Holmes v. Moore

• Court: Supreme Court of North Carolina
• Decided: April 28, 2023
• Docket: 342PA19-3
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 342PA19-3

Filed 28 April 2023

JABARI HOLMES, FRED CULP, DANIEL E. SMITH, BRENDON JADEN PEAY, AND PAUL KEARNEY, SR.

v. TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives; PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; DAVID R. LEWIS, in his official capacity as Chairman of the House Select Committee on Elections for the 2018 Third Extra Session; RALPH E. HISE, in his official capacity as Chairman of the Senate Select Committee on Elections for the 2018 Third Extra Session; THE STATE OF NORTH CAROLINA; and THE NORTH CAROLINA STATE BOARD OF ELECTIONS

On discretionary review pursuant to N.C.G.S. § 7A-31 from the judgment

entered on 17 September 2021 by a divided three-judge panel of the Superior Court,

Wake County, holding that S.B. 824 violates Article I, Section 19 of the North

Carolina Constitution and permanently enjoining that law. On 16 December 2022,

this Court affirmed the judgment, and that mandate was issued on 5 January 2023.

On 3 February 2023, this Court allowed a petition for rehearing pursuant to N.C. R.

App. P. 31. Heard in the Supreme Court on 15 March 2023.

Southern Coalition for Social Justice, by Jeffrey Loperfido and Hillary Harris Klein; and Jane O’Brien, pro hac vice, Paul D. Brachman, pro hac vice, and Andrew J. Ehrlich, pro hac vice, for plaintiff-appellees.

Nicole J. Moss, David H. Thompson, pro hac vice, Peter A. Patterson, pro hac vice, Joseph O. Masterman, pro hac vice, John W. Tienken, pro hac vice, Nicholas A. Varone, pro hac vice, and Nathan A. Huff, for legislative defendant- appellants. HOLMES V. MOORE

Opinion of the Court

Joshua H. Stein, Attorney General, by Terence Steed, Special Deputy Attorney General, Laura McHenry, Special Deputy Attorney General, and Mary Carla Babb, Special Deputy Attorney General, for defendant-appellants State of North Carolina and North Carolina State Board of Elections.

BERGER, Justice.

There is no legal recourse available for vindication of political interests, but

this Court is yet again confronted with “a partisan legislative disagreement that has

spilled out . . . into the courts.” Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775,

783 (S.D. Ind. 2006), aff’d sub nom. Crawford v. Marion Cnty. Election Bd., 472 F.3d

949 (7th Cir. 2007), aff’d, 553 U.S. 181, 128 S. Ct. 1610 (2008). This Court once again

stands as a bulwark against that spillover, so that even in the most divisive cases, we

reassure the public that our state’s courts follow the law, not the political winds of

the day.

It is well settled that the proper exercise of judicial power requires great

deference to acts of the General Assembly, as the legislature’s enactment of the law

is the sacrosanct fulfillment of the people’s will. See Pope v. Easley, 354 N.C. 544,

546, 556 S.E.2d 265, 267 (2001) (“[T]he General Assembly . . . functions as the arm of

the electorate.”). With that basic principle in mind, we are confronted here with a

simple question: does S.B. 824 violate the meaningful protections set forth in Article

I, Section 19 of the North Carolina Constitution? Because it does not, we reverse and

remand to the trial court for dismissal of this action with prejudice.

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I. Background

In November 2018, the people of North Carolina amended our Constitution to

require that “[v]oters offering to vote in person shall present photographic

identification before voting.” N.C. Const. art. VI, § 2(4). The people commanded “[t]he

General Assembly [to] enact general laws governing the requirements of such

photographic identification, which may include exceptions.” Id. The General

Assembly thereafter complied by passing S.B. 824, now codified in Chapter 163 of our

General Statutes. See An Act to Implement the Constitutional Amendment

Requiring Photographic Identification to Vote, S.L. 2018-144, 2019 N.C. Sess. Laws

72.

Pursuant to S.B. 824, registered voters are required to present one of a

multitude of acceptable forms of identification prior to casting a ballot. These include

a valid, unexpired: (1) North Carolina driver’s license; (2) North Carolina

nonoperator’s identification; (3) United States passport; (4) North Carolina voter

identification card; (5) student identification card issued by any statutorily-defined

eligible institution; (6) employee identification card issued by a state or local

government entity; or (7) out-of-state driver’s license or nonoperator’s identification,

provided that the voter’s registration was within ninety days of the election. N.C.G.S.

§ 163-166.16(a)(1) (2021). These forms of identification are acceptable even if expired,

so long as they have been expired for one year or less. Id.

In addition, if voters lack one of the aforementioned identifications, they may

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also present any of the following identifications regardless of their expiry: (1) a

military identification issued by the United States government; (2) a veterans

identification card issued by the United States Department of Veterans Affairs; (3) a

tribal enrollment card issued by a State or federally recognized tribe; or (4) an

identification card issued by a department, agency, or entity of the United States or

North Carolina for a government public assistance program. N.C.G.S. § 163-

166.16(a)(2) (2021). Registered voters over the age of sixty-five may present any of

the aforementioned identifications listed in sections (a)(1) and (2) regardless of

expiry, so long as the identification was unexpired on the date of the registered voter’s

sixty-fifth birthday. N.C.G.S. § 163-166.16(a)(3) (2021).

If a registered voter lacks one of the various types of acceptable identifications,

the law also requires that “[t]he county board of elections . . . issue without charge

voter photo identification cards upon request to registered voters.” N.C.G.S. § 163-

82.8A(a) (2021). To receive a free photo identification card, a registered voter need

only provide “the registered voter’s name, the registered voter’s date of birth, and the

last four digits of the voter’s social security number.” N.C.G.S. § 163-82.8A(d)(1)

(2021). These free identification cards are valid for ten years, which, when coupled

with the one-year expiration exception provided by N.C.G.S. § 163-166.16(a)(1),

means a voter can use a free photo identification card for a period of eleven years.

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N.C.G.S. § 163-82.8A(a).1

The law further provides a host of exceptions for any registered voter who,

despite the wide range of acceptable identifications, and despite the availability of

freely issued identification cards, nevertheless “does not produce an acceptable form

of identification.” N.C.G.S. § 163-166.16(d) (2021). First, if a registered voter cannot

produce acceptable identification, he or she “may cast a provisional ballot” that will

be counted “if the registered voter brings an acceptable form of photograph

identification . . . to the county board of elections no later than the end of business on

the business day prior to the canvass by the county board of elections as provided in

G.S. 163-182.5.” N.C.G.S. § 163-166.16(c) (2021). In addition, a registered voter is

not required to present any acceptable form of photo identification if that failure is

due to: (1) “a religious objection to being photographed;” (2) “a reasonable impediment

that prevents the registered voter from presenting a photograph identification;” or (3)

“being a victim of a natural disaster occurring within 100 days before election day

that resulted in a disaster declaration by the President of the United States or the

Governor of this State.” N.C.G.S. § 163-166.16(d)(1)–(3).

The “reasonable impediment” exception allows the registered voter to cast a

provisional ballot so long as they complete a reasonable impediment declaration

1 The trial court entered an erroneous finding of fact that the free identification cards expire after one year. In its previous opinion in this case, the majority of this Court repeated this erroneous finding. Holmes v. Moore, 383 N.C. 171, 199, 881 S.E.2d 486, 507 (2022) (“[F]ree NC Voter IDs had a one-year expiration date.”).

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affidavit. N.C.G.S. § 163-166.16(d)(2). The law mandates that the State Board of

Elections implement a reasonable impediment declaration form that, at a minimum,

allows voters to identify any of the following as their reasonable impediment to

presenting an acceptable ID:

(1) Inability to obtain photo identification due to:

a. Lack of transportation.

b. Disability or illness.

c. Lack of birth certificate or other underlying documents required.

d. Work schedule.

e. Family responsibilities.

(2) Lost or stolen photo identification.

(3) Photo identification applied for but not yet received by the registered voter voting in person.

(4) Other reasonable impediment. If the registered voter checks the “other reasonable impediment” box, a further brief written identification of the reasonable impediment shall be required, including the option to indicate that State or federal law prohibits listing the impediment.

N.C.G.S. § 163-166.16(e) (2021).

Any provisional ballot cast by a registered voter who fails to present an

acceptable form of identification, but who nevertheless submits a reasonable

impediment affidavit, must be counted as a valid ballot “unless the county board [of

elections] has grounds to believe the affidavit is false.” N.C.G.S. § 163-166.16(f)

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(2021).

This law is one of the least restrictive voter identification laws in the United

States. See N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 310 (4th Cir.

2020) (“Indeed, the 2018 [North Carolina] Voter-ID Law is more protective of the

right to vote than other states’ voter-ID laws that courts have approved.”); see also

Greater Birmingham Ministries v. Sec’y of State for Alabama, 992 F.3d 1299 (11th

Cir. 2021) (upholding a more restrictive voter identification law); Lee v. Va. State Bd.

of Elections, 843 F.3d 592 (4th Cir. 2016) (same); South Carolina v. United States,

898 F. Supp. 2d. 30 (D.D.C. 2012) (same).

In sum, S.B. 824 permits registered voters to present a multitude of acceptable

identifications, including expired identifications, and requires the State to provide

free voter identification cards to any registered voter. If a registered voter leaves

their identification at home or otherwise fails to present it on voting day, he or she

can cast a provisional ballot which will be counted if the identification is later

presented to the county board of elections. Even if a registered voter still somehow

fails to obtain or otherwise possess an acceptable form of identification, the law

permits him or her to cast a provisional ballot that will be counted so long as they do

not provide false information in the reasonable impediment affidavit. Essentially,

North Carolina’s photo identification statute does not require that an individual

present a photo identification to vote.

Nevertheless, shortly after passage of S.B. 824, plaintiffs filed a facial

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challenge to the legislation in Wake County Superior Court, alleging that the law

violates numerous provisions of the North Carolina Constitution. Specifically,

plaintiffs alleged the law: (1) violates Article I, Section 19 because it was enacted with

discriminatory intent; (2) violates Article I, Section 19 because it unjustifiably and

significantly burdens the fundamental right to vote; (3) violates Article I, Section 19

because it creates different classes of voters who will be treated disparately in their

access to their fundamental right to vote; (4) violates Article I, Section 10 because it

infringes on the right to participate in free elections; (5) violates Article I, Section 10

because it conditions the fundamental right to vote on the possession of property; and

(6) violates Article I, Sections 12 and 14 because it infringes upon the rights of

assembly, petition, and freedom of speech.

Plaintiffs moved for a preliminary injunction to enjoin implementation and

enforcement of S.B. 824. Defendants moved to dismiss plaintiffs’ claims, and the

three-judge panel assigned to the case entered an order denying plaintiffs’ motion for

a preliminary injunction and dismissing all but the first of plaintiffs’ claims.2

Plaintiffs appealed the trial court’s denial of the preliminary injunction and the Court

of Appeals reversed the panel’s decision. Holmes v. Moore, 270 N.C. App. 7, 36, 840

S.E.2d 244, 266–67 (2020).

Thereafter, the panel issued the preliminary injunction and held a trial on the

As plaintiffs did not appeal the dismissal of these claims, plaintiffs’ only remaining 2

argument is their discriminatory intent claim under Article I, Section 19.

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merits of plaintiffs’ equal protection claim. A majority of the three-judge panel

decided in plaintiffs’ favor, holding that S.B. 824 violates Article I, Section 19 of the

North Carolina Constitution because it was enacted with discriminatory intent. The

panel then issued an injunction permanently enjoining implementation of the law.

One judge on the panel dissented, concluding that plaintiffs had failed to meet

their burden of proving the law was enacted with discriminatory intent. Defendants

timely appealed to the Court of Appeals—however, after briefing began, but before

the Court of Appeals could consider the case, this Court granted plaintiffs’ petition

for expedited review prior to a determination by the Court of Appeals.

As is relevant to our consideration of this case, a separate group of plaintiffs

challenged S.B. 824 in federal court prior to the present matter reaching this Court.

Plaintiffs there made nearly identical arguments, asserting that the voter

identification law violated the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution because it was enacted with

discriminatory intent. On the plaintiffs’ motion, the district court granted a

preliminary injunction because it found that the plaintiffs were likely to succeed on

the merits of their constitutional claim. N.C. State Conf. of the NAACP v. Cooper, 430

F. Supp. 3d. 15, 54 (M.D.N.C. 2019).

The defendants appealed in that federal case, and the Fourth Circuit, in a

lengthy and detailed opinion, held that this very law was not enacted with

discriminatory intent and reversed the district court’s decision to invalidate S.B. 824

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because of “fundamental legal errors that permeate[d]” the district court’s order.

Raymond, 981 F.3d at 310–11. Most remarkably, the Fourth Circuit concluded that

“the district court improperly reversed the burden of proof and disregarded the

presumption of legislative good faith,” and that when the correct legal principles were

applied to the plaintiffs’ arguments, “the remaining evidence in the record fails to

meet the Challengers’ burden.” Id. at 311.

On appeal to this Court in the present matter, defendants argued that the

panel erred in finding the law was enacted with discriminatory intent because the

panel improperly reversed the burden of proof and disregarded the presumption of

legislative good faith. Defendants further contended that, as indicated by the Fourth

Circuit in Raymond, plaintiffs’ challenge could not be sustained under the correct

application of the relevant legal principles. In December 2022, after an election that

would change the composition of this Court, but prior to the expiration of the terms

of two outgoing justices, the majority—half of which was composed of those two

justices—issued an opinion affirming the lower court’s issuance of the injunction.

Holmes v. Moore, 383 N.C. 171, 881 S.E.2d 486 (2022). In so doing, the majority

claimed to apply federal precedent but declined to follow the Fourth Circuit’s

guidance from Raymond, the federal case which found that S.B. 824 did not violate

the federal Equal Protection Clause. Id. at 189, 881 S.E.2d at 500.

Following this Court’s decision, defendants timely filed a petition for

rehearing, arguing that the majority of this Court overlooked or misapprehended

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relevant points of fact and law. This Court determined that petitioners had satisfied

the requirements of Rule 31 of the Rules of Appellate Procedure and ordered

rehearing in an order entered 3 February 2023. After supplemental briefing and oral

argument, and upon rehearing pursuant to Rule 31, we withdraw the prior decision

reported at 383 N.C. 171, 881 S.E.2d 386 “and treat the case before us as a hearing

de novo on the issue raised.” Alford v. Shaw, 320 N.C. 465, 467, 358 S.E.2d 323, 324

(1987) (citing Trust Co. v. Gill, State Treasurer, 392 N.C. 164, 237 S.E.2d 21 (1977);

Clary v. Bd. of Educ., 286 N.C. 525, 212 S.E.2d 160 (1975)).

II. Standard of Review

“Whether a statute is constitutional is a question of law that this Court reviews

de novo.” State v. Grady, 372 N.C. 509, 521–22, 831 S.E.2d 542, 553 (2019) (quoting

State v. Romano, 369 N.C. 678, 685, 800 S.E.2d 644, 649 (2017)). “Under a de novo

review, the court considers the matter anew and freely substitutes its own judgment

for that of the lower tribunal.” Bartley v. City of High Point, 381 N.C. 287, 293, 873

S.E.2d 525, 532 (2022) (quoting Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C.

334, 337, 678 S.E.2d 351, 354 (2009)). “In exercising de novo review, we presume that

laws enacted by the General Assembly are constitutional, and we will not declare a

law invalid unless we determine that it is unconstitutional beyond reasonable doubt.”

Cooper v. Berger, 370 N.C. 392, 413, 809 S.E.2d 98, 111 (2018) (quoting State v.

Berger, 368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016)).

“[T]he trial court’s findings of fact are conclusive on appeal if supported by

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competent evidence, even if the evidence is conflicting.” State v. Parisi, 372 N.C. 639,

649, 831 S.E.2d 236, 243 (2019) (cleaned up). While “a [trial] court’s finding[s] of fact

on the question of discriminatory intent [are] reviewed for clear error,” when “a

finding of fact is based on the application of an incorrect burden of proof, the finding

cannot stand.” Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018). “[W]hether the court

applied the correct burden of proof is a question of law subject to plenary review.” Id.

III. Analysis

A. Introduction

“Common sense, as well as constitutional law, compels the conclusion that

government must play an active role in structuring elections; ‘as a practical matter,

there must be a substantial regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to accompany the democratic

processes.’ ” Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992)

(quoting Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 1279 (1974)). “[I]t should

go without saying that a State may take action to prevent election fraud without

waiting for it to occur and be detected within its own borders.” Brnovich v.

