Lawmakers make case against suit for unaffiliated elections board members

Carolina Journal photo by Mitch Kokai

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  • N.C. legislative leaders have filed a final brief asking a federal judge to dismiss the Common Cause v. Moore lawsuit. It aims to give unaffiliated voters access to seats on the State Board of Elections.
  • Lawmakers argue that plaintiffs lack standing to file suit. A brief filed Friday also contends that plaintiffs mistakenly link service on the state elections board with the right to vote.

N.C. legislative leaders have submitted their final written arguments against a lawsuit that would give unaffiliated voters a right to sit on the state elections board. Lawmakers are asking U.S. District Judge William Osteen to dismiss the case.

Left-of-center activist group Common Cause and five unaffiliated voters are pursuing the lawsuit. They argue that the current structure of the State Board of Elections discriminates against voters who refuse to register as Democrats or Republicans. The current five-member board features three members from the governor’s party and two members from the other major party.

Legislative leaders contend that the plaintiffs lack legal standing to bring the lawsuit. “The crux of Plaintiffs’ argument regarding standing is that Plaintiffs are interested in service and willing to serve. However, the desire to see themselves or other unaffiliated registered voters serve on the North Carolina Board of Elections is not a sufficiently particularized injury to convey standing,” wrote attorney Martin Warf, representing legislative leaders.

“Plaintiffs argue that they have demonstrated standing by having a willingness to serve and the qualifications to do so,” Warf added. “The criteria for service on the North Carolina Board of Elections are not measured in years of dedicated service, but instead, in conditions about one’s service in active elections and electioneering campaigns — with gubernatorial appointments limited to those people who affiliate with one of the two highest political parties. Millions of North Carolinians meet these criteria; therefore, qualifications for service are not as select as Plaintiffs make them out to be.”

“The core of Defendants’ argument though, is that Plaintiffs cannot meet their individualized burden of showing a concrete, particularized injury beyond the assertion that a grievance is suffered by all North Carolinians who might think it best to have unaffiliated voters on boards of elections,” Warf wrote.

Lawmakers also argue that sovereign immunity blocks the lawsuit. Plus they say Common Cause and its allies mischaracterize the nature of their complaint.

“Plaintiffs’ insistence that this case is about the right to vote is erroneous,” Warf wrote. “This is not a case about the right to vote; it is a case about whether Plaintiffs have a constitutional right to serve in public office. They do not.”

The Common Cause v. Moore suit filed Aug. 2 asks a federal court to declare the elections board law —N.C. Gen. Stat. § 163-19 — “unconstitutional and void.” Common Cause also asks the court to block the General Assembly from enacting any new law for state elections board appointments that “discriminates against unaffiliated voters or penalizes them based on their decisions not to register as Republican[s] or Democrats.”

More than 2.57 million North Carolinians were registered as unaffiliated when Common Cause filed suit. More voters were registered as unaffiliated than as Democrats (2.49 million) or Republicans (2.21 million). Unaffiliated voters made up the largest voting group in 19 of North Carolina’s 100 counties, according to the original complaint.

“The state law barring plaintiffs and all other unaffiliated voters from serving on the State Board serves no public or valid purpose but instead is a means to entrench the Democratic and Republican political parties in power and give them exclusive control over the supervision, management, and administration of the elections system,” according to Common Cause’s complaint. “This law is ill-conceived because it renders ineligible a large pool of talented and able citizens from service on the State Board.”

There is no deadline for Osteen to decide whether the suit can move forward.