Federal judge rules two election-related NC lawsuits can proceed

Carolina Journal photo by Mitch Kokai

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  • A federal judge issued two orders Tuesday allowing lawsuits to proceed challenging a change to North Carolina's election law.
  • The challenged provision of Senate Bill 747 would force elections officials to discard ballots from same-day registration voters if one mailing sent to their stated address was returned as undeliverable.
  • US District Judge Thomas Schroeder issued a Jan. 21 injunction blocking the provision from taking effect. The State Board of Elections responded with a temporary rule designed to address Schroeder's concerns.

A federal judge has rejected motions to dismiss two lawsuits challenging North Carolina’s recent election law changes. Both suits targeted a provision that would force elections officials to reject ballots from same-day registration voters if a single mailing to their stated address proved undeliverable.

US District Judge Thomas Schroeder issued new orders in the two cases Tuesday. He had issued a Jan. 21 injunction blocking the challenged provision of Senate Bill 747 from taking effect.

The State Board of Elections followed up on Jan. 29 with notice of a temporary interim rule designed to address Schroeder’s concerns. The rule change was designed to give voters notice that their ballots would be challenged, along with an opportunity to object to the removal.

“Legislative Intervenors have not demonstrated … that the interim rule moots the complaint,” Schroeder wrote in the case Voto Latino v. Hirsch. “While the interim rule from the NCSBE is presently in place, it remains temporary by operation of the statutory authority for its adoption.”

“For many of the reasons set forth in the court’s extensive analysis of Plaintiffs’ likelihood to succeed on the merits, and after careful review of the briefing on this motion, the court concludes that Legislative Intervenors have not shown they are entitled to dismissal,” Schroeder wrote.

In the other case, Democracy North Carolina v. Hirsch, Schroeder noted the possibility that state legislators could revise the targeted law.

“As a practical matter, … there is a viable probability that this claim will become moot if the General Assembly codifies permanent changes to comply with this court’s preliminary injunction order,” he wrote. “As of January 29, 2024, the NCSBE has amended the undeliverable mail provision — notably, without any complaint thus far from any plaintiff across the three related cases before this court.”

Schroeder issued no order this week in the third case targeting the undeliverable mail provision, NC Democratic Party v. NC State Board of Elections.

The temporary rule change was based on the state elections board’s “authority to ‘make reasonable interim rules and regulations’ that become ‘null and void 60 days after the convening of the next regular session of the General Assembly,’” Schroeder wrote.

“A more permanent change appears likely, as one would be consistent with the General Assembly’s representation to this court that the intention of S. 747’s undeliverable mail provision was for SDR voters to receive notice and an opportunity to be heard before their ballots are removed from the count,” Schroeder wrote.

Schroeder also indicated an interest in hearing more from the competing parties about the challenged provision. “Additionally, the court would benefit from a more developed factual record and briefing,” he wrote. “The parties dispute which legal framework the court should apply to determine if the undeliverable mail provision is intentionally discriminatory.”

“[T]here is good reason to avoid wading into this novel area of law at this preliminary stage,” Schroeder added.

The state elections board touted  “a process that provides a notice and opportunity to cure for same-day registrants whose first notice is returned as undeliverable” in a January court filing.

The board’s lawyers notified Schroeder about Numbered Memo 2023-05. The memo outlined a “notice and cure process” for same-day voters with undeliverable mail.

“The county board shall send a ‘Notice to Verify Your Address’ to the registrant by mail and email, if provided on the registration form, within one business day of receiving the undeliverable verification card,” according to the memo. “County board staff shall also call the registrant to provide the information on the Notice orally, if the registration form includes a phone number.”

“The registrant may verify their address (i.e., ‘cure’ the failed mail verification) by submitting a copy of a same-day registration ‘HAVA document’ to the county board no later than 5 p.m. on the day before county canvass,” the memo continued.

HAVA refers to the Help America Vote Act of 2002.

“The Notice will instruct the registrant to provide a document that is different from the one they used when registering during early voting,” the memo explained. “The document copy may be provided via email (with scanned or photographed document), fax, mail, or in-person delivery during business hours. The Notice shall offer the registrant the opportunity to come in person to the canvass meeting to verify their address, if they are unable to provide an acceptable ‘HAVA document’ by the deadline above. In that case, the county board shall take the registrant’s testimony under the first oath in G.S. § 163-86(c) and shall consider any documentation offered by the registrant.”

If undeliverable mail arrives at the county board on the day before the vote canvass or later, elections staff will send no notice. “[T]he registrant’s ballot must remain in the official count,” the memo explained. “At that point, there is not enough time to notify the voter and provide a meaningful opportunity to cure.”

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 when issuing his injunction.

“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.”

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

State House Speaker Tim Moore, R-Cleveland, and Rep. Grey Mills, R-Iredell, responded to Schroeder’s January 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.”

Left-of-center activist groups working with high-profile Democratic operative Marc Elias’ law firm targeted the undeliverable mail provision alone in the Voto Latino suit. A second suit filed by the Democratic National Committee and state Democratic Party cited the undeliverable mail provision and other pieces of SB 747. A third suit led by activist group Democracy NC targeted the undeliverable mail provision as well.

Under the previous state law, elections officials submitted notice cards by mail to the address listed on a same-day voter registration form. If two notices returned to a local elections office as undeliverable, elections officials retrieved the same-day voter’s ballot. It would 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. Schroeder’s injunction blocked that provision.

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

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