By some accounts, North Carolina will become the first state in the nation to start its primary voting process in 2020, when absentee ballots begin to go in the mail today (Monday, January 13). But the status of voter ID may still be unsettled, thanks to another last-minute legal request from state House Speaker Tim Moore and Senate President Pro Tem Phil Berger.

The top leaders of both legislative chambers are trying to revive the photo ID requirement for the primary voting process that begins today. They filed court papers Friday seeking an “emergency stay” of the U.S. District Court order December 31 which put the photo ID requirement on hold as racially discriminatory.

U.S. District Court Judge for the Middle District of North Carolina Loretta Biggs issued that injunction barring the implementation of the voter ID law. She found that it was likely the challengers of the law would win on their claim that the law was unconstitutional because it was motivated in part by racially discriminatory intent.

The injunction was effective immediately, and was expected to last at least through the primary voting, since the trial would not occur until afterwards. Attorney General Josh Stein, representing the State of North Carolina, announced that he would not appeal the injunction until after the primary, in order to avoid voter confusion in the process of absentee and early voting. The state Board of Elections (SBE) has already announced the new voter ID requirements would not be in effect for the primary voting process. 

Moore and Berger reacted furiously to both the injunction and Stein’s announcement that he would not immediately appeal. On Friday, January 10, Moore’s and Berger’s lawyers filed a new challenge to the injunction in District Court. There is no word yet on when or if Judge Biggs will rule on their motions prior to the primary. Both Moore and Berger had previously sought to intervene in the case, which Biggs rejected. Friday’s filings included a new request to be admitted as party intervenors to the case.

Given the lack of evidence that voter impersonation fraud has ever affected the outcome of any election in North Carolina, it is difficult to find a reason for Moore and Berger’s urgency other than raw partisan politics. All available evidence points to voter ID laws doing nothing but adding a new barrier to discourage legitimate voter participation in elections. (The 2018 absentee ballot scandal in the Ninth Congressional district election involved other fraud that would not have been affected by photo ID requirements.)

It is considered unlikely that Judge Biggs will add confusion to the primary voting process by staying her own recent ruling at this late hour. Observers expect the Moore-Berger legal strategy relies on appealing her denial to the federal Court of Appeals, or even ultimately to the U.S. Supreme Court.