Voter ID lawsuits getting a bump from federal judge

Feb. 22, 2014 @ 10:40 AM

WINSTON-SALEM — A federal judge tried Friday to speed up the flow of documents in three lawsuits challenging North Carolina's voter ID and elections overhaul law.

Several advocacy groups, voters and the U.S. government sued in August and September to block provisions of the law that they argue are racially discriminatory and violate the U.S. Voting Rights Act. Those provisions include a photo identification requirement to voter in person, reducing the number of early voting days from 17 to 10 and eliminating same-day voter registration during the early-voting period.

U.S. District Court Magistrate Judge Joi Peake already had determined in December the combined lawsuits wouldn't go to trial until mid-2015. However, plaintiffs' attorneys are now anxious to collect documents and data they argue lawyers for state agencies and Gov. Pat McCrory aren't giving them.

They face a May deadline to seek an injunction blocking enforcement of the provisions for the November elections. An injunction hearing likely will occur in early July. Voter ID isn't required until 2016, but preparations already have started.

"Things are lingering. We do not have the luxury of time," Dan Donovan, a lawyer representing the state chapter of the NAACP in the lawsuit, told Peake during the 3½-hour court hearing in Winston-Salem. He added later: "Our big concern is, let's get going."

The plaintiffs have requested documents, emails and electronic communications about how the wide-ranging election law was developed and how it's now being carried out. It was approved by Republicans last summer.

Peake told attorneys on both sides they have until early next week to come up with a method to begin moving more of the documents to defense attorneys, or she could start setting hard deadlines for the state to comply.

Defense attorneys say they've generated some paper documents, including thousands of pages laying out how the measure worked its way through the General Assembly to McCrory's desk last August. However, the plaintiffs say they have yet to receive one email or electronic document.

McCrory's office only has provided three paper documents, each of which was accessed from his website, said Allison Riggs, representing the League of Women Voters of North Carolina. "There's no reason the governor shouldn't release more than three documents to date," Riggs said.

Phil Strach, a private attorney helping represent the state, said officials have collected 700,000 individual electronic files in response to the requests. Reviewing them takes time and involves state employees with other responsibilities.

"This is not a suit against a private company that can drop what it's doing," Strach said. The documents from McCrory's office, the General Assembly, State Board of Elections and Department of Transportation also must be examined to determine whether they should be withheld as confidential, such as for attorney-client privilege.

Other documents also could be withheld due to a legal doctrine that gives legislators the privilege to keep private internal files. More than a dozen state legislators — including House Speaker Thom Tillis and Senate leader Phil Berger — have asked that subpoenas seeking more records and correspondence from them be stopped based on legislative immunity.

Except for exceptions in criminal cases and redistricting, "we think the case law is clear that legislators cannot be forced to offer evidence without his or her consent," North Carolina Senior Deputy Attorney General Alec Peters told Peake.

Denise Lieberman, another NAACP attorney, disagreed, saying such a blanket nondisclosure would stifle people making claims alleging intentional discrimination under the Voting Rights Act.

Peake asked many questions but didn't rule on the motion, asking for additional briefs from the attorneys next week.

The Rev. William Barber, president of the North Carolina conference of the National Association for the Advancement of Colored People, said later he considered Friday's hearing a victory because Peake did not block the subpoenas out of hand. The judge also required the state to provide documents dated after the voting law was signed in August, he said.