Federal judge blocks same-day voter registration change

Carolina Journal photo by Mitch Kokai

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  • A federal judge has blocked a portion of North Carolina's new election law dealing with same-day voter registration.
  • US District Judge Thomas Schroeder ruled that elections officials cannot disqualify a same-day voter's ballot based only on receiving one piece of undeliverable mail sent to the voter's address.
  • Schroeder's 94-page order explained that elections officials could enforce the undeliverable mail provision if they can develop a process providing affected voters with notice and an opportunity to be heard.

A federal judge issued an injunction Sunday blocking a part of North Carolina’s new state election law dealing with same-day voter registration. Election officials cannot disqualify a same-day voter’s ballot after receiving just one returned piece of undeliverable mail sent to the voter’s address.

US District Judge Thomas Schroeder’s 94-page order says the State Board of Elections can disqualify the ballots only after providing voters notice and an opportunity to be heard.

Schroeder issued his 94-page order less than a month before same-day voter registration is set to begin for the 2024 election cycle. Voters can register on the same day that they cast ballots in early voting. Early voting starts Feb. 15.

Plaintiffs in three federal lawsuits had challenged the “undeliverable mail provision” of the new state election law. Under the old law, elections officials could remove a same-day voter’s ballot after receiving two pieces of undeliverable mail sent to the voter’s address. Senate Bill 747, enacted in October, would have cut the number of mailings from two to one.

“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.

“In the last four even-year elections, 1,799 out of 100,578; 696 out of 45,666; 2,151 out of 116,326; and 391 out of 34,289 same-day registrants have failed address verification,” the judge wrote. “These numbers are based on the State’s prior two-card system, however, and the court can reasonably infer that there would not be any fewer failures if State Board Defendants send only one mail card.”

“State Board Defendants and Intervenors, meanwhile, have provided no evidence at this stage that any of the several thousand same-day registrants who have failed address verification since its inception in 2008 was ineligible to vote on the ground of improper residency,” Schroeder wrote.

“Plaintiffs are also likely to show that section 163-82.6B(d) deprives same-day registrants of notice and opportunity to be heard before their ballots are rejected through no fault of their own,” the judge added.

“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.”

State elections officials cannot enforce the undeliverable mail provision “without first providing such voter notice and an opportunity to be heard. … This injunction shall remain in force until such time as a procedure for notice and opportunity to be heard is implemented in accordance therewith.”

Schroeder rejected all other arguments plaintiffs offered to block even more of the new election law.

State House Speaker Tim Moore, R-Cleveland, and Rep. Grey Mills, R-Iredell, responded Monday to Schroeder’s order. Mills chairs the House Election Law and Campaign Finance Reform Committee.

“The vast majority of Senate Bill 747 is still in effect including increased poll observer access, bans on special interest money funding election offices, and making election day the last day to receive absentee ballots,” Moore and Mills said in a prepared statement. “The court order requires relatively minor changes to one small part of the bill, and we are working with our attorneys and the State Board of Elections to ensure that the entire bill is in effect before the primary and general elections this year. We will never stop fighting for election integrity on behalf of North Carolina’s voters.”

The judge’s order arrived 17 days after parties in the election dispute notified him that they could not reach a deal to avoid court action.

A court filing on Jan. 4 alerted Schroeder that the parties in the two suits could not comply with his deadline for avoiding court action.

“On December 28, 2023, the Court directed the parties, through undersigned counsel, to meet and confer and to notify the Court within seven days if the parties have found a basis to resolve Plaintiffs’ motions without a court order. The parties have conferred and are unable to resolve the motions at this time,” according to the two-paragraph status report.

Schroeder had set the seven-day deadline after a Dec. 28 hearing in Winston-Salem.

Both suits target provisions within SB 747. The election reform legislation became law when the Republican-led General Assembly overrode Democratic Gov. Roy Cooper’s veto in October.

Left-of-center activist groups working with high-profile Democratic operative Marc Elias’ law firm targeted the undeliverable mail provision alone in a federal suit. A second suit filed by the Democratic National Committee and state Democratic Party cites the undeliverable mail provision and other pieces of SB 747.

Under existing law, elections officials submit notice cards by mail to the address listed on a same-day voter registration form. If two notices return to a local elections office as undeliverable, elections officials retrieve the same-day voter’s ballot. It does not count in an election tally.

Starting Jan. 1, SB 747 called for elections officials to remove a same-day ballot after one piece of undeliverable mail.

Plaintiffs seeking an injunction from Schroeder indicated during a hearing that they would accept a court order calling for the State Board of Elections to set up a process for notifying a same-day voter that his registration has been rejected. The voter would have a chance to challenge that decision.

When lawyers on the other side of the case did not reject that option, Schroeder called on the parties to spend the next week trying to reach a deal that would avoid a court order.

Legislative leaders, the State Board of Elections, and Republican Party groups all urged Schroeder in December to reject an injunction.

“The majority of Plaintiffs’ claims in their Motion for Preliminary Injunction are based upon an unreasonable reading of existing election laws and the plain text of S.B. 747 itself,” wrote lawyers representing Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. “To the extent that S.B. 747 actually altered existing law, this Court should defer to the General Assembly’s reasonable interpretations of S.B. 747 because the same-day registration provisions do not deprive any North Carolinians of their due process rights.”

Lawyers representing the Republican National Committee and state GOP also opposed an injunction in the legal dispute.

“At issue is North Carolina’s same-day registration process, which occurs in a narrow time frame of about two weeks before election day and is utilized by a comparatively small subset of North Carolina voters,” GOP lawyers wrote. “Voters who register in person, by mail, or online as of the registration deadline 25 days before an election do not need this procedure. North Carolina is among the minority of states that merge registration and voting into one process to maximize access to the franchise. Its efforts are commendable and do not warrant federal judicial interference.”

Democrats hold a 3-2 majority on the State Board of Elections. That board also opposed an injunction.

“Plaintiffs’ motion for preliminary injunction should be denied because they cannot demonstrate a likelihood of success on the merits and the balance of equities favors implementation of the new same-day registration process,” wrote state Justice Department lawyers representing the elections board.

Plaintiffs in one of the suits argued in their initial complaint that the disputed provision threatens to “undermine” same-day voter registration in North Carolina.

“Prior to the passage of S 747, North Carolina’s same-day registrants’ votes were counted unless the post office returned two pieces of ‘undeliverable’ mail,” according to the October complaint. “At worst, two undeliverable notices might result in a public challenge to the same-day registrants’ vote being counted, if a challenge was received by 5 p.m. on the day of the election. But even if a same-day registrants’ ballot was challenged, the registrant was entitled to notice and a hearing to defend their vote in the face of such a challenge.”

“The Undeliverable Mail Provision of S 747 prohibits Defendants from registering a same-day voter and counting that voter’s ballot if the United States Postal Service returns as ‘undeliverable’ a single notice sent to that voter … before the close of business on the business day before the canvass,” the complaint continued. “Now, these voters do not receive any notice that their ballot was removed from the official count, let alone an opportunity to be heard in defense of their vote counting. Nor are they made aware that their registration was not effectuated. Instead, they are automatically disenfranchised and not registered to vote—all without being afforded any process to contest the removal of their votes from the count or their exclusion from the voter rolls.”

The suit says 104,336 voters used same-day registration in 2022, and 116,065 used same-day registration during the last presidential election in 2020.

Plaintiffs ask the federal court to declare the “undeliverable mail provision” unconstitutional under the First and 14th Amendments.