Federal Appeals Court weighs fate of GOP challenge of 225,000 NC voter registrations

Carolina Journal photo by Mitch Kokai

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  • The 4th US Circuit Court of Appeals will issue a decision soon about whether Republican groups' challenge of 225,000 voter registrations in North Carolina should remain in federal court or return to state court.
  • US Chief District Judge Richard Myers dismissed part of Republicans' lawsuit but ruled that state constitutional claims should be heard in a state courtroom.
  • Republicans accepted Myers' ruling. The State Board of Elections and Democratic National Committee are urging a three-judge federal appellate panel to keep the case in federal court.

A three-judge federal Appeals Court panel will decide soon whether a lawsuit challenging 225,000 voter registrations in North Carolina should return from federal court to state court. State and national Republican groups filed the suit in state court against the North Carolina State Board of Elections.

“The clock is ticking, and so we’ll get a decision out to you as quickly as we can,” said Chief Judge Albert Diaz of the 4th US Circuit Court of Appeals after more than an hour of arguments in Richmond, Virginia.

The Republican National Committee and North Carolina Republican Party are calling for courts to force the state elections board to remove voters from the rolls or force them to cast provisional ballots if they registered to vote using a now-discarded registration form.

That form did not mandate that prospective voters provide a driver’s license number or the last four digits of a Social Security number. The Republican groups argued that the failure to collect that information during voter registration violated the federal Help America Vote Act.

The State Board of Elections had the case removed from state court to federal court.  US Chief District Judge Richard Myers dismissed part of the case on Oct. 17. But Myers ruled that a claim that the state board’s actions violated the North Carolina Constitution should return to state court.

The elections board and the Democratic National Committee objected to that piece of Myers’ ruling. Both parties asked Diaz and Judges Roger Gregory and Nicole Berner to keep the case within the federal court system. Democratic presidents appointed all three members of the three-judge panel.

“They cannot prevail on their state constitutional claim without first proving that there was, in fact, a violation of federal law here,” argued North Carolina Deputy Attorney General Sarah Boyce, arguing on behalf of the elections board. “Their entire theory of vote dilution falls apart if, in fact, they are unable to prove that there was a HAVA violation here.”

“Congress has given clear direction that in instances when civil rights are under threat, federal court is sometimes the best protector of those civil rights,” Boyce added.

The DNC has urged the Appeals Court to order Myers to throw out the state constitutional claims along with the rest of the lawsuit.

“The plaintiffs say that this court should not — but not that it cannot — address them. But the imminence of the election, now eight days away, and the corrosive claim that the state board is somehow permitting thousands and thousands of ineligible votes to be cast counsels just the opposite,” argued DNC lawyer Seth Waxman.

GOP groups are pursuing a case “in which there is not a single allegation that there is, in fact, anybody who is ineligible to vote among the 225,000, much less has voted,” Waxman added.

Republican lawyer Phil Strach acknowledged that the suit targets only a subset of those registered under the challenged state forms. That subset includes those who lacked a driver’s license or Social Security number.  “It could be 2,000. It could be 25,000. We don’t know,” he said.

Strach challenged the opposing attorneys’ characterization of the lawsuit.

“We are not and have not asked any court to, quote, purge 225,000 voters from the rolls,” he said. “We’ve not asked for that. We have not asked to disenfranchise anyone who is properly registered, eligible to vote.”

The state elections board should flag affected voters and ask for their driver’s license number or last four SSN digits when they head to the polls, Strach said. If the voters cannot provide that information, they can cast provisional ballots and allow election officials to verify their eligibility.

“That’s all we’re asking to do,” Strach said. “To me, it’s not a heavy lift.”

Diaz asked Strach about the impact of the recent state law requiring voter identification at the polls.

“If they’re required to provide the ID at the polls, what’s the point?” he asked.

Berner asked Strach why removing voters from the voting rolls within 90 days of an election wouldn’t violate federal law. Those voters never should have been considered registered in the first place, Strach responded.

Gregory questioned subjecting the 225,000 voters to the possibility of a provisional ballot counted days after the election. “It sort of makes you a second-class citizen,” he said.

All three lawyers wrestled with Diaz’s questions about whether the case should be removed from the federal courts because of a lack of standing.

Boyce and Waxman, representing the elections board and Democrats, argued that the Republicans had standing to bring the case in federal court. Strach, the GOP lawyer, said the lawsuit had been written to comply with “much lower” state standing requirements.

Myers issued his decision on Oct. 17 after a hearing in Wilmington.

He first rejected a request from state and national Republican groups to send the entire case back to state court. The judge then determined that he could address one of two claims GOP groups made in their initial lawsuit in state court.

The RNC and NCGOP filed their first claim under a state law — NC Gen. Stat. § 163-82.11 (c) — alleging that the State Board of Elections failed to maintain its voter registration list in compliance with HAVA.

Myers determined that the Republican groups had no right to bring the suit.

“In reaching its conclusion that Count One fails on the merits, the court is not insensitive to Plaintiffs’ concerns about election integrity and voter disenfranchisement,” Myers wrote in his 44-page order. “Nor is its decision in any way a stamp of approval on Defendants’ conduct. But ‘[r]aising up causes of action where a statute has not created them’ is ‘for common-law courts,’ not this ‘federal tribunal[].’”

“In the absence of any indication that North Carolina’s General Assembly intended for private litigants to enforce the provisions of Section 163-82.11, this court may not appoint itself as ‘oversee[r]’ of ‘executive action,’ which ‘would significantly alter the allocation of power … away from a democratic form of government.’”

Myers refused to rule on the Republican groups’ second complaint, “a direct claim under the North Carolina Constitution, alleging that ‘Defendants’ actions directly interfere with North Carolinian’ s fundamental right to vote.’”

That claim “raises a ‘novel’ issue of North Carolina law (whether the State’s noncompliance with state and federal election law can give rise to state constitutional injury).” Myers cited “compelling [federalism] reasons for declining” to address that issue. “[S]tate courts should decide the scope and extent of state constitutional rights,” he wrote.

“Accordingly, the court declines to exercise supplemental jurisdiction over Count Two and remands that claim to state court, which will ‘best promote the values of economy, convenience, fairness, and comity,’” Myers concluded.  

The voter registration lawsuit filed in August argued that the elections board failed to require identification from prospective voters to prove citizenship. GOP groups argued that by violating HAVA and not checking the identification of approximately 225,000 voters, the agency opened the door for noncitizens to vote. 

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