- US District Judge James Dever has dismissed a federal lawsuit challenging North Carolina's 30-day residency requirement for voters.
- The North Carolina Alliance for Retired Americans, working with Democratic operative Marc Elias' law firm, had challenged the residency requirement as unconstitutional.
- Dever ruled that the retirees alliance lacked standing to file suit, that its claims were not "ripe" for legal action, and that the residency requirement complied with the Constitution and the federal Voting Rights Act.
A federal judge has dismissed a lawsuit challenging North Carolina’s 30-day residency requirement for voters. A retirees group working with Democratic operative Marc Elias’ law firm had challenged the residency law as unconstitutional.
US District Judge James Dever issued a 34-page order Friday rejecting the plaintiffs’ arguments on multiple fronts.
Dever ruled that the North Carolina Alliance for Retired Americans lacked standing to sue state elections officials.
“The Alliance fails to identify any current member of its organization who will be harmed by the 30-day durational residency requirement,” Dever wrote. “None of the Alliance’s ‘approximately 52,000 members across North Carolina’ will be harmed by the requirement that a prospective voter must live in North Carolina for 30 days before an election to vote in North Carolina.”
“To the extent the Alliance relies on ‘’new members who will join the Alliance,’ the Alliance seeks to sue on behalf of non-members. Absent third-party standing, the Alliance cannot sue on behalf of nonmembers simply by deeming them potential future members,” Dever added.
“Moreover, the Alliance does not-identify any specific individuals who will move to North Carolina, become members of the Alliance within 30 days of Election Day 2024, and desire to vote in North Carolina in the 2024 elections. Accordingly, the Alliance cannot assert associational standing,” the order continued.
Dever rejected the retirees alliance’s focus on new members who might join the group in the 30 days before an election. “The Alliance’s lone statistic, 300 new members per month, tells the court nothing about whether those members are ‘voters’ who would ‘’vote in North Carolina [but] will be unable to do so,’” the judge wrote. “For example, the Alliance does not explain how many of those 300 new members are out-of-state retirees who will join the Alliance when they move to North Carolina versus how many are North Carolinians who will join the Alliance when they retire.”
“The 30-day durational residency requirement may bar the former from voting in the 2024 elections in North Carolina, but not the latter. Moreover, retirees in the former group may choose not to try to vote in 2024 in North Carolina within a month of moving to North Carolina,” Dever added.
If the retirees survive the standing issue, their claim is not “ripe,” Dever concluded.
“That injury requires either (1) a non-North Carolinian retiree to move to North Carolina within 30 days of Election Day, join the Alliance, and attempt to vote in North Carolina during the 2024 elections; or (2) a current Alliance member to move precincts in North Carolina within 30 days of Election Day and attempt to vote in his or her new precinct during the 2024 elections. In other words, the Alliance’s alleged injuries are ‘contingent upon a decision to be made by a third party that has not yet acted,’” Dever wrote. “Accordingly, the Alliance’s claims are not ripe, and the court dismisses its amended complaint for lack of jurisdiction.”
Dever also rejected the argument that the 30-day residency requirement violates the US Constitution’s First and 14th Amendments and Section 202 of the federal Voting Rights Act.
“The 30-day durational residency requirement ‘serves North Carolina’s legitimate purpose to determine whether certain persons in the community are bona fide residents by dissuading would-be fraudulent voters who remain in a false locale for a short time before an election,’” the judge wrote. “Moreover, ‘’making sure that a voter resided in North Carolina for [30 days] serves the State’s interest in providing for an educated electorate with at least some minima] ties to the State’ because ‘campaign spending and voter education occur largely during the month before an election.’ Each of these interests is sufficiently weighty to support the 30-day durational residency requirement.”
The judge rejected the plaintiffs’ attempt to block the residency requirement for the 2024 election. “[E]ven if the Alliance’s claims eke across the plausibility line, the Alliance is not entitled to a preliminary injunction,” he wrote.
“[T]he Alliance fails to demonstrate that it is likely to succeed on the merits of its constitutional claim or its Section 202 claim or that it will suffer irreparable injury absent the requested preliminary injunction,” Dever wrote. “By contrast, ‘enjoining North Carolina (through its public officials) from enforcing [the 30-day durational residency requirement in the 2024 elections] would constitute a form of irreparable injury.’”
Dever took offer the case after US District Judge William Osteen transferred the dispute in May from North Carolina’s Middle District to Dever’s Eastern District.
State legislative leaders filed court documents in December seeking to dismiss the lawsuit. At the same time, lawmakers offered the alternative of transferring the case to the Eastern District.
“Half a century ago, the North Carolina General Assembly required that every citizen must ‘have resided in the State of North Carolina and in the precinct in which the person offers to vote for 30 days next preceding an election’ to ‘be qualified to vote in the precinct in which the person resides,’” according to a memorandum lawmakers filed last year.