Democratic Nat’l Comm., 141 S. Ct. 2321, 2348 (2021). Indeed, “the integrity of

the election process empowers the state to enact laws to prevent voter fraud before it

occurs, rather than only allowing the state to remedy fraud after it becomes a

problem.” Fisher v. Hargett, 604 S.W.3d 381, 404 (Tenn. 2020) (cleaned up).

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The Supreme Court of the United States has recognized that “every voting rule

imposes a burden of some sort.” Brnovich, 141 S. Ct. at 2338. “The burden of

acquiring, possessing, and showing a free photo identification is simply not severe.”

Crawford, 553 U.S. at 209, 128 S. Ct. at 1627 (Scalia, J., concurring). “[T]he

inconvenience of making a trip to [a government office], gathering the required

documents, and posing for a photograph surely does not qualify as a substantial

burden on the right to vote, or even represent a significant increase over the usual

burdens of voting.” Id. at 198, 128 S. Ct. at 1621. See also Milwaukee Branch of

NAACP v. Walker, 2014 WI 98, ¶ 4, 357 Wis. 2d 469, 475–76, 851 N.W.2d 262, 265

(“[P]hoto identification is a condition of our times where more and more personal

interactions are being modernized to require proof of identity with a specified type of

photo identification. With respect to these familiar burdens, which accompany many

of our everyday tasks, [a photo identification requirement] does not constitute an

undue burden on the right to vote.”).

B. Judicial Review

Plaintiffs here have asserted that in enacting S.B. 824, the legislature acted

“at least in part to entrench itself by burdening the voting rights of reliably Democrat[

] African-American voters.” Although the Supreme Court of the United States has

recognized that “partisan motives are not the same as racial motives,” Brnovich, 141

S. Ct. at 2349, plaintiffs contend that the mere allegation that race played some part

in enactment of the law compels us to consider the effects S.B. 824 has on “reliably

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Democrat” voters when evaluating intent of the legislature, and in doing so, to depart

from our well-settled approach to reviewing the constitutionality of legislative acts.

However, “[a] facial challenge must fail where the statute has a plainly legitimate

sweep.” Crawford, 553 U.S. at 202, 128 S. Ct. at 1623 (cleaned up).

Under our Constitution, “power remains with the people and is exercised

through the General Assembly, which functions as the arm of the electorate. An act

of the people’s elected representatives is thus an act of the people and is presumed

valid unless it conflicts with the Constitution.” Pope, 354 N.C. at 546, 556 S.E.2d at

267; see also State v. Strudwick, 379 N.C. 94, 105, 864 S.E.2d 231, 240 (2021) (“[W]e

presume that laws enacted by the General Assembly are constitutional.” (quoting

Grady, 372 N.C. at 521–22, 831 S.E.2d at 553)). “The Legislature alone may

determine the policy of the State, and its will is supreme, except where limited by

constitutional inhibition, which exception or limitation, when invoked, presents a

question of power for the courts to decide. But even then the courts do not undertake

to say what the law ought to be; they only declare what it is.” State v. Revis, 193 N.C.

192, 195 136 S.E. 346, 347 (1927) (citation omitted).

The presumption of constitutionality is a critical safeguard that preserves the

delicate balance between this Court’s role as the interpreter of our Constitution and

the legislature’s role as the voice through which the people exercise their ultimate

power. Id. (“To interpret, expound, or declare what the law is, or has been, and to

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adjudicate the rights of litigants, are judicial powers; to say what the law shall be is

legislative.”).

To that end, “we will not declare a law invalid unless we determine that it is

unconstitutional beyond a reasonable doubt.” Strudwick, 379 N.C. at 105, 864 S.E.2d

at 240 (quoting Grady, 372 N.C. at 522, 831 S.E.2d at 553). “In addressing the facial

validity of [a statute], our inquiry is guided by the rule that a facial challenge to a

legislative Act is, of course, the most difficult challenge to mount successfully.” State

v. Bryant, 359 N.C. 554, 564, 614 S.E.2d 479, 485 (2005) (cleaned up) (quoting United

States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987)). To succeed in this

endeavor, one who facially challenges an act of the General Assembly may not rely

on mere speculation. Rather, “[a]n individual challenging the facial constitutionality

of a legislative act must establish that no set of circumstances exists under which the

act would be valid.” Id. at 564, 614 S.E.2d at 486 (cleaned up).3

3 Our dissenting colleague expresses skepticism of this Court’s continued adherence to Salerno’s standard. However, the requirement that plaintiffs facially challenging a presumptively valid law carry this burden is far from “novel.” Only eighteen months ago, our dissenting friend wrote, with added emphasis: “After all, it has been long established by this Court that an individual challenging the facial constitutionality of a legislative act must establish that no set of circumstances exists under which the act would be valid.” State v. Strudwick, 379 N.C. 94, 108, 864 S.E.2d 231, 242 (2021) (quoting Salerno, 481 U.S. at 739, 107 S. Ct. at 2100). Contrary to our friend’s contention, our application of this standard to claims that a law was enacted with discriminatory intent is only “novel” in the sense that this Court has never before had the opportunity to address such a claim—the prior, withdrawn, and erroneous opinion in this matter notwithstanding. But, this Court’s application of Salerno’s standard to facial challenges has not been questioned, until now. See id.; State v. Grady, 372 N.C. 509, 547, 831 S.E.2d 542, 570 (2019) (quoting and applying Salerno’s standard); Kimberley Rice Kaestner 1992 Fam. Tr. v. N.C. Dep’t. of Revenue, 371 N.C. 133, 138, 814 S.E.2d 43, 47 (2018), aff’d sub nom. N.C. Dep’t of Revenue v. Kimberley Rice Kaestner 1992

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[W]e emphasize that “the role of the legislature is to balance the weight to be afforded to disparate interests and to forge a workable compromise among those interests. The role of the Court is not to sit as a super legislature and second-guess the balance struck by the elected officials.” Rather, this Court must “measure the balance struck by the legislature against the required minimum standards of the constitution.”

Id. at 565, 614 S.E.2d at 486 (quoting Harvey v. Edmisten, 315 N.C. 474, 491, 340

S.E.2d 720, 731 (1986)).

C. Equal Protection

The North Carolina Constitution, under which plaintiffs’ claim is brought,

provides in pertinent part that “[n]o person shall be denied the equal protection of

the laws; nor shall any person be subjected to discrimination by the State because of

race, color, religion, or national origin.” N.C. Const. art. I, § 19. In essence, “[e]qual

protection requires that all persons similarly situated be treated alike.” Blankenship

v. Bartlett, 363 N.C. 518, 521, 681 S.E.2d 759, 762 (2009) (quoting Richardson v. N.C.

Dep’t of Corr., 345 N.C. 128, 134, 478 S.E.2d 501, 505 (1996)).

This Court’s analysis of our Constitution’s Equal Protection Clause has

“generally follow[ed] the analysis of the Supreme Court of the United States in

interpreting the corresponding federal clause.”4 Id. at 522, 681 S.E.2d at 762. Both

Fam. Tr., 139 S. Ct. 2213 (2019) (same); Hart v. State, 368 N.C. 122, 131, 774 S.E.2d 281, 288 (2015) (same); Bryant, 359 N.C. at 564, 614 S.E.2d at 485 (same); State v. Thompson, 349 N.C. 482, 491, 508 S.E.2d 277, 281–82 (1998) (same). 4 The Fourteenth Amendment to the United States Constitution provides in pertinent

part that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The decisions of the Supreme Court of the United

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provisions guarantee equal treatment for individuals, not equality of outcome. See

Frank v. Walker, 768 F.3d 744, 754 (7th Cir. 2014). However, “in the construction of

[a] provision of the State Constitution, the meaning given by the Supreme Court of

the United States to even an identical term in the Constitution of the United States

is, though highly persuasive, not binding upon this Court.” Blankenship, 363 N.C. at

522, 681 S.E.2d at 762 (quoting Bulova, 285 N.C. at 474, 206 S.E.2d at 146).

State supreme courts are not bound by federal courts when interpreting their

state constitutions, and the parties here correctly concede that principles of

federalism do not require lock-stepping. See Jeffrey S. Sutton, 51 Imperfect Solutions,

States and the Making of American Constitutional Law, 16 (2018) (“Nothing compels

the state courts to imitate federal interpretations of the liberty and property

guarantees in the U.S. Constitution when it comes to the rights guarantees found in

their own constitutions . . . . Our federal system gives state courts the final say over

the meaning of their own constitutions.”).

Thus, it is the duty of the Supreme Court of North Carolina alone to declare

what the law is under our Constitution. See Bayard v Singleton, 1 N.C. 5 (1787). It

follows that when a party challenges a presumptively valid act of the General

Assembly under our Constitution’s Equal Protection Clause, as in this case, we are

in no sense bound to follow the analytical or evidentiary framework established by

States as to the construction and effect of . . . the Fourteenth Amendment to the Constitution of the United States are, of course, binding upon this Court.” Bulova Watch Co., Inc. v. Brand Distribs. of N. Wilkesboro, Inc., 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974).

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the Supreme Court of the United States or any other federal court for resolving equal

protection challenges under the federal Constitution.

Accordingly, pursuant to both the Fourteenth Amendment to the United States

Constitution and Article I, Section 19 of the North Carolina Constitution, we reaffirm

that “[a] statute, otherwise neutral on its face, must not be applied so as invidiously

to discriminate on the basis of race.” Washington v. Davis, 426 U.S. 229, 241, 96 S.

Ct. 2040, 2048 (1976). In addition, when a facially neutral statute is challenged, both

proof of “a racially discriminatory purpose,” id. at 239, 96 S. Ct. at 2047, and proof

that the law actually “produces disproportionate effects,” Hunter v. Underwood, 471

U.S. 222, 227, 105 S. Ct. 1916, 1920 (1985), are required to demonstrate the law’s

unconstitutionality. But a provision will not be declared unconstitutional “solely

because it has a racially disproportionate impact.” Davis, 426 U.S. at 239, 96 S. Ct.

at 2047.

“Whenever a challenger claims that a state law was enacted with

discriminatory intent, the burden of proof lies with the challenger, not the State.”

Abbott, 138 S. Ct. at 2324 (citing Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481,

117 S. Ct. 1491, 1499 (1997)). Where a law is facially neutral, as here, the challenger

faces an especially heavy burden of proving enactment of the law was motivated by

discriminatory intent.

To meet this burden under the federal analytical framework, plaintiffs “must

prove by a preponderance of the evidence that racial discrimination was a substantial

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or motivating factor” in the enactment of the challenged legislation. Hunter, 471 U.S.

at 225, 105 S. Ct. at 1918 (quoting Underwood v. Hunter, 730 F.2d 614, 617 (11th Cir.

1984)). In Arlington Heights, the Supreme Court of the United States established a

non-exhaustive list of evidentiary sources plaintiffs may use to establish

discriminatory intent under the federal Constitution. Vill. of Arlington Heights v.

Metro Hous. Dev. Corp., 429 U.S. 252, 97 S. Ct. 555 (1977). Whether the government

action “ ‘bears more heavily on one race than another’ may provide an important

starting point,” Id. at 266, 97 S. Ct. at 564 (quoting Davis, 426 U.S. at 242, 96 S. Ct.

at 2049), however, “official action will not be held unconstitutional solely because it

results in a racially disproportionate impact.” Id. at 264–65, 97 S. Ct. at 563. Thus,

Arlington Heights commands federal courts to also consider “[t]he historical

background of the decision,” the “specific sequence of events leading up to the

challenged decision,” and the challenged action’s “legislative or administrative

history.” Id. at 267–68, 97 S. Ct. at 564–65.

However, plaintiffs’ claim in the instant suit is brought pursuant to Article I,

Section 19 of the North Carolina Constitution, not the Fourteenth Amendment of the

United States Constitution. Specifically, plaintiffs argue that application of the

Arlington Heights test produces an inference of discriminatory intent in the passage

of S.B. 824 such that, even though the law is facially neutral, the law violates the

Equal Protection Clause found in our state Constitution. But, plaintiffs’ challenge,

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whether analyzed under Arlington Heights or under our traditional standard, must

fail.

The result below, which endorsed plaintiffs’ argument, is not only contrary to

the result reached by the Fourth Circuit in Raymond, the federal corollary to this suit

which held S.B. 824 does not contravene the Fourteenth Amendment, but also “would

have the potential to invalidate just about any voting rule a State adopts.” Brnovich,

141 S. Ct. at 2343. To utilize such a subjective test “would tie the hands of States

seeking to assure that elections are operated equitably and efficiently.” Burdick, 504

U.S. at 433, 112 S. Ct. at 2063.

Constitutional deference and the presumption of legislative good faith caution

against casting aside legislative policy objectives on the basis of evidence that could

be fairly interpreted to demonstrate that a law was enacted in spite of, rather than

because of, any alleged racially disproportionate impact. To that end, a challenge to

a presumptively valid and facially neutral act of the legislature under Article I,

Section 19 of the North Carolina Constitution cannot succeed if it is supported by

speculation and innuendo alone.

It is well settled that this Court has required plaintiffs to produce proof beyond

a reasonable doubt to invalidate a legislative action as violative of our state’s

Constitution. See Strudwick, 379 N.C. at 105, 864 S.E.2d at 240 (“[W]e will not

declare a law invalid unless we determine that it is unconstitutional beyond a

reasonable doubt.” (quoting Grady, 372 N.C. at 522, 831 S.E.2d at 553)); Hart v. State,

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368 N.C. 122, 126, 774 S.E.2d 281, 284 (2015) (“Stated differently, a law will be

declared invalid only if its unconstitutionality is demonstrated beyond a reasonable

doubt.”); Baker v. Martin, 330 N.C. 331, 334, 410 S.E.2d 887, 888 (1991) (“[E]very

presumption favors the validity of a statute. It will not be declared invalid unless its

unconstitutionality be determined beyond reasonable doubt.” (quoting Gardner v.

Reidsville, 269 N.C. 581, 595, 153 S.E.2d 139, 150 (1967))).

With the ability to declare a legislative act unconstitutional, courts wield a

“delicate, not to say dangerous” power which is “antagonistic to the fundamental

principles of our government.” State v. White, 125 N.C. 674, 688, 34 S.E. 532, 536

(1899) (Clark, J., dissenting). The power to invalidate legislative acts is one that

must be exercised by this Court with the utmost restraint, and the proof beyond a

reasonable doubt standard is a necessary protection against abuse of such power by

unprincipled or undisciplined judges.

This is not a novel or unique approach, as federal courts have acknowledged

that overturning state legislative acts requires a challenger to meet a heightened

burden. See Plain Loc. Sch. Dist. Bd. of Educ. v. DeWine, 486 F. Supp. 3d 1173, 1198

(S.D. Ohio 2020) (“[T]he ‘party challenging the constitutionality of a statute bears the

burden of proving that it is unconstitutional beyond a reasonable doubt.’ ” (quoting

Cleveland v. State, 989 N.E.2d 1072, 1078 (Ohio Ct. App. 2013))); Huffman v.

Brunsman, 650 F. Supp. 2d 725, 742 (S.D. Ohio 2008) (“[A] person challenging a

statute must prove that the statute is unconstitutional beyond a reasonable doubt.”

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(citing State v. Anderson, 57 Ohio St. 3d 168, 171, 566 N.E.2d 1224, 1226 (1991)));

Coal. for Equal Rights, Inc. v. Owens, 458 F. Supp. 2d 1251, 1258 (D. Colo. 2006)

(“Challengers to a state law ‘bear the burden of proving it unconstitutional beyond a

reasonable doubt.’ ” (quoting Mosgrove v. Town of Federal Heights, 191 Colo. 1, 4, 543

P.2d 715, 717 (1975))).

Even in the context of “determining the federal constitutionality” of a state law

challenged under Arlington Heights, federal courts should “begin[ ] with the

presumption of constitutionality,” should require the challengers to “demonstrate

that the Act is unconstitutional beyond a reasonable doubt,” and “must accept” the

state’s “plausible construction of the Act [if] that would result in a finding of

constitutionality.” Villanueva v. Carere, 873 F.Supp. 434, 447 (D. Colo. 1994), aff’d,

85 F.3d 481 (10th Cir. 1996).

Therefore, we hold that to prevail on such a facial challenge to a state statute

under this state’s traditional analytical framework, the challenger must prove beyond

a reasonable doubt that: (1) the law was enacted with discriminatory intent on the

part of the legislature, and (2) the law actually produces a meaningful disparate

impact along racial lines.

