Federal judge to consider sending NC ballot envelope case back to state court

US District Judge Richard Myers (Image from law.unc.edu)

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  • A federal judge has ordered Republican groups and the North Carolina State Board of Elections to explain why a lawsuit challenging state mail-in absentee ballot envelope rules should remain in federal court.
  • State and national GOP groups filed suit in state court, but the elections board moved the case to federal court on Oct. 11.
  • US Chief District Judge Richard Myers has ordered the parties to "show cause" by Wednesday why he shouldn't send the case back to state court.

A federal judge has ordered Republican groups and the North Carolina State Board of Elections to explain why he should consider a lawsuit challenging state rules regarding envelopes used for mail-in absentee ballots.

The Republican National Committee and North Carolina Republican Party filed the suit in state court. The state elections board moved the case to federal court on Oct. 11.

US Chief District Judge Richard Myers filed an order Monday seeking information about why the case should remain in federal court.

“The parties are ordered to show cause, on or before October 30, 2024, why the court should not remand this matter to state court for want of subject matter jurisdiction,” Myers wrote in the one-paragraph order. “Specifically, the parties should address whether the Complaint … alleges a concrete and particularized injury sufficient to confer Article III standing in federal court.”

The issue of Article III standing emerged Monday afternoon in a separate case the State Board of Elections moved from state to federal court. In that case, GOP groups challenge the registration of 225,000 North Carolina voters. During oral arguments at the 4th US Circuit Court of Appeals, Chief Judge Albert Diaz led questioning of Republican, Democratic, and state elections board lawyers about whether the federal courts should consider the case at all.

The elections board filed a notice of removal on Oct. 11 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.”

The state and national Republican groups filed at least five suits against the State Board of Elections between Aug. 22 and Oct. 2. The other 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.

A third suit challenges the elections board’s treatment of rules regarding overseas voters.

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