke down on partisan, as well as racial, sides, with 27 white Republicans county commissioners voting to ask for the voter identification rules in the five counties. Opposing the bills in the five counties were three Democrats, one white and two African-Americans.

During legislative debates, supporters of the bill said that requiring that voters show picture IDs would prevent voter fraud. But critics said the bill would do little to prevent the already minimal issue of voter fraud in the state, and amounts to voter suppression. It would create barriers to voting especially among the poor, African-Americans and elderly who may not have valid driver’s licenses or other photo identification, critics say.

Nearly a half-million voters don’t have state-issued identification, according to an estimate by the N.C. State Board of Elections.

A Democracy NC analysis also found that in the 25 counties with the highest percentage of registered voters lacking a state photo ID in the state, 15 of those counties are also home to the largest impoverished populations in the state. That means many of the voters who would have to go out and get photo ID in order to vote are living in some of the poorest areas of the state.