We reach this determination not out of disagreement with the federal courts’

analysis of these issues under the federal Equal Protection Clause. Rather, we reach

this decision because Arlington Heights’ analytical framework is incompatible with

our state Constitution and this Court’s precedent as it allows challengers to succeed

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on such claims by proffering evidence that is by its very nature speculative,

subjective, and thus, insufficient to meet the well-established burden of proof. The

differing outcomes reached by the Fourth Circuit in Raymond and the trial court

below highlight the subjective nature of the Arlington Heights test. The fact that

different results can be reached using the Arlington Heights test suggests that

personal biases and subjective interpretations concerning presumptively valid

legislative acts can greatly influence outcomes in these types of cases. It is the

objective application of legal principles that leads to consistent and fair judicial

decisions. There, the Arlington Heights framework falls short.5

D. Federal Precedent

With this in mind, we now turn our attention to the trial court’s order

permanently enjoining S.B. 824. Because the trial court below relied heavily on N.C.

State Conf. of the NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016), it is appropriate

to provide a brief review of that case. In addition, a proper review of the trial court’s

order requires a thorough analysis of Abbott v. Perez, 138 S. Ct. 2305 (2018) and

Raymond, 981 F.3d 295.

5 Our holding does not mean that the Arlington Heights test will not be appropriate in other circumstances in which the beyond a reasonable doubt standard does not apply. For example, it may remain a sound analytical framework for challenges to zoning or executive agency regulatory actions, which are the types of official action the test was designed to address. See Arlington Heights, 429 U.S. at 254, 97 S. Ct. at 558 (“[Plaintiffs] alleged that the denial [of a rezoning request] was racially discriminatory . . . .”). However, in the context of invalidating presumptively constitutional legislative action, our precedent is clear, and Arlington Heights is contrary to the overwhelming weight of authority in North Carolina.

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1. North Carolina State Conference of the NAACP v. McCrory

In McCrory, the plaintiffs challenged various voting provisions contained in

H.B. 589, a 2013 omnibus bill enacted by the North Carolina General Assembly that

included voter identification provisions, arguing the law had been enacted with

discriminatory intent. McCrory, 831 F.3d at 218.

The 2013 provision was enacted shortly after the Supreme Court of the United

States “invalidated the preclearance coverage formula,” a federal statutory

mechanism that required North Carolina, and other states with histories of racially

motivated voter suppression laws, to seek preclearance with the United States

Department of Justice before enacting new voting laws. Id. at 216 (citing Shelby

County v. Holder, 570 U.S. 529, 557, 133 S. Ct. 2612, 2631 (2013)). At the conclusion

of trial, the district court found that the 2013 law was not enacted with discriminatory

intent and entered judgment against the plaintiffs on all of their claims. Id. at 219.

On appeal, the Fourth Circuit noted that the “ultimate question” was whether

“the legislature enact[ed] a law ‘because of,’ and not ‘in spite of,’ its discriminatory

effect.” Id. at 220. In concluding that the 2013 law was enacted because of its

discriminatory effect, i.e., with discriminatory intent, the Fourth Circuit determined

that the “undisputed” facts regarding the “sequence of events leading up to the

challenged decision” were “devastating.” Id. at 227 (quoting Arlington Heights, 429

U.S. at 267, 97 S. Ct. at 564).

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The Fourth Circuit noted that the legislature utilized various racial data in

enacting portions of the law, including the photo identification provisions. Id. at 216–

18. According to the Fourth Circuit, “relying on this racial data, the General

Assembly enacted legislation restricting all—and only—practices disproportionately

used by African Americans.” Id. at 230. The Fourth Circuit determined that “[t]he

district court erred in refusing to draw the obvious inference that this sequence of

events signals discriminatory intent.” Id. at 227. The Fourth Circuit concluded that,

“at least in part, discriminatory racial intent motivated the enactment of” the 2013

law. Id. at 233. Because the plaintiffs carried their burden of establishing

discriminatory intent, and because the State had failed to show that the challenged

provisions would have been enacted without discriminatory intent, the Fourth Circuit

reversed the district court’s judgment and remanded the case “for entry of an order

enjoining the implementation” of the challenged voting provisions of the 2013

omnibus law. Id. at 242.

2. Abbott v. Perez

Thereafter, the Supreme Court of the United States provided clarification to

discriminatory intent analysis that is especially relevant here. In Abbott, the Court

emphasized that “the ‘good faith of [the] legislature must be presumed’ ” regardless

of a prior finding of discriminatory intent. 138 S. Ct. at 2324 (alteration in original)

(quoting Miller v. Johnson, 515 U.S. 900, 915, 115 S. Ct. 2475, 2488 (1995)). There,

the Court reversed the decision of a three-judge panel of the Western District of Texas

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because that panel imputed past discriminatory intent to the then-sitting legislature

and thereby failed to presume good faith. Id. at 2335. The Court stated that:

The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination. Past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. The historical background of a legislative enactment is one evidentiary source relevant to the question of intent. But we have never suggested that past discrimination flips the evidentiary burden on its head.

Id. at 2324–25 (cleaned up).

The Court in Abbott noted that the lower court “referred repeatedly to the 2013

Legislature’s duty to expiate its predecessor’s bad intent” and concluded that the

“Texas court’s references to the need to ‘cure’ the earlier Legislature’s ‘taint’ cannot

be dismissed as stray comments.” Id. at 2325. Importantly, although the Court

stated that “a [trial] court’s finding of fact on the question of discriminatory intent is

reviewed for clear error,” it nonetheless reversed the panel because “when a finding

of fact is based on the application of an incorrect burden of proof, the finding cannot

stand.” Id. at 2326.

Thus, the presumption of legislative good faith is only overcome when a

plaintiff meets his or her burden of proving that the legislature responsible for

enacting the challenged law acted with discriminatory intent in the present case.

Past discrimination may be a relevant factor under an Arlington Heights analysis,

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but it is error to treat subsequent legislative acts as fruit of the poisonous tree such

that subsequent similar legislation is per se verboten.6

In addition, Abbott clearly emphasized that a trial court errs when it makes

findings of fact utilizing the incorrect burden of proof, and any findings which result

therefrom are not binding on a reviewing court. See id. at 2326 (holding that “when

a finding of fact is based on the application of an incorrect burden of proof, the finding

cannot stand”); see also State v. Otto, 366 N.C. 134, 136, 726 S.E.2d 824, 827 (2012)

(holding that when “evidence does not support the trial court’s finding . . . [that]

finding of fact is not binding on this Court”).

6 “The world moves, and we must move with it.” State v. Williams, 146 N.C. 618, 639, 61 S.E. 61, 68 (1908) (Clark, C.J., dissenting). Indeed, many of the historical facts referenced by the trial court and in plaintiffs’ brief “hav[e] no logical relation to the present day.” Shelby Cnty. v. Holder, 570 U.S. 529, 554, 133 S. Ct. 2612, 2629 (2013). The Lieutenant Governor, two members of this Court, and the minority leaders in the North Carolina Senate and the North Carolina House of Representatives are the most recent examples of the significant social progress made in North Carolina. North Carolina’s population has changed dramatically. North Carolina ranked 9th in population growth by percentage between 2021 and 2022; representing the third largest addition to population out of all 50 states. Michael Cline, North Carolina Population Growth Bouncing Back, Off. of State Budget & Man., (Dec. 22, 2022), https://www.osbm.nc.gov/blog/2022/12/22/north-carolina-population-growth- bouncing-back. While discrimination based on race is a historical reality, to imply that S.B. 824 is a product or derivative of that history is to imply that the people of North Carolina have failed to change. Such an implication is fundamentally at odds with the modern reality of our State. The imputation of wrongs committed in the distant past to current realities is not only unjust and disingenuous, but it also presents an insurmountable hurdle to future progress.

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3. Federal Review of S.B. 824

The federal corollary to the present appeal is found in N.C. State Conf. of the

NAACP v. Raymond, 981 F.3d 295 (4th Cir. 2020). There, the plaintiffs challenged

S.B. 824 under the federal Equal Protection Clause, alleging that the law had been

enacted with discriminatory intent. Id. at 301. The plaintiffs moved to enjoin

enforcement of the law, and the district court granted the injunction after concluding

that the plaintiffs were likely to succeed on their constitutional claims. Id.

On appeal, the Fourth Circuit sharply criticized the district court and reversed

“because of the fundamental legal errors that permeate the [district court’s] opinion.”

Id. at 310–11. Principal among these fundamental errors was that the district court,

contrary to the Supreme Court’s explicit holding in Abbott, focused on the past finding

of discriminatory intent in McCrory as evidence of discriminatory intent in the

passage of S.B. 824. Id. Thus, the district court improperly “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.” Id. at 303. The Fourth

Circuit stated:

[t]he district court here made the same mistake as the panel in Abbott without even trying to distinguish the Supreme Court’s holding. . . . [T]he district court noted that the General Assembly did not try to cleanse the discriminatory taint, or tak[e] steps to purge the taint of discriminatory intent. . . .

The district court penalized the General Assembly because of who they were, instead of what they did. When discussing the sequence of events leading to the 2018

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Voter-ID Law’s enactment, the district court discounted the normalcy of the legislative process to focus on who drafted and passed the law.

Id. at 304 (cleaned up).

The Fourth Circuit explicitly disavowed the district court’s inappropriate focus

on who passed S.B. 824:

The question of who reared its head again in the court’s discussion of the 2018 Voter-ID Law’s legislative history. In that section, the district court emphasized that the General Assembly’s positions had “remained virtually unchanged” between McCrory and the enactment of the 2018 Voter-ID law. And the court assumed that the racial data remained in the minds of the legislators: “[T]hey need not have had racial data in hand to still have it in mind.” By focusing on who passed the 2018 Voter-ID Law and requiring the General Assembly to purge the taint of the prior law, the district court flipped the burden and disregarded Abbott’s presumption.

Id. at 304–05 (alteration in original) (quoting NAACP v. Cooper, 430 F. Supp. 3d at

33–35).

The district court’s analytical reliance on who passed S.B. 824 “also overlooked

the state constitutional amendment” by which “[f]ifty-five percent of North

Carolinian voters constitutionally required the enactment of a voter-ID law and

designated to the General Assembly the task of enacting the law.” Id. at 305 (citing

N.C. Const. art. VI, § 2(4)). Because the amendment “served as an independent

intervening event between the General Assembly’s passage of the 2013 Omnibus Law

and its enactment of the 2018 Voter-ID Law,” Article VI, Section 2(4) of the North

Carolina Constitution “undercut[ ] the district court’s tenuous ‘who’ argument.” Id.

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The Fourth Circuit determined that “[o]nce the proper burden and the

presumption of good faith are applied, the Challengers fail to meet their burden of

showing that the General Assembly acted with discriminatory intent in passing the

2018 Voter-ID Law.” Id. In reaching this conclusion, the Fourth Circuit clarified that

although “North Carolina’s historical background,” including the 2013 omnibus law,

“favors finding discriminatory intent, the facts considered under the remaining

Arlington Heights factors—the sequence of events leading to enactment, legislative

history, and disparate impact—cannot support finding discriminatory intent.” Id.

(cleaned up).

First, the Fourth Circuit analyzed “the sequence of events leading to the

enactment of the 2018 Voter-ID Law.” Id. Noting that S.B. 824 “underwent five days

of legislative debate,” “was permitted time for public comment,” and “enjoyed

bipartisan support,” the Fourth Circuit determined that “the enactment was not the

‘abrupt’ or ‘hurried’ process that characterized the passage of the 2013 Omnibus

Law.” Id. at 305–06 (citing McCrory, 831 F.3d at 228–29).

Next, the Fourth Circuit analyzed “the 2018 Voter-ID Law’s legislative

history,” which the district court found “supported finding discriminatory intent”

because “Republican legislative leaders strongly opposed McCrory, remained

committed to passing a voter-ID law that would withstand future court challenges,

and did not change their positions, goals, or motivations between the passage of the

2013 Omnibus Law and the 2018 Voter-ID Law.” Id. at 307. The Fourth Circuit

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specifically denounced the district court’s reasoning because its findings

“impermissibly stemmed from the comments of a few individual legislators and relied

too heavily on comments made by the bill’s opponents.” Id. (cleaned up).

The Fourth Circuit also stated that the district court’s reasoning “go[es]

against inferring ‘good faith’ on the part of the legislature, which we are required to

do: decrying a court opinion holding that you acted improperly in the past is not

evidence that you have acted improperly again.” Id. Noting that “[n]othing here

suggests that the General Assembly used racial voting data to disproportionately

target minority voters ‘with surgical precision,’ ” the Fourth Circuit concluded that

S.B. 824’s legislative history did not evidence discriminatory intent. Id. at 308–09

(quoting McCrory, 831 F.3d at 214).

Finally, the Fourth Circuit analyzed “the racial impact of the 2018 Voter-ID

Law.” Id. at 309. While the Fourth Circuit “accept[ed] the district court’s finding

that minority voters disproportionately lack the types of ID required” by S.B. 824, it

found significant that the law “contains three provisions that go ‘out of [their] way to

make its impact as burden-free as possible.’ ” Id. (second alteration in original)

(quoting Lee v. Va. State Bd. of Elections, 843 F.3d 592, 603 (4th Cir. 2016)).

First, the law provides for registered voters to receive free voter-ID cards without the need for corroborating documentation. Second, registered voters who arrive to the polls without a qualifying ID may fill out a provisional ballot and their votes will be counted if they later produce a qualifying ID at the county elections board. Third, people with religious objections, survivors of recent natural disasters, and those with reasonable impediments may

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cast a provisional ballot after completing an affidavit that affirms their identity and their reason for not producing an ID. Their votes must be counted unless the county board of elections has grounds to believe the affidavit is false.

Id. (cleaned up).

The Fourth Circuit noted that, because of these various mitigating provisions,

“the 2018 Voter-ID law is more protective of the right to vote than other states’ voter-

ID laws that courts have approved.” Id. at 310.

In Lee v. Virginia State Board of Elections, we upheld Virginia’s voter-ID law that only included two of these mitigating features—free voter IDs available without corroborating documentation and provisional voting subjected to ‘cure.’ Likewise, in South Carolina v. United States, the District Court of the District of Columbia precleared South Carolina’s voter-ID law that included a different combination of two mitigating features—free voter IDs available without corroborating documentation and a reasonable impediment procedure. And recently, the Eleventh Circuit, in Greater Birmingham Ministries v. Secretary of State for the State of Alabama, upheld Alabama’s Voter-ID law that included . . . mitigating features—free voter IDs that require corroborating documentation and provisional voting subject to ‘cure.’ Given these cases, it is hard to say that the 2018 Voter-ID Law does not sufficiently go out of its way to make its impact as burden-free as possible.

Because of these mitigating provisions, the Fourth Circuit determined that any

potential disparate impact of S.B. 824 did not evidence any discriminatory intent by

the General Assembly. Id. The Fourth Circuit reversed the district court, but not

because “[the district court] weighed the evidence before it differently than [the

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Fourth Circuit] would.” Id. Rather, the Fourth Circuit reversed the district court’s

grant of a preliminary injunction “because of the fundamental legal errors that

permeate the opinion—the flipping of the burden of proof and the failure to provide

the presumption of legislative good faith—that irrevocably affected its outcome.” Id.

at 310–11. The district court “abused its discretion” because “it considered the North

Carolina General Assembly’s past conduct to bear so heavily on its later acts that it

was virtually impossible for it to pass a voter-ID law that meets constitutional

muster.” Id. at 311.

E. Review of the Panel Below

1. Under the Federal Framework

Although Raymond was decided under the federal Equal Protection Clause, we

are confronted in the present appeal with a similar question under the North

Carolina Constitution. When properly analyzed under Arlington Heights, plaintiffs’

claim here, as in Raymond, must fail because the same fundamental legal errors that

permeated the district court’s decision in Raymond pervade the trial court’s order

below.

A majority of the three-judge panel below made findings of fact based upon

historical evidence that, while perhaps useful in a policy setting, has little bearing

upon the constitutionality of S.B. 824 in light of Abbott. As the dissent below noted,

to “place outsized weight on the increasingly distant past would constitute a failure

by the judiciary to allow our [s]tate to fully progress from that shameful past. Any

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overreliance on our [s]tate’s history is therefore misplaced.” The trial court’s findings

demonstrate exactly this sort of overreliance on historical evidence, and these

findings “were not merely ‘stray comments. On the contrary, they were central to the

court’s analysis,’ for they made explicit the burden-shifting that the court engaged in

while assessing the Arlington Heights factors.” Raymond, 981 F.3d at 304 (quoting

Abbott, 138 S. Ct. at 2325).

