Judge to take first look Wednesday at three federal lawsuits challenging NC election law

Carolina Journal photo by Mitch Kokai

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  • US District Judge Thomas Schroeder has scheduled a status conference Wednesday afternoon for three federal lawsuits challenging provisions of North Carolina;'s new election law.
  • The North Carolina State Board of Elections requested the conference. The state board noted that all three lawsuits challenge provisions affecting same-day voter registration. Changes are scheduled for implementation in February for the March primary.
  • In one case, plaintiffs have indicated they will seek a preliminary injunction against the changes. In another case, plaintiffs seek to have the entire legal dispute resolved before the November general election.

A federal judge has scheduled a status conference Wednesday afternoon for three federal lawsuits challenging North Carolina’s new election law. The State Board of Elections requested the hearing after consulting lawyers for plaintiffs in the three separate cases.

Each suit challenges changes in state law dealing with same-day voter registration. One of the suits also targets other provisions in Senate Bill 747, enacted on Oct. 10 over Gov. Roy Cooper’s veto.

US District Judge Thomas Schroeder will address timing issues for the three lawsuits at 3 p.m. Wednesday in Winston-Salem.

“The challenged provisions in SB 747 will be put into practice on February 15, 2024, when early voting starts for the March 2024 primary,” warned state Justice Department lawyers representing the state elections board.

The same document indicated that one set of plaintiffs plans to seek a preliminary injunction blocking new same-day voter registration provisions from taking effect. In a second case, plaintiffs “are seeking a trial and final judgment on the merits with time to administer the Court’s ruling in advance of the November 2024 general election.”

“State Board Defendants are the only parties involved in each of the three cases,” Justice Department lawyers wrote. “Accordingly, State Board Defendants seek with this motion a status conference to discuss and possibly resolve certain issues at this early stage in an effort to conserve the resources of the parties and the Court, and to ensure an orderly, coordinated, and efficient timeline for resolution of any requests for preliminary relief. Such issues include the possibility of consolidation and a single uniform schedule for any and all requests for preliminary relief is all three cases.”

The document emphasized the “need to resolve any preliminary motions in an expedient manner given the proximity of the March 2024 primary.”

The Republican National Committee, North Carolina Republican Party, and two local GOP officials asked the court on Oct. 26 to allow them to intervene in all three lawsuits.

The Democratic National Committee and North Carolina Democratic Party filed one of the suits. A group of plaintiffs working with Democratic lawyer Marc Elias’ law firm filed a second. Activist group Democracy NC filed a third.

In addition to same-day registration changes, challenged provisions include items related to party-aligned poll observers and a new Election Day deadline for mailed-in absentee ballots.

The RNC and state GOP are also seeking intervention from former Cumberland County Republican Party chair Brenda Eldridge and current Pasquotank County chair Virginia Ann Wasserberg. Eldridge and Wasserberg have worked as poll observers.

“The way to inspire confidence in American elections — and their outcomes — is to apply rules that are clear and fair to all eligible voters, candidates, and political groups,” according to a memorandum filed in connection with the GOP’s motion to intervene. “Toward that end, the North Carolina General Assembly recently passed S.B. 747, which revises the State’s election code to provide appropriate safeguards and transparency while still offering voters ample opportunities to cast a ballot.”

“In ordinary political climates, this pedestrian [law] would be welcomed as part of the ‘substantial regulation of elections’ that is necessary ‘if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes,’” the memo continued. “But as a sign of the times, S.B. 747 met immediate litigation, as eight Democratic Party-affiliated organizations and allies, represented by six law firms, filed three lawsuits in this Court, two of them the same day S.B. 747 passed.”

“Armed with hyperbole and mischaracterization, these Plaintiffs pose a long list of objections to various aspects of S.B. 747,” Republican lawyers argued. “These include far-reaching assertions, such as that an election-day ballot-receipt deadline violates the Constitution and that the Voting Rights Act forbids poll-observer participation at voting places. One set of Plaintiffs has already moved for provisional relief, and similar requests may follow from the others.”

“The question before the Court today is not whether any of these challenges has merit, but whether this litigation of paramount public importance will proceed with or without the participation of one of the nation’s two major political parties,” Republican lawyers wrote.

Neither the Democratic Party-aligned plaintiffs nor the State Board of Elections defendants are taking a position on GOP participation in the three cases, according to the memo.

“There is good reason for the Court to grant this motion,” Republican lawyers argued. “The State’s executive branch is unlikely to vigorously defend S.B. 747, which passed over the Governor’s veto. And although the State’s legislative leaders have moved to intervene (as is their right), this state of affairs will (at best) place eight entity Plaintiffs represented by six law firms against one set of institutional-capacity intervenors represented by one law firm.”

“One need not doubt the superb skill of that latter firm to see that this case, as currently postured, lacks the parity necessary to ensure public confidence in the outcome,” the GOP memo continued. “As the Democratic Party itself observed, ‘political parties usually have good cause to intervene in disputes over election rules.’ That is why, in numerous cases concerning election rules, political parties are virtually always allowed to intervene. If intervention is appropriate in any election case, this is it.”

SB 747 became law on Oct. 10 when the state House and Senate voted to override Cooper’s veto of the election reform measure.

In addition to a Democratic governor’s veto, the Republican memo noted that Democratic state Attorney General Josh Stein “has publicly opposed” the new election law. “It is unlikely that Democratic Party officials will vigorously defend laws they have publicly opposed from challenges by eight Democratic Party-affiliated (or allied) organizations,” GOP lawyers argued.