Critics ask court to compel election integrity activist Mitchell to testify at NC trial

Left-of-center groups challenging a provision of North Carolina election law are asking a federal judge to help them ensure election integrity activist Cleta Mitchell testifies at a trial next month in Winston-Salem. The challenged provision involves same-day voter registration rules.

A motion filed Thursday asks US District Judge Thomas Schroeder to authorize “alternative service” of a trial subpoena to Mitchell. Plaintiffs in the case also seek an order compelling Mitchell to appear at the trial on Oct. 21.

Mitchell had filed a motion for a protective order in the case last year when plaintiffs Democracy North Carolina, the North Carolina Black Alliance, and the League of Women Voters of North Carolina sought to depose her. Mitchell eventually withdrew the motion and indicated that disputed issues involving the deposition had been “resolved amicably.”

The latest court filings indicate that the case’s plaintiffs have not been able to serve Mitchell with a trial subpoena.

“Ms. Mitchell is a previously deposed witness and central figure in proving intent in this action,” wrote lawyers from the Southern Coalition for Social Justice who represent the plaintiffs. “In the Complaint, Plaintiffs alleged that the drafting and passage of S.B. 747, a law that intentionally discriminates against youth voters, was influenced by Mitchell — a licensed attorney and vocal activist known for spearheading a ‘crack down’ on student voting — and the North Carolina Election Integrity Team (‘NCEIT’) — which is the North Carolina chapter of Mitchell’s Election Integrity Network.”

“The record developed through discovery shows unequivocally that Mitchell and NCEIT spent months lobbying for the specific restrictions to same-day registration that appeared in the initial version of S.B. 747,” the coalition’s lawyers wrote.

“The record also includes evidence of youth animus espoused by Mitchell and NCEIT sufficient to create ‘a genuine dispute of material fact regarding whether the General Assembly enacted SB 747 for a discriminatory purpose,’” the court filing added.

The 2024 deposition involved a “monthslong effort necessitating court intervention,” according to the court filing. “Of note, six attempts for in-person service, by two process servers and the Moore County Sheriff’s Office, all failed either because Mitchell denied access to her gated community or because she was not home or appeared not to be home when service was attempted.”

“Now, once again, Plaintiffs seek court intervention to overcome what appears to be a concerted effort by Mitchell to evade service — this time of a trial subpoena for her live testimony,” coalition lawyers wrote.

Schroeder set an Oct. 20 trial date in the case after rejecting requests from state legislative leaders and the North Carolina State Board of Elections to dismiss the case.

The lawsuit challenges a section of 2023’s Senate Bill 747 called the “undeliverable mail provision.” The provision aimed to change how elections officials dealt with ballots from voters who registered to vote on the same day they cast early-voting ballots.

Two other lawsuits targeting the same provision ended in settlements that produced a consent judgment signed by Schroeder.

The judge issued a July 21 order denying requests to dismiss the remaining lawsuit.

“At the most basic level, Plaintiffs seek a return to the same-day registration scheme that predated Senate Bill 747 (‘SB 747’), which required, among other things, that a same-day registrant’s vote not be discarded unless the U.S. Postal Service returned as undeliverable a second mailing addressed to the registrant before the canvass deadline,” Schroeder wrote.

The plaintiffs make three claims, Schroeder explained. “Plaintiffs concede that Count One of their complaint alleging due process violations under SB 747 is mooted by the consent judgment,” he wrote. “However, if Plaintiffs prevail on either Count Two of their complaint (that SB 747 unduly burdens the right to vote) or Count Three (that SB 747 violates Plaintiffs’ Twenty-Sixth Amendment rights), it is conceivable that Plaintiffs could obtain relief beyond the notice and cure process prescribed by the consent judgment.”

“For example, Plaintiffs claim that SB 747 was enacted for an invidiously discriminatory purpose, entitling them to an injunction prohibiting enforcement of each challenged portion of the law,” the court order continued. “Because Plaintiffs retain a stake in the outcome of this litigation notwithstanding the consent judgment, the case is not moot.”

Before SB 747, election officials were required to remove a same-day voter’s ballot if the postal service returned two address verification cards as undeliverable. SB 747 dropped the requirement from two undeliverable mailings to one.

Schroeder issued an injunction blocking state election officials from using the “undeliverable mail provision” during the 2024 election.