The trial court’s finding that “recent cases,” including McCrory, “show that race

is still a dominant consideration for the North Carolina General Assembly” is

illustrative. As the Supreme Court of the United States has made abundantly clear,

“[t]he allocation of the burden of proof and the presumption of legislative good faith

are not changed by a finding of past discrimination.” Abbott, 138 S. Ct. at 2324. “Past

discrimination cannot, in the manner of original sin, condemn governmental action

that is not itself unlawful.” Id. (cleaned up). The trial court’s attribution of past sins

to the passage of S.B. 824 is plainly contrary to Abbott.

In addition, the trial court’s finding that “[j]ust as with other states in the

South, North Carolina has a long history of race discrimination generally and race-

based voter suppression in particular,” was a quotation of a Court of Appeals’

quotation from McCrory, not a finding premised upon any evidence in this particular

case. See Holmes v. Moore, 270 N.C. App. 7, 20–21, 840 S.E.2d 242, 257 (2020);

McCrory, 831 F.3d at 223. Again, the trial court’s use of historical information to

strike down an otherwise lawful act is exactly what Abbott cautioned against.

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Further, the trial court made specific findings of fact regarding statements

made in the wake of McCrory, evidently considering that statements criticizing that

decision and vowing to “continue the fight” for a voter identification law supported a

finding that S.B. 824 was enacted with discriminatory intent. Once again, this

finding is contrary to directly on-point federal precedent. In Raymond, “the district

court noted that Republican legislative leaders strongly opposed McCrory, [and]

remained committed to passing a voter-ID law that would withstand future court

challenges.” Raymond, 981 F.3d at 307. The Fourth Circuit refused to sanction these

findings because they “[went] against inferring ‘good faith’ on the part of the

legislature, which we are required to do: decrying a court opinion holding that you

acted improperly in the past is not evidence that you have acted improperly again.”

Id. (citing Abbott, 138 S. Ct. at 2324, 2327).

Also, the trial court found that both the passage of the constitutional

amendment which required enactment of S.B. 824 and the enactment of S.B. 824

itself departed from normal legislative procedures, and the trial court evidently relied

on this finding when determining that “[t]he [l]egislative [h]istory of S.B. 824 [r]aises

[a]dditional [r]ed [f]lags.” The trial court “found” that “[t]here is no reason why the

General Assembly could not have followed normal procedures, passed implementing

legislation to accompany the proposed constitutional amendment, and submitted that

proposed legislation to the People of North Carolina for their approval.” The trial

court’s findings on this issue, however, are contrary to both federal precedent, North

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Carolina precedent, and the historical role of the judiciary in not second-guessing the

contours of the legislative process.

The Supreme Court of the United States has stated “we do not see how the

brevity of the legislative process can give rise to an inference of bad faith—and

certainly not an inference that is strong enough to overcome the presumption of

legislative good faith.” Abbott, 128 S. Ct. at 2328–29. This Court has stated “the role

of the Court is not to sit as a super legislature and second-guess the balance struck

by the elected officials.” Bryant, 359 N.C. at 565, 614 S.E.2d at 485 (quoting Harvey,

315 N.C. at 491, 340 S.E.2d at 731). Moreover, and perhaps most importantly, the

North Carolina Constitution contains an explicit separation of powers provision, see

N.C. Const. art. I, § 6, which is violated “when one branch exercises power that the

constitution vests exclusively in another branch” or “when the actions of one branch

prevent another branch from performing its constitutional duties.” State v. Berger,

368 N.C. 633, 645, 781 S.E.2d 248, 256 (2016).

There is no law in this state that implies the General Assembly possesses

anything less than its full constitutional authority when conducting legislative

business in a special session. Despite this, the trial court’s order indicates that the

panel below sees itself as possessing the power to second-guess the legislature’s

authority over its own procedures, thereby “prevent[ing] another branch from

performing its constitutional dut[y].” Id. It bears repeating that “[t]o interpret,

expound, or declare what the law is, or has been, and to adjudicate the rights of

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litigants, are judicial powers; to say what the law shall be is legislative.” Revis, 193

N.C. 192, 136 S.E. at 347.

One of the many governmental functions the constitution vests exclusively in

the legislature is the balancing of policy interests involved when drafting, amending,

and enacting laws. During this process for S.B. 824, the General Assembly accepted

amendments proposed by Democrat members, and multiple Democrat members

thanked and praised their Republican colleagues for the bipartisan and collaborative

manner in which the law was passed. Democrats thanked the Republican members

“for being open and inclu[sive] in listening to us on the other side of the aisle in trying

to come up with something that is reasonable,” “for the hard work that you have done

in negotiating and accepting many of the amendments that have been placed before

you,” and for doing “a really terrific job working with us to help improve the bill,

[which] is a much better bill than the bill that left this chamber in 2013.”7

7 “One might question the relevance of bipartisanship in a discriminatory-intent analysis,” Raymond, 981 F.3d at 306, n.3, because “partisan motives are not the same as racial motives.” Brnovich, 141 S. Ct. at 2349. This is why, even under Arlington Heights, a court is required to “assess whether the plaintiffs have managed to disentangle race from politics and prove that the former drove” a law’s enactment. Cooper v. Harris, 581 U.S. 285, 308, 137 S. Ct. 1455, 1473 (2017) (citation omitted). Under our standard, this means that plaintiffs must prove beyond a reasonable doubt that racial, rather than political, considerations motivated the passage of a law they claim was enacted with discriminatory intent. For plaintiffs here, that requirement is at odds with their theory of the case, which inextricably “[ ]entangle[s] race [and] politics[.]” Id. Article I, Section 19 prohibits discrimination based on race; political parties are not protected classes, and barring proof that racial animus, rather than political considerations, led to the passage of a particular measure, we find it difficult to imagine a scenario in which partisan interests would constitute sufficient evidence that a law was enacted with discriminatory intent.

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Despite this, the trial court went on to enter speculative findings of fact

regarding additional measures the legislature could have taken, such as adopting

more of the amendments proposed by Democrat members of both chambers.

According to the trial court, the legislature’s failure to take these additional steps,

despite the obviously bipartisan nature of the law’s enactment, led to the trial court’s

finding of fact heading that “The Design of S.B. 824 Does Not Evince an Intent by the

General Assembly to Cure Racial Disparities Observed Under H.B. 589.”

Under this heading, the trial court found “that [d]efendants have not rebutted

[p]laintiffs’ assertion that the General Assembly did not consider any updated racial

demographic data prior to the enactment of S.B. 824.” Moreover, the trial court found

that “[t]he categories of ID added to the list of acceptable ID were arbitrary, and

[l]egislative [d]efendants have offered no evidence to show that inclusion of these

ID[s] would make a difference to overcome the already existing deficiency.”

Presumably, this “already existing deficiency” was the prior outcome in McCrory,

which clearly demonstrates that the General Assembly was not afforded the

presumption of legislative good faith, rather, its decisions were criticized by the lower

court for “demonstrating . . . lack of reasoning or logic.”

Putting aside for a moment the glaringly obvious conflict with Raymond and

Abbott, this heading itself indicates that the trial court fundamentally misunderstood

the applicable legal framework, plaintiffs’ burden, and its own task. Even presuming

the findings underpinning this heading are supported by competent evidence, they at

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most support a conclusion that the legislature failed to do everything possible to

ameliorate any alleged disparate impact. They do not support a conclusion that the

legislature acted with discriminatory intent and actively designed a bill to cause the

alleged disparate impact.

That reasonable minds may differ as to whether the legislature endeavored to

pass the least restrictive voter identification law possible does not equate to a

showing that the legislature endeavored to pass a voter identification law designed

to disparately impact black North Carolinians. Plaintiffs’ burden is not to

demonstrate beyond a reasonable doubt that a hypothetical alternative law may have

been less restrictive; it is to demonstrate beyond a reasonable doubt that this law was

designed to discriminate on the basis of race. The evidence in the record cannot

support such a contention because the hypothetical existence of a less restrictive

alternative does not satisfy plaintiffs’ burden. If that were so, no law could ever

stand.

Hereto, the trial court’s findings directly conflict with precedent of the

Supreme Court of the United States which could not be clearer:

The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination. Past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. The historical background of a legislative enactment is one evidentiary source relevant to the question of intent. But we have never suggested that past discrimination flips the evidentiary burden on its head.

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Abbott, 138 S. Ct. at 2324–25 (cleaned up) (emphases added).

The panel below “made the same mistake as the panel in Abbott without even

trying to distinguish the Supreme Court’s holding.” Raymond, 981 F.3d at 304. The

trial court inexplicably ignored Abbott and Raymond, and this serious and egregious

error undermines the integrity of the trial court’s decision and its decision-making

process. The improper reliance on speculative historical evidence and failure to

analyze Abbott made it “virtually impossible for [the legislature] to pass a voter-ID

law that meets constitutional muster.” Id. at 311.

“When evaluating a neutral, nondiscriminatory regulation of voting procedure,

we must keep in mind that a ruling of unconstitutionality frustrates the intent of the

elected representatives of the people.” Crawford v. Marion Cnty. Election Bd., 553

U.S. 181, 203, 128 S. Ct. 1610, 1623 (2008) (cleaned up). It is not the role of this Court

to endorse an analytical approach that would effectively enjoin all future legislatures

from effectuating the will of the people. This is why Abbott and Raymond are so

critical to a proper analysis.

As the Supreme Court of the United States has noted, “a finding of fact . . .

based on the application of an incorrect burden of proof . . . cannot stand.” Abbott,

138 S. Ct. at 2326. Here, the trial court’s findings of fact flow from impermissibly

assigning the burden to the General Assembly and failing to presume legislative good

faith.

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The trial court’s order is riddled with both explicit and implicit instances

demonstrating that, as here, it erroneously placed the burden on the General

Assembly to overcome a presumption of legislative bad faith. As in Abbott, these

findings cannot stand, and the trial court’s legal conclusions are left unsupported.

Thus, the “fundamental legal errors that permeate the [lower panel’s opinion]—the

flipping of the burden of proof and the failure to provide the presumption of legislative

good faith” have “irrevocably affected [the] outcome [of this case],” Raymond, 981 F.3d

at 310–11, and we hold that even under Arlington Heights, the trial court’s finding of

discriminatory intent was erroneous.

2. Under North Carolina Law

However, as previously noted, Arlington Heights is not the standard plaintiffs

challenging a presumptively valid legislative act are required to meet in this state.

See Strudwick, 379 N.C. at 105, 864 S.E.2d at 240 (“[W]e will not declare a law invalid

unless we determine that it is unconstitutional beyond a reasonable doubt.” (quoting

Grady, 372 N.C. at 522, 831 S.E.2d at 553)). Where a trial court applies the incorrect

legal standard, regardless of whether the parties consent to that incorrect standard,

the trial court per se abuses its discretion. See Da Silva v. WakeMed, 375 N.C. 1, 5

n.2, 846 S.E.2d 634, 638 n.2 (2020) (“[A]n error of law is an abuse of discretion.”).

In addition, just as the Supreme Court of the United States has held that “a

finding of fact . . . based on the application of an incorrect burden of proof . . . cannot

stand,” Abbott, 138 S. Ct. at 2326, this Court has held that “facts found under

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misapprehension of the law are not binding on this Court and will be set aside.” Van

Hanford v. McSwain, 230 N.C. 229, 233, 53 S.E.2d 84, 87 (1949). Because the trial

court’s findings of fact below were found under a misapprehension of law, i.e., under

the incorrect legal standard, without requiring plaintiffs to carry their burden of

demonstrating the unconstitutionality of S.B. 824 beyond a reasonable doubt, these

findings cannot stand. Without them, the trial court’s conclusions of law are wholly

unsupported and the order below must be reversed.

The general procedure for disposing of a matter where the trial court’s “facts

found under misapprehension of the law are . . . set aside,” would be to remand the

case “to the end that the evidence should be considered in its true legal light.” Id.

However, such a procedure is inappropriate in matters such as this, where the

evidence in the record is wholly insufficient to prove beyond a reasonable doubt that

S.B. 824: (1) was enacted with discriminatory intent, and (2) produces a meaningful

disparate impact. See Snuggs v. Stanly Cnty. Dep’t of Pub. Health, 310 N.C. 739, 741,

314 S.E.2d 528, 529 (1984) (remanding to the trial court for entry of an order of

dismissal); Hunt ex rel. Hasty v. N.C. Dep’t of Lab., 348 N.C. 192, 199, 499 S.E.2d 747,

751 (1998) (same). Here, plaintiffs have produced insufficient evidence to meet their

burden.

To succeed in their claim, plaintiffs must demonstrate not only discriminatory

intent, but must also demonstrate that the challenged law actually “produces

disproportionate effects along racial lines.” Hunter, 471 U.S. at 227, 105 S. Ct. at

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1920; see also Irby v. Va. State Bd. of Elections, 889 F.2d 1352, 1355 (4th Cir. 1989)

(“To establish an equal protection violation, a plaintiff must show discriminatory

intent as well as disparate effect.” (emphasis added)). On this point, plaintiffs’

evidence consists of incompetent expert testimony and unfounded speculation upon

which the trial court found that “S.B. 824 would bear more heavily on African

American voters, if permitted to go into effect” because: (1) black voters are more

likely to lack qualifying ID; (2) the burdens of obtaining qualifying IDs, including free

IDs, fall more heavily on black voters; and (3) black voters may be more likely to

encounter problems navigating the reasonable impediment process.

Regarding the disparate lack of qualifying identifications, plaintiffs’ expert

failed to consider multiple types of qualifying identifications, the reasonable

impediment provision, and the availability of free identifications under S.B. 824.

Plaintiffs’ expert simply produced a mathematical analysis based on DMV records

that showed 7.61% of black voters and 5.47% of white voters lacked some of the

qualifying IDs under S.B. 824. Such an incomplete consideration of the various forms

of qualifying identification under S.B. 824 renders this expert’s evidence fatally

deficient and incapable of supporting a finding that black voters are more likely to

lack the qualifying identifications permitted under S.B. 824.

Furthermore, the trial court’s finding that black voters are “39% more likely to

lack a form of qualifying ID” than white voters is exactly the kind of “highly

misleading” statistical transformation the Supreme Court of the United States has

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expressly disavowed. Brnovich, 141 S. Ct. at 2345. This kind of manipulation of

mathematical concepts is used to turn a difference “small in absolute terms,” here,

2.14%, into “a distorted picture . . . by dividing one percentage by another,” id. at

2344–45, and such evidence is insufficient to support a finding that black voters are

more likely to lack qualifying identification under S.B. 824.

Similarly, plaintiffs’ evidence that the burdens of obtaining qualifying

identification, including free identification, fall more heavily on black voters is

entirely speculative. Plaintiffs’ expert essentially suggests that because “a [b]lack

person is 2.5 times more likely to live in poverty as compared to a white person,” it

must logically follow that black voters would disproportionately suffer a legally

significant burden in obtaining a qualifying identification, even if that identification

is free. This is merely speculative forecasting and simply ignores the reality that

compliance with any government licensing or registration requirement requires effort

on the part of citizens. “[M]inor inconvenience[s] . . . do[ ] not impose a substantial

burden.” Lee v. Va. State Bd. of Elections, 843 F.3d 592, 600 (4th Cir. 2016). Plaintiffs

cannot prove such a crucial aspect of their claim by relying on speculation; they must

provide sufficient evidence demonstrating that S.B. 824 actually produces disparate

impact in reality, not hypothetical circumstances.8

8 Further, the panel’s assumption that black voters may have difficulty acquiring free identification due to lack of transportation or disabilities is legally suspect because the reasonable impediment provision in S.B. 824 allows individuals to vote without an identification if their inability to obtain an identification is due to, among other things, a “[l]ack of transportation” or “[d]isability or illness.” N.C.G.S. § 163.166.16(e)(1)(a)–(b).

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The trial court’s finding that black voters may be more likely to encounter

problems navigating the reasonable impediment process suffers from the same fatal

flaw that plagues the previous examples. The trial court merely relied on plaintiffs’

evidence of past voters’ issues navigating a more restrictive reasonable impediment

process in 2016 under H.B. 589 and testimony that “[a] hesitant or infrequent voter

may be deterred from voting with a reasonable impediment declaration because the

process is unfamiliar or because it appears the voter is being treated differently from

everyone else at the polls.” (Emphasis added). This again is speculation that falls

short of the evidence required to support this factual finding.

