- The North Carolina State Board of Elections has removed a Republican lawsuit over absentee ballot envelopes from state court and moved it to federal court.
- The Republican National Committee and North Carolina Republican Party argue that state elections officials offered guidance about mail-in absentee ballots that conflicts with state law.
- It's the second suit elections officials have removed from state court. The State Board of Elections and Republican groups have filed competing paperwork over moving the other case back to state court.
The North Carolina State Board of Elections has moved a lawsuit from Republican groups challenging state election rules out of state court and into a federal court. The GOP suit targets the elections board’s approach to a state law governing envelopes for mail-in absentee ballots.
It’s the second case state election officials have removed from state court to federal court. The elections board and Republican groups continue to file competing arguments for moving the first case back to state court.
The elections board filed a notice of removal Friday in the ballot envelope case.
“The complaint seeks a declaratory ruling that Defendants’ guidance on processing absentee ballots violates Chapter 163 of the North Carolina General Statutes. However, Defendants’ guidance is based on their obligation to comply with” federal law, the elections board’s lawyers wrote, specifically the “materiality provision” of the Voting Rights Act.
“The VRA’s overarching objective is to achieve racial equality in voting,” the elections board’s court filing explained. “Any action commenced in a state court may be removed to the district court of the United States where it is pending when the action is based on ‘any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.’”
“Because Plaintiffs seek relief for Defendants’ refusal to do an ‘act on the ground that [the act] would be inconsistent” with 52 U.S.C. § 10101(2)(B), removal is proper,” elections board lawyers argued.
The suit from the Republican National Committee and North Carolina Republican Party arose from the State Board of Elections revising its Numbered Memo 2021-03, which implements various laws governing absentee ballots.
According to an RNC news release, the revised memo stated that absentee ballots do not need to be returned in sealed container-return envelopes to be counted. This policy directly conflicts with the statutes specifying that they must be returned in sealed container-return envelopes, GOP groups argued.
The RNC said the policy violated North Carolina state law and weakened absentee ballot safeguards.
“This decision by the NCSBE is inconsistent with state law and diminishes protections for absentee ballots,” said RNC Chairman Michael Whatley. “We have filed suit to uphold election integrity and ballot safeguards. State law lays out clear requirements, and the NCSBE must follow them — we will continue to fight for election integrity in the Old North State.”
As that case moves to federal court, Republican groups and state election officials filed competing documents Friday in a separate case. It’s based on a lawsuit challenging 225,000 voter registrations in North Carolina.
The RNC and NCGOP argue that the elections board violated the federal Help America Vote Act by registering voters without requiring the prospective voters to provide a driver’s license number or the last four digits of a Social Security number.
Republican groups call for the elections board to cancel the challenged registrations or to force the voters to cast provisional ballots in the general election.
The State Board of Elections moved that case to federal court, but Republican plaintiffs hope to have the case returned to state court. A hearing is scheduled before US Chief District Judge Richard Myers on Thursday in Wilmington.
“On its face, Plaintiffs’ Complaint raises only state law causes of action,” GOP lawyers wrote while urging Myers to return the case to state court. “Defendants ask this Court to ignore that fact and retain jurisdiction in a thinly veiled attempt at forum-shopping. Well-established precedent forecloses Defendants’ arguments from the outset.”
“Defendants concede that they failed to comply with certain mandates of the Help America Vote Act (‘HAVA’) and, thus, N.C. Gen. Stat. § 163-82.11(c). With that concession, the only remaining question is whether Defendants’ failure to seek this information violates North Carolina state law. This Court is not the proper forum to answer that question,” the Republican court filing continued.
Meanwhile, the elections board filed competing paperwork urging Myers to dismiss Republicans’ lawsuit.
“Plaintiffs’ unreasonable delay in bringing their suit warrants dismissal,” elections board lawyers wrote. “Plaintiffs’ Complaint reveals that they had at least constructive knowledge of the facts that form the basis of their claims by December 2023, possibly earlier. Even if, as Plaintiffs now imply, they only obtained knowledge in June 2024, their two-month delay would be unreasonable, given both the National Voter Registration Act’s bar on systematic removal of voters 90 days before an election and courts’ reluctance … to change voting rules during an election. Plaintiffs continue to delay even now: though they claim this suit requires ‘immediate action,’ they have not yet sought any form of emergency relief.”
The elections board objects to more than just the timing of the RNC and NCGOP lawsuit.
“Plaintiffs’ suit is premised on their mistaken belief that because the Help America Vote Act requires the State Board’s registration form to collect either a voter’s driver’s license number or the last four digits of her social security number, HAVA also requires the State Board to purge or relegate to provisional voting anyone who did not provide that information when they registered,” according to the Friday court filing.
“But HAVA does not authorize, much less compel, the State Board to purge voters. To the contrary, HAVA requires the State Board to accept votes from any voter who mistakenly registered without providing a driver’s license or social security number but who presents a current, valid photo identification or other HAVA document at the polls. And since all North Carolina voters, even those not subject to the HAVA ID requirement, will be asked to present a photo identification to confirm their identity before voting, the State Board will be in compliance with HAVA in administering the upcoming election, and the risk of ineligible voters casting ballots will be slim to none,” elections board lawyers added.
The state and national Republican groups filed two other suits against the State Board of Elections between Aug. 22 and Sept. 12. Both of those cases remain in state court.
One challenges the elections board’s approach to ensuring that no registered voters are people excused from jury duty because they said they are not citizens.
The second suit challenged the elections board’s decision to permit the University of North Carolina at Chapel Hill’s digital identification to be used as voter ID this fall. The state Appeals Court issued a Sept. 27 order blocking elections officials from accepting the mobile UNC as voter ID.