Democrats, Elias target GOP challenge of UNC digital voter IDs

The Democratic National Committee and a group working with Democratic operative Marc Elias’ law firm both hope to intervene in Republicans’ challenge of newly approved voter identification for the University of North Carolina at Chapel Hill. State elections officials have approved UNC digital IDs to serve as voter IDs for the upcoming election.

A hearing is scheduled Thursday in Raleigh to address the Republican National Committee and state Republican Party’s request for a temporary restraining order against the State Board of Elections.

The DNC and the Affirmative Action Coalition have filed separate requests to intervene in the case. The Elias Law Group represents the coalition. Both proposed intervenors filed additional paperwork objecting to the Republicans’ request.

“This lawsuit is an eleventh-hour bid to confuse and potentially disenfranchise up to 40,000 individuals who attend or work at North Carolina’s flagship state university, just weeks before they head to the polls for early voting,” DNC lawyers wrote Tuesday. “Plaintiffs ask the Court to punish students and employees at the University of North Carolina at Hill (‘UNC’) for using the digital identification cards that UNC issued and encouraged them to use as voter identification, on the baseless theory that North Carolina law implicitly prohibits digital voter identification cards.”

“Plaintiffs have been aware that the State Board of Elections (‘State Board’) approved UNC’s mobile One Card the digital, default official university identification for use as a valid voter identification since the Board made that decision, nearly a month ago,” according to the Affirmative Action Coalition’s court filing. “Yet Plaintiffs inexplicably sat on their hands and waited weeks to file this lawsuit until the election was imminent. Plaintiffs now ask the Court to rewrite North Carolina election law and force the State Board to rescind its approval and remove the option of the mobile One Card as a form of voter identification, even though nothing in state law prohibits the use of a digital identification card for voting.”

The State Board of Elections filed a brief Wednesday opposing Republicans’ request for a restraining order.

“Plaintiffs claim that the State Board’s decision to authorize the Mobile One Card as an
acceptable form of photo identification violated state law,” the state board’s lawyers wrote. “But Plaintiffs are incorrect. In fact, the opposite is true: State law requires the State Board to ‘approve the use of student identification cards issued by a constituent institution of The University of North Carolina’ and ’employee identification cards issued by a state or local government entity,’ so long as certain criteria are met. UNC and the Mobile One Card met each of these criteria. Thus, under state law, the State Board was duty bound to approve the Mobile One Card as an acceptable form of photo identification.”

Republican groups filed suit on Sept. 12. It was their fourth suit against the state elections board in three weeks.

“The General Assembly enacted a detailed statute aimed at preventing electoral fraud by presentation of valid photo voter identification for in-person voting, as required by the Constitution,” according to the latest suit. “The law describes several physical photo voter identification items that a voter can produce to comply. Nowhere in that law, or related ones … did the General Assembly directly describe or indirectly permit the use of electronic forms of photo identification ‘to confirm the person presenting to vote is the registered voter on the voter registration records.’”

State board memos from September 2023 and February 2024 show that elections officials understood the limits on voter ID, the lawsuit argued.

“In spite of this obvious application of the law for almost a year, the three Democrat members of the NCSBE abruptly reversed course, less than three months before the November presidential election,” GOP lawyers wrote. “On August 20, 2024, by a three-two Democrat majority vote, the NCSBE approved allowing precinct workers to rely upon the University of North Carolina Chapel Hill’s digital student and employee identification. This UNC digital identification exists as an electronic record on a computer device.”

“According to the NCSBE, on August 19, an image of a photo ID on a computer device did NOT satisfy the law requiring ‘a voter shall produce any of the following forms of identification that contain a photograph’ to satisfy the voting procedures and vote. But on August 20, that somehow met the specific requirements of the law. The law never changed. The Court should, respectfully, curb the NCSBE from acting outside its statutory authority,” the lawsuit continued.

The August elections board vote was along party lines, with Democratic members Alan Hirsch, Siobhan Millen, and Jeff Carmon voting in favor, while Republican members Kevin Lewis and Stacy “Four” Eggers IV voted against the measure.

“What we’re being asked to approve here is an identification on a mobile app, and a mobile app is not an identification card,” Eggers said. “This is a different process we’re doing here than simply giving my friend my football tickets when I download them from the website. We’re talking about the requirements of the statute that there be an identification card, and in my reading of the statute, we simply don’t have the authority to do a mobile app in lieu of an identification card because that’s what this is.”

“Mr. Eggers raises a technical statutory interpretation question,” Hirsch said. “My own view is that there’s certainly enough flexibility within the statute for us to approve a digital card as a card. I think that’s the way of the world. I think everyone of a certain younger generation lives by that and they don’t carry cards.”

Millen said Egger’s view was a “little formalistic” since most young people use Apple Wallets, which is the same as using a credit card to purchase such things as groceries.

“I think the form that it’s in is not really the important thing,” Millen said. “Secondly, I’d like to note that if a student at UNC adds that mobile ID to their Apple Wallet, their physical card will no longer work to get into different buildings to get their meals, so it seems to me that that would make that card not a priority for the student to carry around. In fact, they might lose it under a pile of papers.”

“I would ask you to point out to me where you find all this flexibility that you mentioned in the statute because I don’t see it,” Lewis said. “I see some directions from the legislature that we ought to follow, and not trying to get creative and go above and beyond what the General Assembly has allowed. So unless the General Assembly were to add mobile apps or digital apps to this statute, I think we need to confine like every other card that we’ve approved is an actual card.”