Thus, because plaintiffs have failed to provide evidence that S.B. 824 would

result in disparate impact along racial lines, remand of this case for further

consideration in light of the applicable legal standard, presumption, and burden,

would be futile. S.B. 824 allows all would-be voters in North Carolina to vote either

with or without an approved form of identification. Plaintiffs failed to produce

sufficient evidence that either they, or any other citizen of this state, would be

precluded from voting due to the terms and conditions of S.B. 824. Every prospective

voter can vote without an identification if they submit a reasonable impediment

affidavit, which can only be rejected if the county board of elections unanimously

determines that the declaration is false.9

9The dissent below correctly stated that “[a]s the federal court three-judge panel said of South Carolina’s voter-ID law, on which S.B. 824 was modeled, ‘the sweeping reasonable impediment provision in [that law]’—which, as noted, is in fact less sweeping tha[n] S.B.

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As stated by the Supreme Court of the United States when reviewing Indiana’s

voter identification law,

A photo identification requirement imposes some burdens on voters that other methods of identification do not share. For example, a voter may lose his photo identification, may have his wallet stolen on the way to the polls, or may not resemble the photo in the identification because he recently grew a beard. Burdens of that sort arising from life’s vagaries, however, are neither so serious nor so frequent as to raise any question about the constitutionality of [Indiana’s voter identification law]; the availability of the right to cast a provisional ballot provides an adequate remedy for problems of that character.

The burdens that are relevant to the issue before us are those imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirements of [Indiana’s voter identification law]. . . . But just as other States provide free voter registration cards, the photo identification cards issued by Indiana[ ]are also free. For most voters who need them, the inconvenience of making a trip to [a government office], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.

Crawford, 553 U.S. at 197–98, 128 S. Ct. at 1620–21.10

824’s—‘eliminates any disproportionate effect or material burden that South Carolina’s voter ID law otherwise might have caused.’ ” (quoting South Carolina v. United States, 898 F. Supp. 2d 30, 40 (D.D.C. 2012). 10 It is undisputed that every legal vote should be counted. In oral argument, however,

plaintiffs implied that every provisional ballot should be counted as legal even if not lawfully cast. Oral Argument at 55:01, Holmes v. Moore (No. 342PA19-3) (Mar. 15, 2023), https://www.youtube.com/watch?v=RSJu29af7_4 (last visited Mar. 24, 2023). The trial court’s order contains a similar proposition under the guise of a factual finding regarding noncompliant votes in 2016. This is plainly wrong. See N.C.G.S. §§ 163-1 to 163-306 (2021); see also Burdick, 504 U.S. at 441, 112 S. Ct. at 2067 (citation omitted) (“[T]he right to vote is

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“[M]inor inconvenience[s] . . . do[ ] not impose a substantial burden” on the

right to vote, Lee, 843 F.3d at 600, and the inconveniences theoretically imposed, not

proven, on plaintiffs by S.B. 824 “arise[ ] from life’s vagaries” and “are neither so

serious nor so frequent as to raise any question about the constitutionality” of the

voter identification law here. Crawford, 553 U.S. at 197, 128 S. Ct. at 1620. In no

way do the hypothetical “disparate inconveniences” claimed by plaintiffs amount to a

“denial or abridgement of the right to vote,” let alone a denial or abridgment based

on race. Lee, 843 F.3d at 600–01 (emphasis in original). Arguably, plaintiffs’

speculations do not qualify as a legitimate attempt to carry their burden of

“establish[ing] that no set of circumstances exists under which the [a]ct would be

valid.” Salerno, 481 U.S. at 745, 107 S. Ct. at 2100.

The panel below relied heavily on the fact that plaintiff Mr. Holmes, who has

cerebral palsy, has severe scoliosis, and is paraplegic, may encounter difficulties in

obtaining a free identification under S.B. 824. Even if we ignore the fact that Mr.

Holmes can still vote without an identification under S.B. 824, as discussed above,

the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system.”); Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 1279 (1974) (“Moreover, as a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”). The right to vote and have a vote counted is dependent upon compliance with established rules and procedures, and to suggest this Court sanction noncompliance is to imply that the law has no meaning.

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any difficulties he may face in acquiring an identification have nothing to do with

race.

Such is the case with the other plaintiffs and their challenges. There is no

evidence that Mr. Kearney’s failure to present an identification in 2016 because he

left it at home was related to race. Similarly, Mr. Smith’s misplacement of his

identification in 2016 was not related to race, nor was Mr. Culp’s failure to present

an acceptable identification in 2016. Setting aside the fact that any difficulties they

are assumed to have encountered are wholly irrelevant because they occurred under

a prior, much more restrictive law, these difficulties were not attributable to race,

and all of these plaintiffs can vote under S.B. 824 without identification.

Moreover, the named plaintiffs can all obtain free identification cards that can

be used for eleven years and, even if they fail to do so, can cast provisional ballots

that will be counted if they comply with the forgiving requirements of S.B. 824. As

the dissenting judge noted below, “[t]here is no credible evidence that obtaining” a

form of qualifying identification under S.B. 824 “entails significant financial cost.”

The record also contains “no evidence that any voter, in particular any African

American voter, would be dissuaded from using” the reasonable impediment

declaration process if they failed to obtain a qualifying identification.

In sum, for all the aforementioned reasons, plaintiffs have failed to provide

evidence sufficient to prove beyond a reasonable doubt that S.B. 824 will result in

disparate impact. Because “plaintiff[s] must show discriminatory intent as well as

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disparate effect,” Irby, 899 F.2d at 1355, to prevail, plaintiffs’ failure to provide

sufficient evidence of disparate impact ends the matter. Nevertheless, we note that

plaintiffs also fail to provide sufficient evidence of discriminatory intent.

First, plaintiffs failed to produce any witness who could testify to the General

Assembly’s alleged discriminatory intent or otherwise rebut the presumption of good

faith. Representative Harrison, plaintiffs’ own witness, testified that she “cannot say

that racial bias entered into [passage of S.B. 824] and [she] would not say that racial

bias entered into [passage of S.B. 824].” As aptly put by the dissenting judge below,

“[i]f [p]laintiffs’ own witness, who was in the General Assembly and actively

participated in the passage of this legislation, did not then and does not now attribute

the passage of S.B. 824 [to] any discriminatory intent, then this [c]ourt certainly

[should] not either.”

Further, the evidence that S.B. 824 was passed in a special legislative session,

did not receive overwhelming support from Democratic legislators, and was enacted

without the consideration of racial data, is wholly insufficient to demonstrate

discriminatory intent beyond a reasonable doubt. Because our constitution

commands that “[t]he role of the legislature is to balance the weight to be afforded to

disparate interests and to forge a workable compromise among those interests,” it is

not the role of this Court “to sit as a super legislature and second-guess the balance

struck by the elected officials.” Bryant, 359 N.C. at 565, 614 S.E.2d at 486 (alteration

in original) (quoting Harvey, 315 N.C. at 491, 340 S.E.2d at 731). As the dissent below

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correctly noted, the General Assembly’s decision to comply with the people’s

command to pass a voter identification law by enacting such a law in a special session

in order to override the veto of Governor Cooper, a vocal opponent of any such law,

“was completely lawful and within [its] authority.”

Finally, there are two further fundamental errors below worthy of brief

discussion. First, the panel’s factual findings regarding both the sequence of events

leading to the enactment of S.B. 824 and the legislative history of S.B. 824

misapprehend the relevant presumptions in favor of the law’s validity because they

fail to properly consider and credit the crucial importance of the voter identification

amendment. Because the constitutional amendment created a positive duty for the

General Assembly to pass a voter identification law, adoption of S.B. 824 or some

similar measure was mandatory, not optional. The evidence, viewed with the proper

presumptions of both legislative good faith and constitutional compliance, plainly

demonstrates an intent to comply with the peoples’ will and the North Carolina

Constitution, not an intent to discriminate on the basis of race.

Second, the panel appears to have given considerable weight to the fact that

the General Assembly requested racial data when enacting H.B. 589 but did not

request racial data when enacting S.B. 824. It bears repeating that the request of

racial data, and the use of that data, was one of the primary reasons the Fourth

Circuit held that H.B. 589 was enacted with discriminatory intent. See McCrory, 831

F.3d at 230; see also Raymond, 981 F.3d at 308–09 (“The 2018 Voter-ID Law’s

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legislative history is otherwise unremarkable. Nothing here suggests that the

General Assembly used racial voting data to disproportionately target minority

voters ‘with surgical precision.’ ” (quoting McCrory, 831 F.3d at 214)).

According to the trial court, because the General Assembly did not request this

data, “the legislature did not know whether these changes between S.B. 824 and H.B.

589 would have any impact on the racial disparities in ID possession rates that had

been documented during the H.B. 589 litigation.” Paradoxically, the trial court

nevertheless implied, in the absence of any evidence, that the “62 members of the

legislature who voted for H.B. 589 [and] also voted for S.B. 824” relied on the H.B.

589 data when enacting S.B. 824, stating that it was “implausible that these

legislators did not understand the potential that S.B. 824 would disproportionately

impact [black] voters, just as H.B. 589 had done.”

Thus, in the absence of any evidence that any legislator utilized racial data

from McCrory, and in direct contradiction of the testimony from Representative

Harrison, the trial court imputed knowledge to 62 members of the General Assembly

and presumed bad faith of an entire branch of our government. The General

Assembly was placed in a “damned if you do, damned if you don’t” conundrum in

which, had it used racial data, it would run afoul of the prior admonition in McCrory,

and by not using such data, it could never satisfy the trial court’s application of the

Arlington Heights test. There was, thus, no option available to the legislature that

could lead to implementation of a voter identification measure. This is exactly the

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kind of reasoning explicitly disavowed by the Supreme Court of the United States

and the Fourth Circuit. As stated by the Fourth Circuit:

[T]he [trial] court emphasized that the General Assembly’s positions had “remained virtually unchanged” between McCrory and the enactment of the 2018 Voter-ID Law. And the court assumed that the racial data remained in the minds of the legislators: “[T]hey need not have had the racial data in hand to still have it in mind.” By focusing on who passed the 2018 Voter-ID Law and requiring the General Assembly to purge the taint of the prior law, the district court flipped the burden and disregarded Abbott’s presumption.

Raymond, 981 F.3d at 304–05 (third alteration in original); see also Abbott, 138 S. Ct.

at 2324 (“[T]he good faith of the state legislature must be presumed. The allocation

of the burden of proof and the presumption of legislative good faith are not changed

by a finding of past discrimination.” (cleaned up)).

When this matter is considered under the applicable legal standards, plaintiffs

can neither carry their burden of demonstrating discriminatory intent beyond a

reasonable doubt nor their burden of demonstrating meaningful disparate impact

beyond a reasonable doubt. Therefore, the order below is reversed and we remand to

the trial court for entry of a dismissal in this matter.

IV. Conclusion

“A frequent recurrence to fundamental principles is absolutely necessary to

preserve the blessings of liberty.” N.C. Const. art. I, § 35. This humble reminder

applies not just to individual rights preserved by our Constitution, but to the

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fundamental structure of our government, without which rights cannot properly be

protected.

In North Carolina “[t]he legislature is the great and chief department of

government. It alone is created to express the will of the people.” Wilson v. Jordan,

124 N.C. 683, 701, 33 S.E. 139, 150 (1899) (Clark, J., dissenting). Indeed, “for the

courts to strike down valid acts of the [l]egislature would be wholly repugnant to, and

at variance with, the genius of our institutions.” Revis, 193 N.C. at 196, 136 S.E. at

348.

The people of North Carolina overwhelmingly support voter identification and

other efforts to promote greater integrity and confidence in our elections. Subjective

tests and judicial sleight of hand have systematically thwarted the will of the people

and the intent of the legislature. But no court exists for the vindication of political

interests, and judges exceed constitutional boundaries when they act as a super-

legislature. This Court has traditionally stood against the waves of partisan rulings

in favor of the fundamental principle of equality under the law. We recommit to that

fundamental principle and begin the process of returning the judiciary to its rightful

place as “the least dangerous” branch. The Federalist No. 78 at 402 (Alexander

Hamilton) (Gideon ed. 2001).

Plaintiffs here have failed to prove beyond a reasonable doubt that S.B. 824

was enacted with discriminatory intent or that the law actually produces a

meaningful disparate impact along racial lines. The prior opinion is withdrawn, and

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we reverse and remand to the trial court for entry of an order dismissing plaintiffs’

claim with prejudice.

REVERSED AND REMANDED.

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Morgan, J., dissenting

Justice MORGAN dissenting.

Not long ago, the current Chief Justice of this Court, who is the most senior

member of the majority in the present case, observed in a dissenting opinion:

Judicial activism is a philosophy of judicial decision- making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore governing texts and precedents. It is difficult to imagine a more appropriate description of the action that the majority takes today.

State v. Kelliher, 381 N.C. 558, 597 (2022) (Newby, C.J., dissenting) (extraneity

omitted). Consistent with this swashbuckling view, the Chief Justice also wrote this

richly ironic nugget a few years back as a dissenter in one of this Court’s opinions:

As a monarch, King Louis XVI once famously said, “C’est légal, parce que je le veux” (“It is legal because it is my will.”) Today, four justices of this Court adopt the same approach to the law, violating the norms of appellate review and disregarding or distorting precedent as necessary to reach their desired result. Apparently, in their view, the law is whatever they say it is. . . .

....

. . . Instead of doing the legally correct thing, the majority opinion picks its preferred destination and reshapes the law to get there.

State v. Robinson, 375 N.C. 173, 193, 195 (2020) (Newby, J., dissenting) (footnote

omitted).

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In uniform fashion, the author of the majority opinion in this case1 recently

offered this dissenting view in one of this Court’s decisions:

The majority’s dismissal of our precedent here is deeply troublesome, yet increasingly unsurprising. . . .

That the majority has injected chaos and confusion into our political structure is self-evident.

N.C. State Conf. of the NAACP v. Moore, 382 N.C. 129, 182, 197 (2022) (Berger, J.,

dissenting).

Similarly, yet a third member of the majority in the instant case freshly penned

this dissenting observation in response to an order of this Court a short time back:

[T]he majority’s decision today appears to reflect deeper partisan biases that have no place in a judiciary dedicated to the impartial administration of justice and the rule of law.

Harper v. Hall, 382 N.C. 314, 317 (2022) (order allowing expedited hearing and

consideration) (Barringer, J., dissenting).

It is apparent from the artfully chosen words of my three distinguished

colleagues that they have not been reticent about the notion of introducing partisan

politics into this Court’s opinions when they disagreed with various case outcomes.

Indeed, these three justices of the majority have clearly been enamored with this

1 For clarity, the authoring justice of the majority opinion and the identity of one of the named defendants are not one and the same. Although the two individuals have identical first and last names, the named defendant is the father of the authoring justice.

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strategic approach which has been conveniently conceived in order to cast aspersions

in certain categories of cases which this Court decided in a manner which differed

from their three united orientations. Yet now, joined by two more justices who

subscribe to the trio’s identical politically saturated legal philosophies and who were

elected to serve on the Court since the dissenting opinions cited above were written,

the five justices which constitute the majority here have emboldened themselves to

infuse partisan politics brazenly into the outcome of the present case. This majority’s

extraordinarily rare allowance of a petition for rehearing in this case, mere weeks

after this newly minted majority was positioned on this Court and mere months after

this case was already decided by a previous composition of members of this Court,

spoke volumes. My consternation with the majority’s abrupt departure from this

Court’s institutionalized stature—historically grounded in this forum’s own

reverence for its caselaw precedent, its deference to the rule of law, and its severance

from partisan politics—is colossal. When convenient at the time, Chief Justice Newby

wrote in his dissenting opinion in Harper v. Hall:

[T]he majority today wholeheartedly ushers this Court into a new chapter of judicial activism, severing ties with over two hundred years of judicial restraint in this area. . . . Undeterred, it untethers itself from history and caselaw.

380 N.C. 317, 434 (2022) (Newby, C.J., dissenting). As a member of the majority in

the instant case, the Chief Justice’s own words unwittingly and succinctly happen to

apply to him and his counterparts of the majority in this case. I must dissent.

