Common Questions and Straight Answers about Voter ID Bills
February 12, 2012
In the 2011 Legislative Session, both houses of the North Carolina Legislature passed HB 351, which would have required all North Carolinians to present a valid photo I.D. when voting.[i] Soon thereafter, Governor Perdue vetoed the bill objecting on the basis that “those who are eligible to vote have a constitutionally guaranteed right to cast their ballots, and no one should put up obstacles to citizens exercising that right.”[ii] The legislature did not override Governor Perdue’s veto.
The issue, however, is not completely quashed. Could the legislature constitutionally pass multiple local bills, which are not subject to the governor’s veto, which would require North Carolinians in select areas to show a photo I.D. when voting? Some county commissions have passed resolutions asking the General Assembly to do just that. Below is a discussion of the constitutional questions such a tactic raises.
I. What are Local Bills and why might the General Assembly use them?
“Local Bill” is a term of art with a legal definition. The North Carolina Supreme Court has identified a local bill as that which is “confined to territorial limits other than that of the whole state, . . ., or is directed to a specific locality or spot, as distinguished from a law that operates generally throughout the whole state.”[iii] Local Bills, if codified, become “local acts” which are interchangeable with the terms “special act,” “special law,” “public-local act,” and “private act.”[iv] Article II, section 22, subsection 6 of the North Carolina Constitution expressly limits the application of a local bill to fewer than 15 counties.[v]
Under Article II, section 22, every bill passed by the General Assembly is subject to the governor’s veto with six exceptions.[vi] One of those exceptions is Local Bills. The governor has no power to veto a local bill except:
When the proposed local bill is signed by the presiding officers of both houses, the governor may still veto if it:
(1) Would extend the application of a law signed by the presiding officers during the that two year term of the General Assembly so that the law would apply in more than half the counties in the State, or
(2) Would enact a law identical in effect to another law or laws signed by the presiding officers during that two year term of the General Assembly that the result of those laws taken together would be a law applying in more than half the counties of the State.[vii]
According to this subsection of the State Constitution, the General Assembly could enact multiple local bills in order to bypass the governor’s veto. However, they would be forced to keep the application of the bills to 50 counties or less.
II. Is the General Assembly Limited in Enacting Local Bills?
Article II, section 24, subsection 1 of the North Carolina Constitution prohibits the General Assembly from enacting local bills concerning 14 express subject matters relating to many of the most common subjects of legislation.[viii] North Carolinians added this provision to the State Constitution in 1916 motivated by the desire for the General Assembly to legislate for the state as a whole instead of a collection of communities.[ix] Not included on the list is voter registration or anything pertaining to elections in general. It is also worth noting that the limitations on the subject matters of local bills was enacted decades before the governor was given a veto power in 1996.
III. What does the North Carolina Constitution Explicitly Say about Voting Laws?
Article VI, section 3 of the North Carolina Constitution states that “[t]he General Assembly shall enact general laws governing the registration of voters.”[x] Nowhere in the constitution is the General Assembly expressly instructed on how they must legislate on voting procedures, such as protocol for voters during the act of voting. It should be emphasized that registering to vote is separate from the act of voting. Therefore, the requirement that laws governing registration be “general laws” would not necessarily foreclose the use of local bills to address the act of voting. However, as discussed below, the use of local bills could face other constitutional hurdles.
IV. What is the Impact of the Equal Protection Clause and Local Election Acts?
Article I, section 19 of the North Carolina Constitution says in part “No person shall be denied the equal protection of the laws . . . .”[xi] In 2002, North Carolina Chief Justice Lake, writing for the majority declared, “[i]t is well settled in this State that ‘the right to vote on equal terms is a fundamental right.’”[xii] Two years earlier in the landmark case Bush v. Gore, United States Chief Justice William Rehnquist stated for the plurality:
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of the exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.[xiii]
In light of these two court decisions and other relevant cases, any legislation requiring only some North Carolina voters to present an I.D. when voting would likely be challenged as violative of both the Federal and State Constitution’s Equal Protection Clauses.