He signed an agreement on April 28 ending the other two legal challenges against the provision. The state and national Democratic Party organizations and left-of-center activist groups working with Democratic operative Marc Elias’ law firm agreed to drop their lawsuits.

The plaintiffs led by Democracy NC did not take part in the settlement.

Republican legislative leaders argued in a May court filing that the consent judgment resolved the dispute.

“Amongst other things the Consent Judgment permanently enjoins the State Board from enforcing S.B. 747’s Undeliverable Mail Provision in future elections until an affected voter is provided specified notice and an opportunity to remedy their address verification failure,” according to the court filing. “The Consent Judgment also prohibits the removal of the ballots of SDR applicants who have their address verifications returned as undeliverable after the close of business on the second business day before the county canvass.”

“Plaintiffs’ claims are moot due to the Consent Judgment, which permanently enjoins the State Board from enforcing S.B. 747’s Undeliverable Mail Provision as written,” legislative lawyers explained. “In its place, the State Board must employ a notice and cure process … for all affected SDR applicants.”

Provisions in the April agreement “strike at the heart of Plaintiffs’ claims for relief,” lawmakers’ lawyers argued.

“In both form and function, the Consent Judgment provides Plaintiffs with the very process they allege the Undeliverable Mail Provision lacks,” the court filing continued. “Specifically, affected SDR registrants are given both notice and an opportunity to cure an address verification failure.”

“They also may not have their ballots removed if their mail verification is returned as undeliverable after the close of the second day before county canvass. Ultimately, the Consent Judgment offers Plaintiffs their core requested relief: an injunction prohibiting the use of S.B. 747’s Undeliverable Mail Provision in future elections,” legislative lawyers argued.

Carolina Journal first reported on April 22 about a deal designed to end the challenges from the Democratic National Committee, North Carolina Democratic Party, and clients working with Elias’ law firm.

Schroeder signed the agreement six days later.

“Defendants believe that continued litigation over the Undeliverable Mail Provision will result in the unnecessary expenditure of State resources, and is contrary to the best interests of the State of North Carolina,” according to the agreement.

Elections officials would be blocked from using the undeliverable mail provision to remove a same-day voter’s ballot “without first providing such voter notice and an opportunity to remedy the address verification failure,” according to the court filing. “Such notice shall be provided to the voter via U.S. mail and, if the voter provided additional contact information, by telephone and email, within one business day of receiving the undeliverable mail notice.”

A voter targeted by the undeliverable mail provision “must be permitted to remedy the address verification failure with documentation submitted in person, by mail, by email, or by fax,” the court filing continued. “The documentation must be received by 5 p.m. on the day before county canvass; provided, however, that a voter who is unable to provide the documentation by this deadline may also provide documentation in person at the county canvass, or may address the county board at the county canvass.”

Election officials also would be blocked from removing a same-day voter’s ballot if it’s “returned by the Postal Service as undeliverable after the close of business on the second business day before the county canvass.”

The Democracy NC suit accused lawmakers of targeting young voters in violation of the 26th Amendment. The complaint also argued that the change in state law violated voters’ due process rights and created an undue burden on the right to vote.

The law’s actual goal was “enhancing public confidence in elections,” according to an April 11 court filing from legislative leaders. Lawmakers and the State Board of Elections both filed motions for summary judgment in the case.

“The Undeliverable Mail Provision stemmed from concerns with difficulties in verifying addresses close in time to the election,” legislators’ court filing continued. “Under the pre-747 scheme, there was little time for completion of two mailers before canvass — especially for voters using [same-day registration] towards the end of early voting.”

“Indeed, the normal lag time with two mailers frequently meant the second mailer was returned as undeliverable after canvass, resulting in counted votes from unregistered persons,” legislative lawyers wrote.

“Plaintiffs attempt to minimize these real concerns and paint a picture of legislation designed to target 18–25-year-olds,” the court filing added. “The undisputed facts show otherwise. It is undisputed that the NCSBE, after careful thought, suggested moving to a one verification mailing system, which the General Assembly adopted.”

“Plaintiffs also ignore several substantive recommendations made by NCSBE which were adopted in full that enhanced the Undeliverable Mail Provision’s administrative practicability — including a specific recommendation that a [Help America Vote Act] document serve as proof of residence, which was aimed at helping college students.”

“Central to Plaintiffs’ case are allegations that the General Assembly enacted S.B. 747 in order to obstruct or limit young voters from utilizing SDR. But the factual record shows that age was never a consideration when drafting S.B. 747,” lawmakers’ lawyers argued.

