Common Cause sues to allow unaffiliated voters to serve on N.C. elections board

Carolina Journal photo by Mitch Kokai
  • Common Cause and four individuals are suing in federal court to throw out a state law that blocks unaffiliated voters from serving on the N.C. State Board of Elections.
  • Unaffiliated voters outnumber Democrats and Republicans in N.C. registration.

Left-of-center activist group Common Cause has filed a federal lawsuit challenging a state law that blocks unaffiliated voters from serving on the N.C. State Board of Elections.

The suit, Common Cause v. Moore, asks a federal court to declare the law “unconstitutional and void.” Common Cause also asks the court to block the N.C. General Assembly from enacting any new law for state elections board appointments that “discriminates against unaffiliated voters or penalizes them based on their decisions not to register as Republican[s] or Democrats.”

The current State Board of Elections has five members. N.C. Gen. Stat. § 163-19 requires the governor to appoint all five members from the two major political parties. No more than three members can serve from one party. In practice, this means that the governor’s party holds a 3-2 majority on the board.

Common Cause and four individual voters argue that the law violates unaffiliated voters’ rights under the First and 14th Amendments to the U.S. Constitution.

More than 2.57 million North Carolinians are registered as unaffiliated. More voters are registered as unaffiliated than as Democrats (2.49 million) or Republicans (2.21 million). Unaffiliated voters make up the largest voting group in 19 of North Carolina’s 100 counties, according to the complaint.

“The state law barring plaintiffs and all other unaffiliated voters from serving on the State Board serves no public or valid purpose but instead is a means to entrench the Democratic and Republican political parties in power and give them exclusive control over the supervision, management, and administration of the elections system,” according to Common Cause’s complaint. “This law is ill-conceived because it renders ineligible a large pool of talented and able citizens from service on the State Board.”

“This law is arbitrary and capricious and not rational because it excludes from service on the State Board voters who are not aligned with a political party and are thus more likely to fairly and impartially participate in the supervision, management, and administration of the elections system,” the complaint added.

“This law is destructive of our democracy because it undermines citizens’ confidence in the elections system,” Common Cause argued. “Limiting service on the State Board to members of the Democratic and Republican parties encourages citizens to believe that election officials are chosen to look out for their parties’ interests rather than see that elections are conducted fairly for all.”

The challenged law limits unaffiliated voters’ First Amendment right to “freedom of speech, and limits their right to freedom of association” by requiring them to affiliate with a political party to serve on the elections board, the complaint alleged.

The law violates the 14th Amendment “by denying them the same opportunity as registered Democrats and Republicans to be a member of the State Board of Elections and participate equally in the supervision, management, and administration of elections in North Carolina.”

Common Cause contends the challenged law “is not rationally related to achieving any legitimate, valid, important, or compelling governmental interest.”

Two well-known figures in the N.C. legal community represent Common Cause. Edwin Speas spent 32 years in the N.C. Justice Department, including work as the state’s chief deputy attorney general. Speas spent years defending Democrats’ election maps in redistricting legal fights. He has fought against Republican maps since the GOP gained majorities in the General Assembly.

Michael Crowell retired from the UNC School of Government after working there from 1970 to 1985 and again from 2007 to 2015. Crowell served as executive director of North Carolina’s Commission for the Future of Justice and the Courts.

Crowell has sued state officials in the past over the composition of the state elections board.

No date has been set for an initial hearing in the new Common Cause case.