The constitutional mandate, found in both the federal and state constitutions, known as “separation of powers” requires that the three branches of the government interfere with each other as little as possible. This means the courts can only overturn legislative or executive action if its constitutionality is challenged and it fails the applicable standard of review. The appropriate standard used by the court will depend on the rights allegedly infringed upon by the challenged government action.[xiv] Most government action does not infringe on a fundamental right or target a specific class of people. In such circumstances, the courts will use the most deferential standard called “rational basis review” or “rational review.” Under this standard, the challenged government action will be upheld as constitutional so long as it is rationally related to a legitimate government interest.
If the action infringes on a fundamental right, such as voting, the courts use a heightened standard of review known as “strict scrutiny” to weigh the constitutionality of the action.[xv] Under “strict scrutiny,” government action is constitutional only if it is justified by a compelling governmental interest, is narrowly tailored to achieve that interest, and is the least restrictive means to achieve that interest. Compelling interest is a term of art synonymous with ‘crucial’ or ‘necessary.’ Government action reviewed under strict scrutiny is less likely to be upheld as constitutional than action reviewed under the more deferential rational review standard.
The United States Supreme Court has conclusively declared that the prevention of voter fraud “is a legitimate and compelling government goal.”[xvi] The same court has also ruled that a statewide voter I.D. requirement in Indiana, similar to the one the North Carolina General Assembly tried to pass last year, is constitutional.[xvii] In that same case, Justice Antonin Scalia, writing a concurring opinion, stated that the burden of presenting a valid photo I.D. for Indiana voters is not severe because photo I.D.’s are free in that state. “The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not even represent a significant increase over the usual burdens of voting.”[xviii] Whether or not the burden becomes significant in North Carolina, where a photo I.D. is $10,[xix] would be a question for the court. If North Carolina reduced or eliminated the costs associated with obtaining a photo I.D., the State would further reduce any alleged burden created by the I.D. requirement.
Could the State justify these local bills as an effort to prevent voter fraud? Maybe. The State could enact statewide photo I.D. requirements, but the use of local bills to implement voter I.D. requirements in some, but not all, counties is more problematic. If North Carolina decides to use local bills to enforce voter I.D. requirements in some North Carolina counties, the State would have to show a compelling purpose for choosing some counties over others and the State would also have to show that the I.D. requirements are necessary as a means for accomplishing that end.
[i] Jim Morrill & Michael Biesecker, Voter ID requirement passes Senate, News & Observer, June 16, 2011, available at http://www.newsobserver.com/2011/06/16/1277374/voter-id-requirement-passes-senate.html.
[ii] Press Release, Office of Governor Bev Perdue, Governor Perdue Vetoes House Bill 531 (June 23, 2011) available at http://www.governor.state.nc.us/NewsItems/PressReleaseDetail.aspx?newsItemid=1888.
[iii] McInttyre v. Clarkson, 254 N.C. 510, 517-18, 119 S.E.2d 888, 893 (1961).
[iv] State v. Smith, 265 N.C. 173, 177, 143 S.E.2d 293, 296 (1965).
[v] N.C. Const. art. II, § 22(6).
[vi] N.C. Const. art. II, § 22.
[vii] N.C. Const. art. II, § 22(6).
[viii] N.C. Const. art. II, § 24(1).
[ix] Williams v. Blue Cross Blue Shield, 357 N.C. 170, 185-6, 581 S.E.2d 415, 427 (2003).
[x] N.C. Const. art. VI, § 3 (emphasis added).
[xi] N.C. Const. art. I, §19.
[xii] Stephenson v. Bartlett, 355 N.C. 354, 378, 562 S.E.2d 377, 393 (2002).
[xiii] Bush v. Gore, 531 U.S. 98, 104-5, 121 S.Ct. 525, 530 (2000).
[xiv] United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S. Ct. 778, 784 n. 4 (1938).
[xv] Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944).
[xvi] Dunn v. Blumstein, 405 U.S. 330, 345, 92 S. Ct. 995, 1004 (1972).
[xvii] Crawford v. Marion County Election Bd., 553 U.S. 181, 128 S. Ct. 1610 (2008).
[xviii] Id., 553 U.S. at 209, 28 S. Ct at 1627 (Scalia, concurring).
[xix] See http://www.dmv.org/nc-north-carolina/id-cards.php.