Cooper asks federal court to dismiss unaffiliated voters’ suit against elections board

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  • Gov. Roy Cooper is asking a federal judge to dismiss a lawsuit from unaffiliated voters who want to serve on the State Board of Elections.
  • Cooper, a Democrat, filed a motion to dismiss the case roughly two months after Republican legislative leaders made the same request.
  • Left-of-center activist group Common Cause and five individual unaffiliated voters challenge the current law dictating membership of the elections board. It limits membership to members of the state's two major political parties.

Gov. Roy Cooper is urging a federal judge to dismiss a lawsuit from unaffiliated voters who want the right to serve on the N.C. State Board of Elections. Cooper, a Democrat, filed a motion to dismiss the case roughly two months after Republican legislative leaders made the same request.

The left-of-center activist group Common Cause is working with five individual unaffiliated voters to challenge the state law dealing with elections board appointments.

“Plaintiffs seek a declaration that the law violates their First Amendment and Equal Protection rights and assert that the law unconstitutionally prohibits unaffiliated voters from being appointed to the Board. … However, Plaintiffs lack standing to sue. Moreover, even if they do have standing, Plaintiffs have not sufficiently alleged that Section 163-19 is unconstitutional,” according to a brief from N.C. Department of Justice lawyers representing Cooper.

“Indeed, Plaintiffs as a matter of law cannot demonstrate that Section 163-19 violates
the First Amendment because Board positions are related to political interests, and partisan
affiliation is an appropriate requirement for the position,” Cooper’s brief added. “Furthermore, Section 163-19 does not discriminate against a protected class and is rationally related to a legitimate state interest. Accordingly, this Court should grant Governor Cooper’s motion to dismiss.”

On the standing issue, Cooper rejects the claim that Common Cause and its fellow plaintiffs can represent all unaffiliated voters. Nor can they show that the law establishing the elections board harms them, according to the governor’s brief.

“Other than alleging a generalized, vague interest in serving on the Board, Plaintiffs have alleged nothing that would differentiate them from the millions of other registered, unaffiliated voters,” state Justice Department lawyers wrote. “That is insufficient to show standing. For example, Plaintiffs have not alleged that they have sought local election board positions for which they are eligible. Nor have they alleged that they would have been nominated (and selected by the Governor) to serve on the Board if not for Section 163-19.”

The unaffiliated voters try to make an equal protection claim “by framing their right to be considered for appointment to the Board as an extension of their fundamental right to vote. However, the fundamental right to vote has never been extended so far as to ensure that every registered voter has a constitutional right to be selected to a state administrative body that oversees elections,” according to Cooper’s brief. “Indeed, the Supreme Court has rejected similar attempts to broaden the fundamental right to vote to encompass activities that are not strictly necessary for the exercise of the franchise.”

Republican legislative leaders made their own arguments against the lawsuit in March.

“Plaintiffs argue that by not allowing unaffiliated voters to serve on the State Board, their First Amendment and Equal Protection rights are violated. However, these Plaintiffs lack standing to bring those claims. And Defendants, members of the legislative branch, who enact but do not enforce laws, are immune from suit for such claims in federal court,” wrote attorney Martin Warf, representing the top officers in the N.C. House and Senate.

“Even if Plaintiffs could overcome these issues, the federal constitution does not support such associational claims, and, these claims run headlong into the North Carolina Constitution, which has been interpreted by North Carolina courts to require that the Governor be able to control the SBOE,” Warf added. “Counterbalancing one major party’s views and priorities on the Board with that of the other major party’s views, therefore, is a rational approach to election administration adopted by numerous other states.”

Common Cause and its fellow plaintiffs responded to lawmakers’ objections in April.

“Common Cause and five of the 2.6 million unaffiliated voters in North Carolina bring this action. They ask the Court to declare unconstitutional the state law requiring all members of the State Board of Elections to be registered as Democrats or Republicans and barring unaffiliated voters from serving — even though unaffiliated voters outnumber both parties,” wrote attorneys Edwin Speas and Michael Crowell. “The statutes violate plaintiffs’ First Amendment rights to free speech and association and their Fourteenth Amendment right to equal protection.”

“The electorate differs dramatically today from when the State Board was first established,” Speas and Crowell wrote. “Currently more voters are registered unaffiliated than for either party. Thirty-five percent are unaffiliated, and the percentage will grow as 42 percent of voters aged 25–40 are unaffiliated, as are 47 percent of those under 25.”

Lawmakers argue that none of the individual plaintiffs in the case has suffered a legal injury. None has applied to serve on the state elections board.

This argument “misperceives and distorts” the case, Speas and Crowell wrote. “Their injury flows from the statutory bar interposed to the governor even considering an unaffiliated voter for appointment to the State Board, not from the failure of the governor to consider their applications for that position. Indeed, … there is no way for any unaffiliated voter to apply for appointment to the State Board. That statute expressly requires the governor to appoint State Board members, and fill vacancies on the State Board, exclusively from lists of nominees submitted by the chairs of the Democratic and Republican parties.”

“Cementing that bar to the appointment of unaffiliated voters, the statute goes on to forbid the chairs of the Democratic and Republican parties from submitting to the governor the name of any person ‘not affiliated’ with their parties,” Speas and Crowell added.

“There may be instances in which a plaintiff may need to open an unlocked door to gain standing to seek redress for an injury, but surely no plaintiff must knock down a locked door to gain standing.”