“But Plaintiff North Carolina Alliance for Retired Americans claims to have discovered that this voter qualification law and the constitutional provision that authorizes it, N.C. Const. art. II, §2, para. 1, violate the VRA Amendments of 1970 and — due to a Supreme Court case from 1972 — the U.S. Constitution.”
“Despite its claims to the contrary, the Alliance has not unearthed violations of the VRA and the Constitution that have hidden in plain sight for fifty years,” lawmakers’ lawyers argued. “Even so, this Court cannot reach those merits issues because the Alliance, which is an organization that allegedly consists solely of members already residing in North Carolina, lacks standing.”
“To establish this Court’s jurisdiction, ‘the party seeking review’ must itself ‘be among the injured,’” legislators added. “The Alliance is not among the allegedly injured. It failed to plead that any of its members were unqualified to vote in an election at the time it filed the complaint. And the Alliance has not alleged any injury to its own rights.”
“Acting like a roving private attorney general, the Alliance waited to sue in an improper venue after its own claims became barred by laches and while any future member’s claim remained unripe,” lawmakers wrote. “This Court should dismiss the complaint or, alternatively, transfer the case to the Eastern District, where all the parties reside.”
The legal term “laches” refers to the court’s ability to reject a lawsuit if a plaintiff waited too long to assert his claims.
The October 2023 lawsuit initially called for an injunction against the 30-day residency rule.
“The Voting Rights Act (“VRA”) prohibits states from preventing otherwise eligible voters from voting for President and Vice President based on how long they have resided in the state before election day. And the U.S. Constitution prohibits such requirements in all elections,” according to the complaint filed in US District Court.
“To be sure, both the VRA and the U.S. Constitution allow states to impose short, pre-election registration requirements, and to limit registration and voting to bona fide residents,” the lawsuit added. “Specifically, the VRA authorizes registration deadlines up to 30 days before a presidential election. The U.S. Constitution allows short, pre-election registration deadlines where ‘necessary to permit preparation of accurate voter lists.’ And states are entitled to limit registration to voters who are bona fide residents.”
“But a registration requirement is different from a pre-election durational residency requirement, which the VRA absolutely prohibits in presidential elections, and which impinges on fundamental rights to vote and travel, with no adequate justification, in all elections,” the complaint argued. “Both the VRA and the U.S. Constitution protect voters from being denied the fundamental right to vote simply because they moved to another state shortly before election day if they otherwise comply with the state’s registration deadlines and other requirements.”
“North Carolina law violates these federal protections by imposing a pre-election durational residency requirement that is longer than the registration deadline, and that therefore prevents voters who could otherwise lawfully register and cast ballots from doing so just because they moved into the state too recently,” according to the complaint. “This requirement applies an arbitrary residency requirement to deny voters their right to participate in elections in their new domicile.”
The challenged state law — NC Gen Stat. § 163-55(a) — sets a residence period for state elections. It says, “Every person born in the United States, and every person who has been naturalized, and who shall have resided in the State of North Carolina and in the precinct in which the person offers to vote for 30 days next preceding an election, shall, if otherwise qualified, … be qualified to vote in the precinct in which the person resides.”
“North Carolina law also requires voters to attest under penalty of perjury that they have resided in the state for at least 30 days before the date of the election,” the lawsuit argued. “And North Carolina law includes no exception for presidential and vice-presidential elections.”
“These laws flatly violate both the VRA and the U.S. Constitution,” according to the complaint.
“To ensure that North Carolina voters, including the members and constituents of the Alliance, will not be denied their right to vote in violation of the VRA and the U.S. Constitution, the Alliance seeks an order from this Court declaring the Durational Residency Requirement unlawful and enjoining its enforcement because it: (1) violates Section 202 of the VRA, and (2) violates the First and Fourteenth Amendments of the U.S. Constitution,” the lawsuit added.
The alliance is a 501(c)(4) “social welfare organization” affiliated with the Alliance for Retired Americans. “The mission of the Alliance and its nationwide affiliate is to ensure social and economic justice and full civil rights for retirees, with particular emphasis on safeguarding their right to vote,” according to the complaint. The group says it has about 52,000 members in North Carolina.
The group claims the residency requirement “harms new members of the Alliance who move to North Carolina within the month leading up to any federal election.” The 30-day requirement also “directly threatens the Alliance’s mission, which relies on the electoral engagement of its members.”
“By systematically preventing many of the Alliance’s members from voting in the first year of their move, the Durational Residency Requirement undermines the Alliance’s get-out-the-vote work in North Carolina and its advocacy work on other public policy issues that are critical to its membership, including the pricing of prescription drugs and protecting benefits from Social Security, Medicare, and Medicaid, making the Alliance less effective in furthering its mission than it otherwise would be, and requiring it to spend additional resources that it would otherwise spend in other ways,” the complaint argued
Elias is not named as one of the attorneys representing the alliance, but court documents list lawyers working for his Washington, DC-based Elias Law Group. Elias has challenged other state election laws, including election maps.
The case is titled North Carolina Alliance for Retired Americans v. Hirsch.