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“All . . . will bear in mind this sacred principle, that though the will of the

majority is in all cases to prevail, that will to be rightful must be reasonable; that the

minority possess their equal rights, which equal law must protect, and to violate

would be oppression.” President Thomas Jefferson, First Inaugural Address (Mar. 4,

1801), available at https://avalon.law.yale.edu/19th_century/jefinau1.asp. Although

the sentiment that all persons be afforded equal protection of the law was expressed

early and often in the founding of our great republic, any substantive guarantee

embedded in this provision did not come into fruition until much later in the

respective histories of the nation and of this state. In particular, suffrage, a

fundamental right that “is preservative of other basic civil and political rights,”

Reynolds v. Sims, 377 U.S. 533, 562 (1964), was explicitly restricted to white male

property owners in North Carolina following the Constitutional Convention of 1835

and was not re-extended to Black people until 1868 following the conclusion of the

Civil War and the beginning of Reconstruction.

Even then, Democrats, realizing that the interests of Blacks were better

aligned with the Republican and Populist Parties at the time, began a campaign of

racist rhetoric, violence, and outright fraud in order to regain a majority. J. Morgan

Kousser, The Shaping of Southern Politics: Suffrage Restriction and the

Establishment of the One-Party South, 1880-1910 188 (1974). Once in office, the

legislators passed a law in 1899 that relocated the power to appoint election officers

from local officials to a state election board selected by the General Assembly which

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eventually became controlled by the Democrats. Id. at 190. The legislative body

required voters to re-register and allowed registrars to disfranchise anyone as they

saw fit. Id. In 1900, the Democratic General Assembly passed a constitutional

amendment that required the completion of a literacy examination and payment of a

poll tax in order to establish one’s eligibility to vote. Id. at 190–95. As a result of this

and other facially neutral measures,2 which exempted men who were eligible to vote

in 1867 or whose fathers or grandfathers were eligible to vote in 1867 (i.e., white men)

and empowered county officials to act as gatekeepers by administering the highly

subjective literacy tests, Black voter turnout plummeted, and the state remained

under conservative control until the mid-twentieth century. Id.

After the Voting Rights Act of 1965 was passed as part of the American civil

rights movement, North Carolina was forced to remove many barriers to voting that

had been previously implemented throughout the state, including the aforementioned

literacy examination.3 The Act also required that certain counties across the United

2 As the United States Supreme Court held in 1959, the state’s literacy requirement did not, on its face, violate the Fifteenth Amendment by denying the right to vote on the basis of race. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 53 (1959). Noteworthily, Henry Frye, who was the first Black person to serve on this Court and who eventually became this Court’s first Black Chief Justice, was denied the right to register to vote on the grounds that he was deemed to have failed this literacy test, even after graduating with highest honors from the collegiate institution now known as North Carolina Agricultural and Technical State University and after attaining the rank of Captain upon serving four years in the United States Air Force. Although he was declared unable to vote, he was accepted into the University of North Carolina School of Law and graduated with its law degree in 1959. See Adrienne Dunn, “Henry Frye,” North Carolina History Project, https://northcarolinahistory.org/encyclopedia/henry-e-frye-1932/. 3 Although the Voting Rights Act banned states from requiring the completion of

literacy tests as a prerequisite to voting, the literacy requirement remains part of the state

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States, including forty counties within North Carolina, obtain preclearance from the

federal government before implementing any new election laws in order to ensure

that any such laws would not be discriminatory in nature. A year later, registration

of Black voters in North Carolina exceeded fifty percent for the first time since 1900.

J. Morgan Kousser, When African-Americans Were Republicans in North Carolina,

The Target of Suppressive Laws Was Black Republicans. Now That They Are

Democrats, The Target Is Black Democrats. The Constant Is Race 14 (Apr. 17, 2014),

https://www.aclu.org/sites/default/files/assets/lwv_expert_report_-_m__kousser.pdf.

During this time, the General Assembly also passed a number of laws that had the

effect of increasing access to voting, including laws that authorized early voting, out-

of-precinct voting, same-day registration, and preregistration for teenagers. These

efforts collectively boosted the registration of Black voters in the state by fifty percent

and dramatically increased voter turnout, especially of Black voters. Id. at 17.

Nevertheless, state politics have remained racially polarized going into the

twenty-first century, “offer[ing] a political payoff” for legislators to “dilute or limit the

minority vote,” Holmes v. Moore, 270 N.C. App. 7, 22 (2020) (extraneity omitted),

since the disenfranchisement of Black voters “predictably redound[ed] to the benefit

of one political party and to the disadvantage of the other.” N.C. State Conf. of the

Constitution as a “not . . . particularly pleasing relic” of North Carolina’s racial past. Michael Hyland, Bipartisan measure aims to remove literacy requirement from North Carolina Constitution, FOX 8 (Mar. 2, 2023), https://myfox8.com/news/politics/your-local-election- hq/bipartisan-measure-aims-to-remove-literacy-test-from-north-carolina-constitution/.

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NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016), cert denied sub nom. North

Carolina v. N.C. State Conf. of the NAACP, 581 U.S. 985 (2017). For instance, after

the United States Supreme Court invalidated the Voting Rights Act’s preclearance

requirements in 2013 through its decision in Shelby County v. Holder, 570 U.S. 529

(2013), the North Carolina General Assembly rapidly put together an omnibus bill

altering state election law that the Fourth Circuit determined was motivated, at least

in part, by discriminatory racial intent. McCrory, 831 F.3d at 233. This law

eliminated or curtailed many voter-friendly initiatives that had been introduced in

the 1960s—including early voting, same-day registration, and preregistration—and

included a provision that required voters to present photographic identification in

order to vote in person. Id. at 214–17. The Fourth Circuit found that the state

legislature had crafted this law with the knowledge and intent that it would

disproportionately impact Black voters who disproportionately made use of those

initiatives that the bill worked to curtail or eliminate, tended to lack the forms of

identification deemed acceptable by the Republican General Assembly, and voted

overwhelmingly for the Democratic Party. Id.

“Unquestionably, North Carolina has a long history of race discrimination

generally and race-based vote suppression in particular.” Id. at 223. This historical

reality is not one that anyone can legitimately deny, although the majority appears

to represent in a footnote in its written opinion that the mere current presence of one

Black man and one Black woman who were both elected to this Court, coupled with

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other individuals expressly identified by the majority who are members of the Black

race who have also been elected to office in North Carolina in modern times, proves

that this state has progressed so much that this state’s contemptible racial history

regarding electoral politics bears no logical relation to its present-day political

climate.4 This naïveté, if such, would be appalling; this callousness, if such, would be

galling.

Courts are not obliged to turn a blind eye to the historical circumstances that

might inform present-day efforts to encumber, restrict, or otherwise discourage the

exercise of the precious right to vote. An equilibrium between presuming legislative

good faith, while remaining cognizant of the insidious nature of discriminatory intent

as a potential motivation for facially neutral legislative acts, is precisely what was

captured by the United States Supreme Court when it decided Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). In issuing

its decision in Arlington Heights, the nation’s highest court recognized that “[t]he

historical background of [a legislative act] is one evidentiary source” relevant to

discriminatory intent, “particularly if it reveals a series of official actions taken for

invidious purposes.” Id. at 267. While the Supreme Court has subsequently cautioned

4 It is both noteworthy and instructive that legislation intended to limit suffrage along racial lines was specifically introduced as backlash to the election of Black legislators during the Reconstruction Era, indicating both that racial progress is not always linear and that political gains for minorities often precede conservative pushback to universal suffrage. Olivia B. Waxman, The Legacy of the Reconstruction Era’s Black Political Leaders, Time (Feb. 7, 2022), https://time.com/6145193/black-politicians-reconstruction/.

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that “past discrimination cannot, in the manner of original sin, condemn

governmental action that is not itself unlawful,” Mobile v. Bolden, 446 U.S. 55, 74

(1980) (plurality opinion), it remains the case that historical discrimination is a

relevant factor in ascertaining the existence of present discriminatory intent. Abbott

v. Perez, 138 S. Ct. 2305, 2351–52 (2018) (Sotomayor, J., dissenting).

My esteemed colleagues who constitute the majority granted petitioners’

request for rehearing of this case on the grounds that a previous majority of this Court

was deemed to have committed legal error by failing to afford the General Assembly

its presumption of good faith in accordance with federal precedent. However, in an

egregious twist and twirl, this Court obliterates its recognition of federal precedent

altogether in order to introduce its own new standard of review for equal protection

claims arising under the state Constitution. In doing so, this majority conveniently

and haughtily spurns federal caselaw precedent fostered by the decision of the United

States Supreme Court in Arlington Heights, while simultaneously upending decades

of state constitutional principles, in its quest to shield acts of the state legislature

from scrutiny for invidious discriminatory intent.

I. Background and Standard of Review

“Using race as a proxy for party may [still] be an effective way to win an

election.” McCrory, 831 F.3d at 222. Even in the absence of explicit “race-based

hatred” or animus, “intentionally targeting a particular race’s access to the franchise

because its members vote for a particular party, in a predictable manner, constitutes

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discriminatory purpose.” Id. Furthermore, racially neutral laws motivated by

discriminatory intent are “just as abhorrent, and just as unconstitutional, as laws

that expressly discriminate on the basis of race.” Id. at 220. Because “[o]utright

admissions of impermissible racial motivation are infrequent” in the contemporary

context, Hunt v. Cromartie, 526 U.S. 541, 553 (1999), courts must often make a

“sensitive inquiry into such circumstantial and direct evidence of intent as may be

available” when determining whether a legislative body has acted with

discriminatory intent in violation of the state or federal constitution. Arlington

Heights, 429 U.S. at 266.

In deciding Arlington Heights, the United States Supreme Court established a

nonexhaustive list of factors that courts may consider probative on this question,

including: (1) the historical background of the action; (2) the sequence of events

leading up to its enactment, including any departures from the normal procedural or

substantive operations of that legislative body; (3) the law’s legislative and

administrative history; and (4) whether the law’s effect “bears more heavily on one

race than another.” Id. at 266–68. Discriminatory purpose “may often be inferred

from the totality of the relevant facts,” Washington v. Davis, 426 U.S. 229, 242 (1976),

and courts do not consider “each piece of evidence in a vacuum,” but the “totality of

the circumstances” when ascertaining the presence of discriminatory intent.

McCrory, 831 F.3d at 233. The Supreme Court has further provided that, because

legislative bodies are “[r]arely . . . motivated solely by a single concern,” a plaintiff

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need only demonstrate that “invidious discriminatory purpose was a motivating

factor” in the enactment of a piece of legislation, Arlington Heights, 429 U.S. at 265–

66, before the burden shifts onto the legislature to demonstrate that “the law would

have been enacted without this factor.” Hunter v. Underwood, 471 U.S. 222, 228

(1985).5 “[T]he ultimate question” then becomes whether a law was enacted “because

of,” rather than “in spite of,” the discriminatory effect it would produce. McCrory, 831

F.3d at 220 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).

As a preliminary matter, the case before us was brought under Article I,

Section 19 of the Constitution of North Carolina, which provides that “No person shall

be denied the equal protection of the laws; nor shall any person be subjected to

discrimination by the State because of race, color, religion, or national origin.” N.C.

Const. art. I, § 19. This provision “expressly incorporated” the Equal Protection

Clause that had been “made explicit in the Fourteenth Amendment to the

Constitution of the United States.” S. S. Kresge Co. v. Davis, 277 N.C. 654, 660 (1971).

As such, “[t]his Court’s analysis of the State Constitution’s Equal Protection Clause

generally follows the analysis of the Supreme Court of the United States in

interpreting the corresponding federal clause.” Blankenship v. Bartlett, 363 N.C. 518,

522 (2009). “However, in the construction of the provision of the State Constitution,

the meaning given by the Supreme Court of the United States to even an identical

5 The initial burden of proof by which plaintiffs must demonstrate that racial discrimination was a motivating factor in the adoption of a facially neutral act under Arlington Heights is by a preponderance of the evidence. Hunter, 471 U.S. at 225.

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term in the Constitution of the United States is, though highly persuasive, not

binding upon this Court.” Bulova Watch Co. v. Brand Distribs. of N. Wilkesboro, Inc.,

285 N.C. 467, 474 (1974). We maintain our authority to construe our state

Constitution and its provisions separately from their federal analogues, so long as

“our citizens are thereby accorded no lesser rights than they are guaranteed by the

parallel federal provision[s].” Stephenson v. Bartlett, 355 N.C. 354, 380–81 n.6 (2002)

(quoting State v. Carter, 322 N.C. 709, 713 (1988)). The federal Constitution is a floor,

below which we cannot sink. The majority ignores this fundamental principle.

In determining whether Senate Bill 824 violates Article I, Section 19 of the

Constitution of North Carolina, this Court must accept any findings of fact made by

the trial court as conclusive when supported by any competent evidence. When the

trial court acts as factfinder, “the trial court’s findings of fact . . . are conclusive on

appeal if there is competent evidence to support them, even [if] the evidence could be

viewed as supporting a different finding.” In re Estate of Skinner, 370 N.C. 126, 139

(2017) (quoting Bailey v. State, 348 N.C. 130, 146 (1998)). Findings of fact that are

“supported by competent, material and substantial evidence in view of the entire

record[ ], are conclusive upon a reviewing court and not within the scope [of its]

reviewing powers.” Id. at 139 (alteration in original) (quoting In re Revocation of

Berman, 245 N.C. 612, 616–17 (1957)). However, a trial court’s conclusion as to

whether a statute is constitutional, made in light of its findings of fact, is a question

of law that this Court reviews de novo. State v. Romano, 369 N.C. 678, 685 (2017).

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II. Discussion

“It is the state judiciary that has the responsibility to protect the state

constitutional rights of the citizens; this obligation to protect the fundamental rights

of individuals is as old as the State.” Corum v. UNC, 330 N.C. 761, 783 (1992)

(emphasis added). Rather than choosing to honor that duty, the majority instead

strives to protect the state legislature from the citizens—first, by adopting a standard

of proof for equal protection claims brought under Article I, Section 19 of the

Constitution of North Carolina that unduly diminishes a claimant’s ability to prevail

and, second, by misconstruing federal precedent to neuter the sensitive inquiries

specifically authorized under Arlington Heights.

A. The New Majority’s Novel Standard of Proof

Throughout its opinion, the majority adopts an unprecedented burden of proof

for claimants bringing equal protection claims arising under our state Constitution.

Although the majority repeatedly characterizes its framework as traditional and

consistent with the bulk of state authority, the depiction is, mildly put, a freewheeling

exaggeration. In fact, the majority’s new standard departs sharply from both federal

and state precedent by abandoning the traditional equal protection framework and

construing a provision of our state Constitution as providing lesser protection to

citizens of our state than its federal analogue.

The majority cites numerous opinions of this Court for its assertion that facial

constitutional challenges to an act of the legislature must be proven beyond a

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reasonable doubt. See State v. Strudwick, 379 N.C. 94 (2021); Cooper v. Berger, 370

N.C. 392 (2018); Hart v. State, 368 N.C. 122 (2015); Pope v. Easley, 354 N.C. 544

(2001); Baker v. Martin, 330 N.C. 331 (1991). The majority implies that these cases

establish some state-specific analytical jurisprudence that departs from the federal

framework and supersedes Arlington Heights; however, none of these cases concern

equal protection claims arising under Article 1, Section 19 of the Constitution of

North Carolina. This is a crucial misfire because precedent specific to Article 1,

Section 19 tends to favor identical construction to the Fourteenth Amendment. See

S. S. Kresge Co., 277 N.C. at 660 (“[T]he principle of the equal protection of the law,

made explicit in the Fourteenth Amendment to the Constitution of the United States

. . . has now been expressly incorporated in Art. I, § 19, of the Constitution of North

Carolina . . . .”); Blankenship, 363 N.C. at 522 (“This Court’s analysis of the State

Constitution’s Equal Protection Clause generally follows the analysis of the Supreme

Court of the United States in interpreting the corresponding federal clause.”).

Furthermore, state jurisprudence favors a more liberal construction of state

constitutional provisions as compared to their federal analogues and disavows any

construction that would afford citizens fewer protections than are afforded federally.

See Carter, 322 N.C. at 713 (“[W]e have the authority to construe our own constitution

differently from the construction by the United States Supreme Court of the Federal

Constitution, as long as our citizens are thereby accorded no lesser rights than they

are guaranteed by the parallel federal provision.” (emphasis added)); see also

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Stephenson, 355 N.C. at 380–81 (applying this principle to the Equal Protection

Clause); Corum, 330 N.C. at 783 (“Our Constitution is more detailed and specific than

the federal Constitution in the protection of the rights of its citizens.”). The majority’s

decision flies in the face of this precedent by rejecting Arlington Heights on the

grounds that it makes it too easy for citizens of this state to succeed on claims that

legislative acts were enacted with discriminatory intent and thereby to assert their

right to equal protection of the law.