Schroeder issued an injunction in January 2024 blocking the challenged provision from taking effect. The State Board of Elections then adopted temporary rules designed to address Schroeder’s concerns.

“Here, Plaintiffs are likely to show that the undeliverable mail provision of S. 747 imposes a substantial burden on SDR voters because it lacks notice and opportunity to be heard before removing the votes of a cast ballot from the count,” Schroeder wrote when issuing his injunction.

“For SDR voters, the lack of notice and opportunity to be heard is inconsistent with the State’s interest in counting all eligible voters’ ballots,” Schroeder concluded. “Moreover, given the lack of showing of an administrative burden on county boards of elections, the risk of irreparable injury, the balance of equities, and the public interest all weigh in favor of requiring notice and an opportunity to be heard.”

Schroeder rejected all other arguments the Democratic Party plaintiffs offered to block other sections of SB 747.

Mitchell attracted national attention for her legal work supporting President Donald Trump in the weeks after he lost his re-election bid to Joe Biden in 2020.

“Cleta Mitchell is a prominent attorney and national election integrity advocate, who had an exceptionally limited role with respect to SB 747, namely meeting with a small group of state senators once to discuss a litany of potential changes to state election law,” according to a memorandum Mitchell’s lawyers filed last year. “Nevertheless, plaintiffs seek to depose Ms. Mitchell about any of her advocacy work engaged in anywhere in the United States over a period of decades.”

“While Ms. Mitchell has agreed to be deposed in this matter, the breadth of examination sought by plaintiffs exceeds that allowed by the Federal Rules of Civil Procedure for a non-party, like Ms. Mitchell, especially considering the First Amendment concerns raised by the wide-ranging inquisition sought by her ideological opponents,” the memo continued.

Mitchell founded the Election Integrity Network, serves as senior legal fellow at the Conservative Partnership Institute, and previously chaired the Public Interest Legal Foundation.

In a separate document, Mitchell described her role in the development of SB 747.

“In 2023, I met once with a group of three state senators concerning myriad potential changes to North Carolina election law along with two other election integrity advocates — James Womack of NCEIT and Jay DeLancy of the Voter Integrity Project,” Mitchell declared. “While potential changes to same day voter registration (‘SDR’) may have been among the numerous topics discussed in that meeting, if SDR were raised or discussed by any of the election integrity advocates present (and I do not recall if it was), it would have been by Mr. Womack (and perhaps Mr. DeLancy), but not by me.”

Womack believed “same day registrants should vote by provisional ballot, but this is not the path that the General Assembly adopted in its legislation,” Mitchell wrote. “I, however, did not discuss any potential changes related to drafting or enacting the same day registration (‘SDR’) provisions of SB 747 with any legislators, or their staffers, in that meeting or at any time prior to passage of SB 747.”

“The Governor of North Carolina, Roy Cooper, publicly and falsely identified me in his veto statement at the time of his veto of SB 747, stating incorrectly that I had been a primary advocate for SB 747, which is not true,” Mitchell added.

“Since enactment of SB 747, I have become actively focused on noncitizen voting and have talked to many people across the country about the perils of SDR as it relates to noncitizen voting and college student voting. But neither of those were discussed by me with legislators regarding SB 747,” Mitchell wrote.

Mitchell also focused on the organizations pushing the lawsuit.

“The plaintiffs in this case are all organizations that engage in public policy advocacy on issues, matters, and policies in direct opposition to my election integrity work,” she declared. “Indeed, one of the firms representing the plaintiffs in this case — the Southern Coalition for Social Justice — represented plaintiffs who sued the Public Interest Legal Foundation in LULAC v. Public Interest Legal Foundation, which has since been settled.”

“I am one of the founders and chair the board of the Public Interest Legal Foundation and was well aware of the harassing and intrusive nature of that litigation at the time,” Mitchell wrote. “Due to my public profile, plaintiffs’ proposed questioning would further expose me to potential harassment, threats, and efforts at intimidation. I have been and continue to be the target of threats and harassment because of my work on election integrity,”

“Plaintiffs are aware that my role in the subject litigation barely exists but are insistent upon questioning me upon matters well beyond the subject matter, facts, parties, and time period of this lawsuit,” she declared.

Editor’s note: The article has been updated to say Mitchell was previously the chair of PILF, since the organization reached out to inform CJ that she is no longer in that role.