The Docket: Another Round of Legal Battles Over Digital IDs

Twice in less than a month, the state Court of Appeals panel issued an unsigned public ruling overturning a lower court decision that will impact election processes.

On September 27, an appeals court panel blocked UNC-Chapel Hill students and employees from using a digital ID to vote during the coming elections.

The decision came a week after Wake County Superior Court Judge Keith Gregory denied a request from the state Republican Party and the Republican National Committee to ban the use of the IDs.

Voting has already started for people overseas and in the military who have requested absentee ballots. In-person early voting begins October 17, and all voters will be required to show a photo ID.

The Democratic majority on the state Board of Elections approved the use of the digital UNC IDs on August 20, after Executive Director Karen Brinson Bell said they met all of the state requirements.

The state GOP and National Republican Committee filed a lawsuit challenging the decision on September 10, adding to a flurry of recent challenges to  election processes in this political swing state.

It was the first time the state elections board approved the use of  digital IDs for voting, but it came in a heated party-line vote that Republicans vehemently opposed. The university is distributing physical ID cards to students and employees who ask for them.

It was not immediately clear whether the state elections board would appeal the decision to the state Supreme Court, where Republicans hold a 5-2 majority.

Eleven of the 15 judges on the state Court of Appeals are Republicans, but which judges wrote the most recent decision won’t become public until after the November elections.

The appellate court typically releases the names of the judges who made the unsigned rulings 90 days after the order is released, the clerk of the state Court of Appeals told The Assembly. It’s not clear why the judges’ names were not included on the ruling.

The Court of Appeals ruling  last month overturning a lower court’s decision to keep Robert F. Kennedy Jr.’s name on state ballots was also unsigned.

Ultimately, the state Supreme Court ruled to remove the former presidential candidate’s name from ballots, even though nearly 2 million had already been printed for overseas voters.

— Anne Blythe

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That Smell

The North Carolina Court of Appeals once again ruled that the legalization of hemp has no bearing on whether law-enforcement officers can still use the “smell of marijuana” to justify searching someone’s car. 

As we wrote in April, hemp looks and smells exactly like marijuana, and no trained law-enforcement officer or K9 dog can tell the difference. There’s also no road-side test that can distinguish the two. That has led to a legal quandary that the state appellate courts have largely evaded, typically ruling to date that the searches were legal because officers could point to something more than just smell as probable cause. 

The Court of Appeals appeared to have settled this issue in August with the case In The Matter of: J.B.P., which involved two Beaufort County sheriff’s deputies searching a teenager’s car after saying they smelled marijuana. One of the officers claimed they went to a “hemp training program” where he learned to distinguish between hemp and marijuana. The court upheld the search, saying odor alone was sufficient. But on August 30, the Court of Appeals withdrew that ruling for “further consideration,” with no explanation. 

But in the ruling State v. Schiene last week, the Court of Appeals said hemp legalization doesn’t matter when determining if the “odor of marijuana” is enough to justify searching someone’s property. 

This case deals with a September 2020 search in Charlotte. Cody Bruce Schiene had parked his SUV at the Baymont Inn near the airport, where he said he was a guest. His nephew was in the passenger seat. Two Charlotte-Mecklenburg police officers who were on patrol approached the SUV, which was backed into a parking space away from other vehicles. The officers found that was suspicious, leading them to believe Schiene was involved in criminal activity and that he parked that way to ensure a quick getaway. 

When the officers got close to the vehicle, they said they smelled unburned marijuana. That prompted them to place Schiene and his nephew into custody and search the vehicle, where they seized what they claimed was marijuana, digital scales, and a handgun. Schiene was charged and later convicted of possession of a firearm by a felon, possession of a stolen firearm, and being a habitual felon. He was never charged with marijuana possession. 

The Court of Appeals ruled that officers had probable cause to search based on the suspicious way Schiene parked and the “smell” of marijuana. And even if it was just the smell, that would still be enough, the court ruled in an unsigned opinion. 

Phil Dixon, a professor at UNC School of Government, noted that the ruling cites a 1981 state Supreme Court ruling that came out years before the legalization of hemp. The Court of Appeals says it is bound by that decision, which says odor alone is sufficient. The state Supreme Court has not ruled on the issue since, Dixon said. 

“The Supreme Court is the one that has to overturn Supreme Court precedent,” Dixon said. 

The high court might get a whiff with State v. Dodson, which is currently pending before it. 

—Michael Hewlett

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A Trump-Aligned Lawyer in N.C.

Last week, The Intercept published an in-depth article on former North Carolina Chief Justice Mark Martin that examines his role in advising former President Donald Trump’s efforts to overturn the results of the 2020 election.

“As another election looms, one that is shaping up to be settled by courts, it’s crucial to examine the legal players who tried to reverse Trump’s defeat in 2020,” reporter and media law attorney Shawn Musgrave wrote in the article.

“But unlike [John] Eastman and other Trump-aligned lawyers,” he wrote, “Martin has largely escaped scrutiny for his contribution to the Big Lie effort, which culminated in a nine-minute call as Trump and his allies were still looking for ways to pressure former Vice President Mike Pence into handing Trump the election.”

Martin, now dean of High Point University’s law school, was dean and a professor of the Regent University School of Law in Virginia Beach at the time.

Martin declined to respond to questions from the Intercept about his role in shaping some of the controversial legal arguments posed as Trump tried to maintain power after losing to Joe Biden. He did not respond to questions on that topic from The Assembly for a January 2023 article, either.

The Intercept did an extensive review of records from the House Select Committee to investigate the January 6 assault on the Capitol and other sources, finding that Martin was more heavily involved with the team of attorneys helping Trump challenge the election results than previously reported. He was introduced into the mix by former White House Chief of Staff Mark Meadows, who knew him through their mutual North Carolina political connections.

—Anne Blythe

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