The majority contends that its adoption of the “beyond a reasonable doubt”

standard is justified by the pursuit of objectivity and consistency. Specifically, the

majority appears to be gravely concerned that courts applying Arlington Heights

might come to different conclusions concerning the constitutionality of the same

legislative act. However, inconsistent outcomes are a regular byproduct of

complicated, fact-intensive legal inquiries which appellate courts are presumably

equipped to review. Furthermore, the entire purpose of Arlington Heights and its

progeny is to empower plaintiffs alleging equal protection claims against legislation

which appears neutral on its face to put forward “such circumstantial and direct

evidence . . . as may be available” across a range of factors that the Supreme Court of

the United States has deemed probative on the question of discriminatory intent. 429

U.S. at 266.6 By the very nature of such claims, the evidence presented by plaintiffs

6 Although the majority does not specifically state that its new legal framework disfavors the Arlington Heights factors as legitimate sources of evidence bearing on the issue of discriminatory intent, it does opine that evidence declared to be sufficient under the

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in these types of cases will necessarily appear from sources other than the face of the

challenged piece of legislation; consequently, different groups of plaintiffs challenging

the same law may build entirely different records from which factfinders may derive

entirely different factual findings upon which to base their legal conclusions. These

circumstances are routine and do not justify the extreme departure from proven

precedent which the majority cavalierly creates.

As if this new standard of proof were not enough to ensure its desired outcome,

the majority imposes additional hurdles onto plaintiffs in the form of legal tests that

are not ordinarily applied to equal protection claims. Specifically, the majority

discusses the so-called Salerno test, which establishes that an individual challenging

the facial constitutionality of a legislative act “must establish that no set of

circumstances exist under which the [a]ct could be valid.” United States v. Salerno,

481 U.S. 739, 745 (1987); see also State v. Bryant, 359 N.C. 554, 564 (2005). However,

this test is rarely applied as strictly as it was conceived, see Washington v.

Glucksberg, 521 U.S. 702, 740 (1997) (Stevens, J., concurring), and is barely applied

at all in several areas of constitutional law, including Equal Protection Clause

jurisprudence. See Alex Kreit, Making Sense of Facial and As-Applied Challenges, 18

Wm. & Mary Bill Rts. J. 657, 659–65 (2010); Michael C. Dorf, Facial Challenges to

State and Federal Statutes, 46 Stan. L. Rev. 235, 238–39 (1994). To the extent that

Arlington Heights framework is “by its very nature speculative” and open to subjective interpretation.

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this Court has previously cited Salerno, it has never been within the context of an

equal protection claim. Finally, the United States Supreme Court itself has

questioned the ongoing viability of this aspect of Salerno altogether. See City of

Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (“To the extent we have consistently

articulated a clear standard for facial challenges, it is not the Salerno formulation,

which has never been the decisive factor in any decision of this Court, including

Salerno itself . . . .”).

B. The Majority’s Abuse of Abbott and Raymond

Unsatisfied with its ability to eschew the federal framework for one which all

but guarantees the state legislature’s indemnity from plaintiffs’ pesky claims of racial

discrimination, the majority attempts to extract overly broad legal principles from

two federal decisions that, as it acknowledges, are not binding on this Court and were

cabined by their own records on appeal in order to claim that the trial court’s analysis

not only faltered under this Court’s entirely new state standard, but also under a

traditional application of Arlington Heights. However, neither case stands for such a

sweeping proposition as the majority would assign to it and, in fact, both cases happen

to expressly acknowledge historical context as a permissible source of insight into

present legislative intent. Furthermore, both the United States Supreme Court in

Abbott, as well as the Fourth Circuit in Raymond, were confronted with trial court

findings that were distinctly and thoroughly flawed by the misapplication of the

proper burden of proof. In the absence of such error by the trial court in the present

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case, the majority’s effort to analogize the trial court’s decision in this case with those

presented in Abbott and Raymond falls flat.

i. The United States Supreme Court’s Decision in Abbott v. Perez

In Abbott, the United States Supreme Court reversed in part the decision of a

three-judge panel sitting in the Western District of Texas, finding that the

redistricting plans adopted by the 2013 Texas Legislature had not been “cured” of the

unlawful discriminatory intent that had been previously found in the plans adopted

by the Texas Legislature in 2011. 138 S. Ct. at 2313. The Abbott Court held that the

district court had “committed a fundamental legal error” by requiring “the State to

show that the 2013 Legislature somehow purged the ‘taint’ that the court attributed

to the defunct and never-used plans enacted by a prior legislature in 2011.” Id. at

2313, 2324. The Supreme Court acknowledged that Arlington Heights applied, and

that the historical background of the 2013 redistricting plans was relevant to the

question of whether they were enacted with discriminatory intent; however, it also

emphasized that a finding of past discrimination alone did not justify shifting the

burden of proof from plaintiffs to the State. Id. at 2324. The high Court therefore

concluded that “the essential pillar of the three-judge court’s reasoning was critically

flawed” and that, reviewed under the “proper legal standards,” all but one of the

legislative districts were lawful. Id. at 2313–14.

The Abbott Court determined that, aside from the legislative body’s prior bad

acts, both the direct and circumstantial evidence did not support the district court

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panel’s conclusion that the 2013 Texas Legislature had acted with discriminatory

intent. Id. at 2327. The Supreme Court credited the fact that the 2013 redistricting

plans had been approved and adopted by the three-judge court itself, and that the

state attorney general had advised the 2013 Legislature that adopting these plans

was the easiest way to bring legal challenges to a close as “expeditiously as possible,”

thus indicating the legislature’s legitimate intent to adopt court-approved plans as a

means of ending litigation. Id. at 2313, 2327. Meanwhile, it discredited the federal

district court’s inferences of unlawful intent as unsound and without supporting

evidence. Id. at 2327–29. As such, the Abbott Court opined that the federal district

court’s inappropriate reallocation of the burden of proof onto the State was “central”

to its analysis, noting that the lower court had

referred repeatedly to the 2013 Legislature’s duty to expiate its predecessor’s bad intent, and when the court summarized its analysis, it drove the point home. It stated: “The discriminatory taint [from the 2011 plans] was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy.”

Id. at 2325–26 (alteration in original) (quoting Perez v. Abbott, 274 F. Supp. 3d 624,

649 (W.D. Tex. 2017)). Having concluded that the plaintiffs had not met their burden

of proof to demonstrate discriminatory intent under the correct legal standard except

in the case of one district which had a design explicitly predicated on race, the Court

reversed in part, affirmed in part, and remanded to the trial court. Id. at 2335.

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The majority strains to construe Abbott as impacting the present case in at

least two ways. First, the majority misconstrues the directive in Abbott that a finding

of past discrimination cannot alone justify reallocating the burden of proof from

plaintiffs onto the State as indicating that the trial court’s findings in the present

case, considering the historical background of Senate Bill 824, had no bearing on the

intent of the legislature which had passed it. Second, the majority regards Abbott as

permission for this Court to entirely disregard the second prong of Arlington Heights

absent a finding that the General Assembly here not only deviated from its normal

operating procedures but deviated so grossly as to have acted outside of its legitimate

constitutional power. However, the United States Supreme Court’s holding in Abbott

cannot legitimately be stretched by the majority to substantiate the liberties which it

takes with the high court’s instructive reasoning in Abbott.

First, the Abbott Court’s holding that the federal district court had improperly

flipped the burden of proof was neither based on the lower court’s mere consideration

of the law’s historical background, nor stray references to a prior legislature’s

discriminatory intent or knowledge of the plans’ potential discriminatory impact.

Indeed, the Supreme Court in Abbott fully recognized the relevancy of the 2013

redistricting plans’ historical background, including the prior finding of

discrimination on the part of the 2011 Legislature:

In holding that the District Court disregarded the presumption of legislative good faith and improperly reversed the burden of proof, we do not suggest either that the intent of the 2011 Legislature is irrelevant or that the

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plans enacted in 2013 are unassailable because they were previously adopted on an interim basis by the Texas court. Rather, both the intent of the 2011 Legislature and the court’s adoption of the interim plans are relevant to the extent that they naturally give rise to—or tend to refute— inferences regarding the intent of the 2013 Legislature. They must be weighed together with any other direct and circumstantial evidence of that Legislature’s intent. But when all the relevant evidence in the record is taken into account, it is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination.

Id. at 2326–27 (emphases added). Justice Sotomayor’s dissent in Abbott credits the

majority for exactly this distinction, noting that the majority opinion “does not

question the relevance of historical discrimination in assessing present

discriminatory intent. Indeed, [it] leaves undisturbed the longstanding principle

recognized in Arlington Heights that the historical background of a legislative

enactment is one evidentiary source relevant to the question of intent.” Id. at 2351–

52 (Sotomayor, J., dissenting) (extraneity omitted).

Instead, the holding in Abbott reflects the fact that the federal district court in

that case had allowed the previous legislature’s intent not only to invade its

considerations of the other Arlington Heights factors, but also to dictate the lower

court’s findings at each stage by requiring the legislature to affirmatively prove that

it had cured the discriminatory taint of the prior legislative body. See Perez, 274 F.

Supp. 3d at 648. It would be nearly impossible to disentangle the Perez court’s factual

findings from its improper legal framework because, as the federal district court itself

explicitly stated, it conducted its analysis believing that the “most important

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consideration [was] whether the 2011 plans continue[d] to have discriminatory or

illegal effect, and whether the [2013] reenactment further[ed] that existing

discrimination.” Id. The Supreme Court addressed this misconception in deciding

that the lower court had committed legal error, unequivocally declaring that: “[u]nder

these circumstances, there can be no doubt about what matters: It is the intent of the

2013 Legislature. And it was the plaintiffs’ burden to overcome the presumption of

legislative good faith and show that the 2013 Legislature acted with invidious intent.”

Abbott, 138 S. Ct. at 2325.

Conversely, the trial court made no such legal error in the present case. The

tribunal correctly identified the applicable legal framework as supplied by Arlington

Heights and accurately acknowledged throughout that plaintiffs bore the initial

burden of proving that Senate Bill 824 was enacted with discriminatory intent before

defendants would ever be required to demonstrate that the law would have been

enacted absent discrimination as a motivating factor. Unlike the federal district court

in Perez, the trial court in this case never contemplated that the primary

consideration might be the intent of the prior legislature that had passed the previous

voter identification provision; indeed, it never strayed from its objective to determine

the intent of the legislature which passed Senate Bill 824 using the factors provided

by Arlington Heights. While, in its thorough analysis, the trial court referenced both

the previous voter identification law, House Bill 589—and the Fourth Circuit’s

decision in McCrory that had determined that House Bill 589 was itself passed with

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discriminatory intent—the trial court appropriately did so by properly considering

House Bill 589 as part of the overall historical background leading up to Senate Bill

824 and by using McCrory’s analysis of House Bill 589 in order to guide its own

analysis of Senate Bill 824 rather than to dictate its outcome.

The majority ascribes much significance to one of the trial court’s numerous

subheadings in the lower forum’s issued order: “The Design of S.B. 824 Does Not

Evince an Intent by the General Assembly to Cure Racial Disparities Observed Under

H.B. 589.” This organizational entry, and the trial court’s subsequent analysis

appearing under the section, do not constitute an improper reallocation of the burden

of proof onto defendants. In this portion of its order, the trial court rejects some of

defendants’ counterarguments as to why and how the legislative history of Senate

Bill 824 did not raise “additional red flags.” Before reaching this section, as well as

the one immediately following it which concluded that the “Limited Democratic

Involvement in Enacting S.B. 824 [Did] Not Normalize the Legislative Process,”

however, the trial court specifically found that Senate Bill 824 had been enacted in

an unusually expeditious process, leaving little time for concerns to be addressed

about the law’s impact on minority voters. The trial court further specifically found

that amendments to the legislative bill that were proposed which might have

benefitted Black voters were rejected and not incorporated into the final law. In the

aforementioned category of the trial court’s order, the tribunal acknowledged that

Senate Bill 824 included forms of qualifying identification which were not included

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in House Bill 589 before concluding that the General Assembly did not “consider any

updated racial demographic data prior to the enactment of S.B. 824” and, therefore,

could not be credited with actively persevering to reduce the known racial impact of

requiring voters to present photographic identification. This segment of the trial

court’s order did not directly ascribe the discriminatory intent of the legislature that

had passed House Bill 589 to the legislature that had passed Senate Bill 824; instead,

it recognized the known disparate impact of a photographic identification

requirement to vote, evidenced in part by data from the implementation of House Bill

589; the fact that those amendments that would specifically assist Black voters in

accessing the franchise despite such a requirement were rejected by the General

Assembly; and that those additional forms of identification that were integrated into

the final law were not fashioned to alleviate the law’s disparate racial impact. All of

these findings by the trial court were supported by competent evidence and should

have been taken as conclusive on appeal.

The majority also cites Abbott for the majority’s proposition that a speedy

legislative process cannot give rise to an inference of bad faith. In Perez, the federal

district court found that the 2013 Texas Legislature “pushed the redistricting bills

through quickly in a special session.” 274 F. Supp. 3d at 649. The federal district court

noted that the Texas Attorney General had urged the legislature to adopt the

redistricting plans during the regular session, but that the regular session ended in

May 2013 with no redistricting action, whereupon the Governor of Texas called a

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special session to consider legislation ratifying and adopting the court-approved

redistricting plans. Id. at 634. On this point, the United States Supreme Court

provided that:

we do not see how the brevity of the legislative process can give rise to an inference of bad faith—and certainly not an inference that is strong enough to overcome the presumption of legislative good faith . . . . The “special session” was necessary because the regular session had ended. As explained, the Legislature had good reason to believe that the interim plans were sound, and the adoption of those already-completed plans did not require a prolonged process. After all, part of the reason for adopting those plans was to avoid the time and expense of starting from scratch and leaving the electoral process in limbo while that occurred.

Abbott, 138 S. Ct. at 2328–29. The majority clings to this snippet from Abbott in an

effort to discredit the trial court’s findings that the sequence of events leading to the

enactment of Senate Bill 824 was unusual and “[m]arked by [d]epartures from

[n]ormal [l]egislative [p]rocedure.”

However, the relevant inquiry under Arlington Heights is not whether a

challenged action was adopted after a brief legislative process as opposed to a lengthy

one; rather, Arlington Heights directs courts to consider “[d]epartures from the

normal procedural sequence.” 429 U.S. at 267. Cases applying the Arlington Heights

factors suggest that an actor’s “normal procedural sequence” should be defined by the

procedural norms of that particular entity. See, e.g. Familias Unidas Por La

Educación v. El Paso Indep. Sch. Dist., 2022 U.S. Dist. LEXIS 180846 at *23–25 (W.D.

Tex. 2022) (finding that the public school district had deviated from its typical

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procedures by failing to involve community members in its decision to close three

elementary schools); Greater New Orleans Fair Hous. Action Ctr. v. St. Bernard

Parish, 641 F. Supp. 2d 563, 573–74 (E.D. La.) (finding that the St. Bernard Parish

and Parish Counsel deviated from the normal process for enacting a moratorium in

relation to a proposed construction project by not involving a variance and not being

limited in scope); see also Normal, Black’s Law Dictionary (6th ed. 1990) (defining

“normal” as “[a]ccording to, constituting, or not deviating from an established norm”).

Furthermore, a deviation from a legislature’s normal operating procedure does not

automatically constitute a violation of the legislature’s defined procedural rules, and

therefore certainly not constitutional constraints. McCrory, 832 F.3d at 228 (“But, of

course, a legislature need not break its own rules to engage in unusual procedures.”).

In Perez, the federal district court made no findings from which it or an

appellate court could determine whether a convention of a legislative special session

for the purpose of considering and adopting court-approved redistricting plans was

outside of the Texas Legislature’s normal operating procedures. 274 F. Supp. 3d 624.

