The following is a guest post from Rich Bernstein:

Imagine that a state’s statute (or constitution) required a photo ID to vote, but only in certain counties that had a history of consistently voting for Democrats by wide margins.  Everyone would agree that such a law violated the Equal Protection Clause, and the First Amendment to boot for the obvious viewpoint discrimination.  But that is how the North Carolina Supreme Court applied a statewide statute in April 2025, in its decision concerning a close November 2024 election for one seat on that Court.  All fair-minded Americans should be very afraid of the precedent that be would be set for all elections, including elections for federal offices, if the federal courts do not invalidate this North Carolina Supreme Court decision.

The most pertinent facts are these: Counts and recounts by the North Carolina Board of Elections showed that in the November 2024 election for one seat on the North Carolina Supreme Court, the Democrat Allison Riggs had defeated the Republican Jefferson Griffin by 734 votes.  Five months after the election, and contrary to what voters were told by state election officials before the election, the North Carolina Supreme Court (by a 4-2 vote) interpreted a North Carolina statute not to allow military and overseas voters to cast a valid absentee ballot without providing a photo ID.  But, critically, for purposes of the 2024 election, this rule would apply only to invalidate votes of voters from a county where Republican Griffin was challenging the vote count.  Griffin had challenged this omission for voters from only six counties, each of which had voted in 2024 and prior elections heavily for Democrats—not the other 94 counties where over 25,000 votes in 2024 had come from military and overseas voters.  (The North Carolina Board of Elections later said Riggs had timely challenged this omission only in Democrat-voting Guilford County.)   The North Carolina Supreme Court gave the disqualified voters 30 days to “cure” their omission by providing photo ID.  The federal Fourth Circuit has stayed the start of this 30 days while the federal district court rules on whether the North Carolina Supreme Court’s application of North Carolina law violates federal law, including the First Amendment, Due Process, and Equal Protection guarantees of the federal Constitution.

One need look no further than the opinions in Bush v. Gore, 531 U.S. 98 (2000), to know that even without the obvious retroactivity problem of changing the rules after the election, the North Carolina Supreme Court has violated the federal Equal Protection Clause.  In Bush v. Gore, the state was recounting by hand punched ballots to see if enough of an impression had been made on a ballot to count a vote for President even though a voting machine scan had not recorded a valid vote.  At least seven Justices agreed on the basic Equal Protection principle: “the State may not, by … arbitrary and disparate treatment, value one person’s vote over another.”   531 U.S. at 105 (per curiam); accord id. at 134 (Souter, J., dissenting); id. at 145-46 (Breyer, J., dissenting).  In particular, these Justices further agreed that it violated equal protection for “identical types of ballots”—in that case, partially punched ballots–to be valid in one county but invalid in another county using different standards.  Id. at 134 (Souter, J. dissenting); accord id. 106-07 (per curiam); id. at 145-46 (Breyer, J., dissenting).

So too in the North Carolina case.  For the 2024 election, the North Carolina Supreme Court would not have violated equal protection by enforcing a statewide photo ID requirement for votes cast by military and overseas voters who come from all counties.  But the North Carolina Supreme Court violated equal protection by enforcing photo ID only for those voters who come from some counties.  Even moreso as those voters are from only one or more counties that have voted for Democrats. 

Nor does it make any difference that the North Carolina Supreme Court was approving Republican Griffin’s strategy to limit the remedy he sought under a statewide law to voters from only some counties.  It is no defense to an equal protection violation by a court that the court’s discrimination arose from a litigant’s proposal, rather than the words of a state statute.  As Bush v. Gore itself aptly understated, that a state Supreme Court had reached its discriminatory decision in an election dispute as the result of one side’s “own urging … does not diminish the constitutional concern.”  Id. at 108.   Suppose a candidate sought to enforce a state’s photo ID requirement, but only to reject votes of white voters or registered Republicans.  A state court that upheld that claim because that is the extent of the remedy the litigant requested would surely violate the Equal Protection Clause.

Nor does a 30-day “cure” period wipe away the equal protection violation.  Again, consider a state photo ID statute that a court enforced against only white voters or registered Republicans.  Neither giving those voters an opportunity to cure of 30 days nor 1000 days would wipe away the violation of the Equal Protection Clause. The Clause was violated by singling out those voters in the first place, whether the state’s discriminatory approach was more or less difficult to get around.

The precedent here would imperil every future close election.  This is because it is the same Equal Protection Clause that applies to a state’s election for presidential electoral votes or members of Congress as for a state’s election of its own officials.  Under the North Carolina Supreme Court’s precedent, partisan state legislatures could adopt voting preconditions that applied only in counties that happened to vote historically for one party.  And where statutory preconditions facially applied statewide, as in North Carolina, candidates could seek to have courts enforce those preconditions only in counties where they would lose.  Indeed, because the North Carolina Supreme Court approved this approach five months after an election, losing candidates of both parties could belatedly cherry-pick both the preconditions they sought to enforce and the disfavored counties to gerrymander a belated statewide “victory” when they had lost by the rules in place statewide on election day.

The North Carolina Supreme Court’s decision shows that we must turn back from where election litigation is heading.  Winning elections matters.  Many important decisions that affect all of our lives, sometimes every day, turn on who wins.  The stakes are so great that it is unsurprising that many candidates adopt a win-at-all-costs attitude, including towards election rules and election litigation.  But none of that justifies any court, even when its members are themselves elected, from sacrificing any constitutional provision, much less the Equal Protection Clause.  That Clause is our Constitution’s equivalent of the golden rule.  As the Bible says:  “Therefore, all things whatsoever you would that men should do to you, do you even so to them: for this is the law and the prophets.”  Matthew 7:12.  It violates equal protection for any statewide voting rule to be enforced differently in Democratic-leaning counties than in Republican-leaning counties.