Elections board, DNC urge top NC court to avoid suit challenging overseas voter rules

The North Carolina State Board of Elections and Democratic National Committee filed paperwork Monday asking the state Supreme Court to reject a request from state and national Republican groups. The GOP organizations want North Carolina’s top court to take a case challenging state election rules for overseas voters.

“Plaintiffs’ petition asks this Court to throw out the ballots of U.S. citizens who cast their votes in compliance with the Uniform Military and Overseas Voters Act (UMOVA), a state statute passed unanimously by our General Assembly in 2011,” lawyers representing the state elections board wrote Monday. “Plaintiffs insist their challenge is limited to a small group of U.S. citizens who have never actually lived in the United States. But Plaintiffs’ legal argument cannot be so easily contained.”

“If Plaintiffs prevail on appeal, their constitutional claim threatens to strip untold numbers of voters — including military service members serving outside the State — of their right to participate fully in our State’s elections,” the elections board’s court filing continued. “This Court should reject Plaintiffs’ damaging request, just as the Court of Appeals did last week.”

DNC lawyers also asked the state Supreme Court to reject Republicans’ request.

“The Court of Appeals correctly denied a writ of supersedeas and accompanying mandatory injunction, recognizing that Petitioners’ extraordinary request (renewed here) suffers from a host of defects,” DNC lawyers wrote. “These include procedural infirmities, grossly inequitable timing, proximity to election day, and substantive deficiencies.”

“Moreover, the generalized, non-cognizable harm Petitioners claim they will suffer absent review is far outweighed by the significant harm to voting-age children of North Carolinians serving abroad in military and civilian capacities that the mandatory injunction Petitioners seek would inflict,” the Democratic court filing continued.

A trial judge and the state Appeals Court have ruled against the Republican National Committee, North Carolina Republican Party, and two individual plaintiffs. They are suing the North Carolina State Board of Elections in a case called Kivett v. State Board of Elections.

GOP groups filed paperwork with the state’s top court Friday. They seek an order blocking the lower courts’ decisions. The state Supreme Court issued an order Friday calling for responses to the Republicans’ request by Monday.

“Plaintiffs seek a simple but necessary solution to remedy an ongoing and increasingly dangerous threat to the integrity of North Carolina’s elections,” Republican lawyers wrote Friday. “Evidence in the record makes clear that Defendants are allowing, in their own words, an ‘unknown’ number of overseas citizens who have never resided in North Carolina to register and vote in the state’s elections.”

“This is an unabashed violation of Article VI § 2 of the state Constitution,” the court filing continued. “Thus, Plaintiffs seek an order enjoining Defendants from counting these potentially illegal ballots and instead segregating and counting them as provisional ballots until the voter’s qualifications under all applicable and constitutional state and federal laws can be adequately established.”

“Because these ballots are readily identifiable and the harm easily remedied, Plaintiffs respectfully request emergency relief from this Court,” Republican lawyers wrote.

Republicans seek a ruling before Election Day on Tuesday. “By acting now this Court can still avoid the irreparable harm which would befall Plaintiffs and the voting populace of North Carolina, should persons ineligible to do so participate in this state’s elections, potentially with decisive effect on races up to and including the contest for President of the United States,” according to the court filing.

An unnamed three-judge Appeals Court panel issued an Oct. 29 order denying GOP groups’ request for a writ of supersedeas. The writ would have blocked a lower court order favoring the elections board in the dispute. The same Appeals Court order dismissed motions for a temporary stay and an injunction.

Court rules call for the names of the participating judges to remain confidential for 90 days.

Wake County Superior Court Judge John Smith rejected an injunction in the case on Oct. 21.

The Republican National Committee and North Carolina Republican Party had sued the State Board of Elections over its interpretation of a more than decade-old state law.

“Plaintiffs contend North Carolina General Statute 163-258.2(1)(e) is being misinterpreted by the State Board of Elections so as permit the registration of non-residents to vote in violation of the United States Constitution and the North Carolina Constitution,” according to Smith’s court order. “The provision on which Plaintiffs focus is part of the Uniform Military and Overseas Voters Act.”

The act describes a “covered” voter as an overseas voter born outside the United States and, “except for a State residency requirement, otherwise satisfies this State’s voter eligibility requirements,” but only if “The last place where a parent or legal guardian of the voter was, or under this Article would have been, eligible to vote before leaving the United States is within this State” and “The voter has not previously registered to vote in any other state.”

“That statute has been on the books at least since 2011 as a bill adopted with bi-partisan support under Speaker of the House Thom Tillis and President pro tem of the Senate Walter Dalton; and has not been challenged until the filing of this complaint and motion,” Smith wrote. “Both the Plaintiffs and the Defendants have been involved in elections under the existing statute since its passage without complaint.”

Tillis, a Republican, is now a US senator for North Carolina. Dalton, a Democrat, was lieutenant governor at the time the law was passed.

“Plaintiffs have presented no substantial evidence of any instance where the harm that plaintiffs seek to prevent has ever ‘fraudulently’ occurred,” Smith added. “Plaintiffs have contended on the record in this hearing that subsection 163-258.2(1)(e) is facially constitutional. Although Plaintiffs have failed to present evidence of any actual occurrence, the court does infer that there may be persons who fall within the very narrow statutory exemption who may have registered and may have voted; but there is absolutely no evidence that any person has ever fraudulently claimed that exemption and actually voted in any North Carolina election.”

“Plaintiffs concede and the court finds that Plaintiffs have not presented any evidence of even a single specific instance of any registrant unlawfully availing themselves of the statutory provision,” Smith wrote.

“All of the factual evidence presented to this court shows that Defendants have not and will not knowingly allow a non-resident who does not fall within the statutory exception to register or vote in our state elections,” the judge added.

The trial judge’s ruling in Kivett v. North Carolina State Board of Elections arrived on the same day a Michigan court struck down a similar lawsuit in that state.