As the United States Supreme Court held, the “brevity” of the legislative process in

that case was not enough to give rise to an inference of bad faith alone, especially

considering the legislature’s reason to believe that the court-issued redistricting

plans were sound and the law-making body’s motivation to avoid an indefinite

disruption of the electoral process. Abbott, 138 S. Ct. at 2328–29. The circumstances

in Abbott are readily distinguishable from the situation in the present matter, where

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the trial court made multiple findings that directly addressed the North Carolina

General Assembly’s normal operating procedures and the legislative body’s deviation

therefrom during both the enactments of House Bill 1092—the constitutional

amendment requiring voters to produce photographic identification in order to vote—

and Senate Bill 824 as its implementing legislation. Instead of accepting these

findings as binding and relevant to its Arlington Heights analysis, the majority

proposes in its opinion here that any consideration of procedural abnormalities, short

of the legislature plainly acting outside of its constitutional authority, amount to

judicial overreach into the legislative process and consequently squelch the viability

of this Arlington Heights factor in North Carolina.

ii. The Fourth Circuit’s Decision in NAACP v. Raymond

As with Abbott, the majority here also labors to contort the Fourth Circuit’s

decision in Raymond. In Raymond, the Fourth Circuit reviewed a decision of the

United States District Court for the Middle District of North Carolina which granted

the plaintiffs’ motion for a preliminary injunction enjoining the enforcement of Senate

Bill 824 under the federal Equal Protection Clause. N.C. State Conf. of the NAACP v.

Raymond, 981 F.3d 295, 298 (4th Cir. 2020), rev’g N.C. State Conf. of the NAACP v.

Cooper, 430 F. Supp. 3d 15 (M.D.N.C. 2019). The Fourth Circuit reversed the federal

district court, finding that the lower court had “improperly disregarded” the principle

that a legislature’s “discriminatory past” cannot be used to condemn its later acts, by

“reversing the burden of proof and failing to apply the presumption of legislative good

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faith.” Id. Specifically, the Fourth Circuit determined that the federal district court

had “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.” Id. at 302. The Fourth Circuit analogized to Abbott, finding that:

The district court here made the same mistake as the panel in Abbott without even trying to distinguish the Supreme Court’s holding. Explaining that it is “ ‘eminently reasonable to make the State bear the risk of non- persuasion with respect to intent’ when the very same people who passed the old, unconstitutional law passed the new,” Cooper, 430 F. Supp. 3d at 32, the district court noted that the General Assembly did not “try[] to cleanse the discriminatory taint,” id. at 43, or “tak[e] steps to purge the taint of discriminatory intent,” id. at 35. . . . These were not merely “stray comments.” Abbott, 138 S. Ct. at 2325. “On the contrary, they were central to the court’s analysis,” id., for they made explicit the burden-shifting that the court engaged in while assessing the Arlington Heights factors.

Id. at 303 (first and second alterations in original). The Fourth Circuit also observed

that the federal district court repeatedly referenced the fact, throughout its Arlington

Heights analysis, that the legislature that enacted Senate Bill 824 was largely

composed of the same legislators who had passed House Bill 589. Id. at 304–05; see

Cooper, 430 F. Supp. 3d at 31 (“Plaintiffs’ more potent sequence-related argument is

less about ‘how’ than ‘who.’ ”); Cooper, 430 F. Supp. 3d at 35 (“[T]he legislative history

reveals that the General Assembly’s goals and motivations went virtually unchanged

in the time between H.B. 589 and S.B. 824. Rather than taking steps to purge the

taint of discriminatory intent, the bill’s supporters expressed their resolve to

circumvent McCrory and stave off future legal challenges.”).

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Just as the United States Supreme Court did in Abbott, the Fourth Circuit in

Raymond comprehensively explained that the historical discrimination exhibited by

the General Assembly that had enacted House Bill 589 was a relevant factor in

discerning the existence of present discriminatory intent on the part of the General

Assembly that had passed Senate Bill 824. Raymond, 981 F.3d at 305. The federal

appellate court cautioned:

None of this suggests that the 2013 General Assembly’s discriminatory intent in enacting the 2013 Omnibus Law is irrelevant. See Abbott, 138 S. Ct. at 2327. But the appropriate place to consider the 2013 Omnibus Law is under the “historical background” factor. See Arlington Heights, 429 U.S. at 267; see also Abbott, 138 S. Ct. at 2325 (finding that the historical background leading to the law’s enactment is but “ ‘one evidentiary source’ relevant to the question of intent” (quoting Arlington Heights, 429 U.S. at 267)). And yet the “historical background” section is the one part of the district court’s discriminatory-intent analysis where the court did not discuss the 2013 Omnibus Law.

Id. at 305. Finding that the federal district court’s legal errors had “fatally infected”

its findings, the Fourth Circuit reviewed the remaining evidence and determined

that, aside from historical background, the remaining factors of Arlington Heights did

not support a finding of discriminatory intent. Id. at 303. Specifically, the Fourth

Circuit acknowledged the federal district court’s finding that there were no

procedural irregularities leading up to the enactment of Senate Bill 824 and that

minority voters disproportionately lacked the forms of identification required by the

law before the federal appellate court determined that the federal district court had

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erred in discrediting the bill’s bipartisan support, the impact of the intervening

constitutional amendment, and the effect of the law’s mitigating features. Id. at 305–

10. The Fourth Circuit therefore reversed, explaining that it did not do so because

the federal district court weighed the available evidence differently than the federal

appellate court would have, but instead because “of the fundamental legal errors that

permeate[d] the [lower court’s] opinion.” Id. at 310–11.

As a previous composition of this Court noted, Raymond was decided in an

entirely different procedural posture and on an entirely different factual record. As

the trial court in the instant case acknowledged, quoting Holdstock v. Duke University

Health System, 270 N.C. App. 267, 280 (2020), “the [C]ourt of [A]ppeals cannot ask

questions that might help resolve issues or prompt responses necessary to create a

complete record.” For this reason, appellate courts rely upon the trial courts to

develop sufficient factual records from which the higher tribunals can make their own

determinations upon appellate review; furthermore, an appellate court’s

determinations will necessarily be premised upon the presence or absence of

sufficient record evidence, as opposed to some abstract absolute truth. Whereas the

trial court’s decision here was based on a full and final record developed after the

completion of a three-week bench trial, the federal district court in Cooper issued its

opinion based upon a preliminary pretrial record and without the benefit of much of

the evidence that was provided to the trial court in this case.

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As a result, the federal district court’s findings of fact, upon which the Fourth

Circuit based its own review, differed significantly from those made by the trial court

in the present case. For example, while the federal district court in Cooper found that

the events leading up to the passage of Senate Bill 824 lacked any “procedural

irregularity,” 430 F. Supp. 3d at 32, the trial court in Holmes made numerous findings

on the irregularities leading up to the enactments of both House Bill 1092 and Senate

Bill 824 based upon expert testimony that the federal district court in Cooper did not

receive. Likewise, the trial court here received and credited expert testimony

discussing the disproportionate impact that Senate Bill 824’s reasonable impediment

provisions would have on Black voters that was unavailable to the federal district

court in Cooper, and therefore to the Fourth Circuit in Raymond.

The trial court’s findings in this case flowed directly from the evidentiary

record before it, rather than from an improperly inverted assignment of the burden

of proof. Whereas the federal district court’s analysis in Cooper repeatedly paralleled

the Perez court’s improper legal standard nearly verbatim, the trial court in this case

never ascribed the “discriminatory taint” of House Bill 589 to the legislature that had

passed Senate Bill 824. Compare Cooper, 430 F. Supp. 3d at 43 (“[R]ather than trying

to cleanse the discriminatory taint which had imbued H.B. 589, the legislature sought

ways to circumvent state and federal courts and further entrench itself.”), and Cooper,

430 F. Supp. 3d at 35 (“Rather than taking steps to purge the taint of discriminatory

intent, the bill’s supporters expressed their resolve to circumvent McCrory and stave

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off future legal challenges.”), with Perez, 274 F. Supp. 3d at 649 (“Further, the

Legislature did not engage in a deliberative process to ensure that the 2013 plans

cured any taint from the 2011 plans.”). By contrast, the majority decision here largely

relies upon one instance in which the trial court supposedly inverted the evidentiary

burden; namely, where the trial court had found that Senate Bill 824’s substantive

departures from House Bill 589 were not made for the purpose of alleviating the

racially disparate impact that had been previously observed under House Bill 589. In

doing so, the trial court did not, however, ascribe the previous legislature’s intent to

that legislative body which had passed Senate Bill 824, nor did it purport by its order

that defendants were required to cleanse, purge, or cure any discriminatory intent

which had traversed from House Bill 589 to Senate Bill 824.

For these reasons, inasmuch as the Fourth Circuit’s decision in Raymond was

explicitly based on the federal district court’s “fundamental legal errors that

permeate[d] the opinion,” 981 F.3d at 311, and a full consideration of the particular

evidentiary record before the Fourth Circuit, Raymond provides no meaningful grist

for the majority’s mill: the trial court’s findings were derived from an entirely

different and more extensive evidentiary record, and the trial court never required

defendants to prove that they had purged Senate Bill 824 of the discriminatory taint

of House Bill 589.

C. The Majority’s Reconsideration of the Evidence

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The remainder of the majority’s opinion engages in an improper and self-

serving reweighing evaluation of the evidence presented to the trial court which bears

on disparate impact. While it is elementary that reweighing evidence upon appellate

review is fundamentally wrongful, the egregiousness of the majority’s act is

particularly pronounced since the case is back on rehearing. The correct standard of

review for a trial court’s findings of fact is highly deferential. “[T]he trial court’s

findings of fact . . . are conclusive on appeal if there is competent evidence to support

them, even [if] the evidence could be viewed as supporting a different finding.” In re

Estate of Skinner, 370 N.C. at 139 (quoting Bailey, 348 N.C. at 146). Findings of fact

“supported by competent, material and substantial evidence in view of the entire

record[ ], are conclusive upon a reviewing court and not within the scope [of its]

reviewing powers.” Id. at 139 (alteration in original) (quoting In re Revocation of

Berman, 245 N.C. at 616–17). Furthermore, a finding of “overwhelming” disparate

impact is not required under Arlington Heights. McCrory, 831 F.3d at 231. Instead,

the pertinent inquiry is merely whether Senate Bill 824 “bears more heavily” on Black

voters. Arlington Heights, 429 U.S. at 266 (quoting Washington, 426 U.S. at 242).7 In

7 The majority repeatedly cites cases which consider whether state legislative acts imposed a “substantial burden” upon the right to vote through requirements related to voter identification. Notably, these analyses occurred not under Arlington Heights but under separate constitutional principles which limit legislatures’ ability to encumber exercise of the constitutionally protected right to vote even when acting without racially discriminatory purpose. See, e.g., Lee v. Va. State Bd. of Elections, 843 F.3d 592, 605–06 (4th Cir. 2016); Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190–91 (2008). Although these cases have some bearing on what types of voter-related requirements and restrictions have been determined to be facially unconstitutional, they do not stand for the proposition that

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other words, whether the law actually “produces disproportionate effects.” Hunter, 471

U.S. at 227;8 see also McCrory, 831 F.3d at 231 (“[T]he district court’s findings that

African Americans . . . disproportionately lacked the photo ID required by SL 2013-

381, if supported by the evidence, establishes sufficient disproportionate impact for

an Arlington Heights analysis.”).

Here, the trial court received evidence over the course of a three-week trial

which included extensive expert testimony before determining that (1) Black voters

were more likely to lack qualifying forms of identification than white voters and (2)

the burdens of obtaining qualifying forms of identification and navigating the

reasonable impediment process fell more heavily upon Black voters than white

voters. Plaintiffs’ expert Professor Kevin Quinn showed that, similar to House Bill

589, Senate Bill 824 was very likely to have a disproportionate impact on Black

voters, who were approximately 39% more likely than white voters to lack qualifying

forms of identification; when the professor’s data analysis was restricted to active

voters, Black voters were more than twice as likely to lack qualifying identification

claimants under Arlington Heights must demonstrate the imposition of a substantial burden along racial lines. 8 In its newly proposed standard, the majority contends that the relevant inquiry is

whether a law produces a meaningful disparate impact along racial lines, separate and apart from the court’s determination of whether the legislature acted with discriminatory intent. It is unclear what, if any, additional burden this standard imposes upon plaintiffs, but this too is a departure from Arlington Heights, which provided discriminatory effect as one relevant but not all-consuming factor in its constitutional analysis. 429 U.S. at 265 (holding that, although not “irrelevant,” disproportionate impact is “not the sole touchstone of an invidious racial discrimination” (quoting Washington, 426 U.S. at 242)).

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as white voters. A majority of this Court concludes that Professor Quinn’s evidence

was “fatally deficient” because he was unable to access data concerning all forms of

qualifying identification9 even though he testified that, while accounting for these

forms of identification would likely decrease the absolute number of individuals

lacking any form of qualifying identification as defined by Senate Bill 824, the

ultimate racial disparity was likely to be even greater than originally estimated. 10

The trial court also heard testimony indicating that Senate Bill 824’s ameliorative

provisions failed to sufficiently mitigate the law’s disparate impact on Black people.

The trial court considered and credited evidence from the implementation of House

Bill 589 which indicated that the bill’s similar reasonable impediment provision had

not been “uniformly provided to voters” and that the reasonable impediment process

was “susceptible to error and implicit bias.” To this end, the trial court found that

those voters whose ballots were not counted were “much more likely” to be Black than

the electorate’s ballots as a whole. Finally, the trial court specifically discounted the

testimony of defendants’ experts as unpersuasive and incapable of rebutting the

abovementioned findings.

9 Specifically, Professor Quinn was unable to acquire identification databases for passports, military IDs, and veterans’ IDs. He noted that these databases, by their very nature, contain highly confidential information and are not typically available for access. 10 This is due to the fact that these forms of identification are more likely to be held

by whites than Blacks; for example, the trial court found that white voters are 2.4 times as likely to possess unexpired passports as Black voters.

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In order to posit that these findings were not supported by competent evidence,

the majority usurps the trial court’s fact-finding function through its own credibility

determinations and assigning its own weights to the plethora of evidence presented

to the trial court. Where the majority cannot legitimately deny the trial court’s

statistical findings, the majority simply determines them to be overstated. In doing

so, the majority both abandons the applicable standard of review and inflates

plaintiffs’ burden under Arlington Heights. See In re I.K., 377 N.C. 417, 426 (2021)

(“[T]his Court reviews the trial court’s order to determine whether competent

evidence supports the finding of fact and cannot reweigh the evidence when making

this determination.”); In re J.A.M., 372 N.C. 1, 11 (2019) (holding that because “the

trial court is uniquely situated to make . . . credibility determination[s] . . . appellate

courts may not reweigh the underlying evidence presented at trial”).

III. Conclusion

Our precedent, stretching back nearly 150 years into this Court’s history,

makes it exceedingly clear that those few and distinguished cases brought back before

the Court for rehearing ought to be reconsidered only with tremendous caution.11

11 See Watson v. Dodd, 72 N.C. 240, 240 (1875) (“The weightiest considerations make it the duty of the Courts to adhere to their decisions. No case ought to be reversed upon petition to rehear, unless it was decided hastily, or some material point was overlooked, or some direct authority was not called to the attention of the Court.”); Weisel v. Cobb, 122 N.C. 67, 69 (1898) (“As the highest principles of public policy favor a finality of litigation, rehearings are granted by us only in exceptional cases, and then every presumption is in favor of the judgment already rendered.”); Hicks v. Skinner, 72 N.C. 1, 2 (1875) (“[U]nless we have clearly mistaken some important fact, or overlooked some express and weighty

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Indeed, every presumption is construed in favor of the Court’s previous holding, and

we allow ourselves to upset our previous judgment if, and only if, we are able to

determine that the previous majority either clearly mistook some important fact or

overlooked an express and weighty authority in contradiction to its prior ruling. This

principle exists precisely to ensure that the Court’s judgments are not subject to

immediate reversal upon a change in the direction of political winds. See Weisel, 122

N.C. at 70; Devereux v. Devereux, 81 N.C. 12, 16–17 (1879). Rather than abide by that

lofty philosophy which has always permeated the fabric of this Court, the majority

instead prefers to dismember both state and federal jurisprudence in order to

demonstrate its alacrity to brandish its audacity to achieve its purposes, all while

claiming to act in the name of judicial restraint. Perhaps the Chief Justice said it best

when he once chose to dissent from a majority opinion of this Court when decrying

judicial activism: “The ultimate damage to our jurisprudence and public trust and

confidence in our judicial system is yet to be determined.” Robinson, 375 N.C. at 214

(Newby, J., dissenting).

For these reasons, I respectfully dissent.

Justice EARLS joins in this dissenting opinion.

authority, we must adhere to our decisions. We consider every case with care, and decide nothing with a venture.”).

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