Lawmakers oppose injunction in 30-day voter residency case

Speaker Tim Moore, R-Cleveland, and Senate leader Phil Berger, R-Rockingham, hold a press conference announcing a budget agreement on the evening of September 19, 2023.

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  • Top legislative leaders oppose an injunction in a federal lawsuit challenging North Carolina;'s 30-day residency requirement for voters.
  • A retirees' group working with high-profile Democratic operative Marc Elias' law firm is fighting the requirement.
  • Lawyers for Republican legislative leaders say the plaintiffs have not discovered a constitutional violation "hiding in plain sight for half a century.” The residency requirement has been in place for 50 years,

Top state legislative leaders urge a federal judge to reject an injunction in a lawsuit challenging North Carolina’s 30-day residency requirement for voters. A retirees’ group working with high-profile Democratic operative Marc Elias’ law firm is fighting the residency rule.

“For five decades, the North Carolina General Assembly has 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,’” lawmakers’ lawyers wrote Tuesday. “Plaintiff North Carolina Alliance for Retired Americans has existed for more than two of those decades.”

“Nevertheless, after waiting two decades to sue and another three months after filing suit, the Alliance suddenly seeks to preliminarily enjoin enforcement of this law and the constitutional provision that authorizes it,” the court filing continued. “The Alliance is not entitled to such equitable relief.”

“At the time the Alliance requested the injunction, it could not identify any specific member harmed by the law,” lawmakers’ lawyers wrote. “Nor has the Alliance established injury to the organization itself, which has sat on its claims so long that they are barred. … Claims of future harm are unripe, and this Court is an improper venue. Even so, the Alliance has not discovered violations of the VRA and the U.S. Constitution hiding in plain sight for half a century.”

VRA refers to the federal Voting Rights Act.

“After numerous elections occurred with the 30-day qualification in place, the Alliance belatedly asks the Court to nullify the law in its entirety. Such relief would be inequitable and irreparably harm North Carolina,” the court filing added.

Republican legislative leaders filed paperwork in December asking a federal court to rule on their motion to intervene in the lawsuit. If the court permits intervention, lawmakers want the case dismissed.

The latest court filing says the federal magistrate judge tied to the case has recommended granting lawmakers’ intervention. The deadline to object to intervention has passed, lawmakers’ lawyers wrote.

State Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed paperwork last October to intervene in the case.

The Oct. 2 lawsuit seeks 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 retirees 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

The case is titled North Carolina Alliance for Retired Americans v. Hirsch.