Lawmakers reject trial this year on 30-day voter residency requirement

Carolina Journal photo by Mitch Kokai

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  • Top legislative leaders oppose a plan to combine an injunction hearing and trial in a lawsuit challenging North Carolina's 30-day residency requirement for voters.
  • Plaintiffs working with Democratic operative Marc Elias' law firm proposed the plan in February. A win at trial this year could kill the residency requirement before the November general election.
  • Lawyers for top legislative leaders complain about the plaintiffs' "sluggishness" in pursuing the case. Critics "delayed over two decades before finally challenging North Carolina’s longstanding 30-day voter qualification law," lawmakers' lawyers wrote.

North Carolina’s top legislative leaders oppose a plan to combine an injunction hearing and trial in a lawsuit challenging the state’s 30-day residency requirement for voters. Plaintiffs working with Democratic operative Marc Elias’ law firm proposed the plan last month.

The North Carolina Alliance for Retired Americans, working with the Elias Law Group, seeks a trial this year. A legal win could kill the residency requirement before the general election in November.

“The Alliance delayed over two decades before finally challenging North Carolina’s longstanding 30-day voter qualification law in October 2023,” wrote lawyers representing state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. “Even then, Plaintiff did not move for a preliminary injunction.”

Critics of the residency requirement waited instead until January to seek an injunction, lawmakers’ lawyers wrote. “Plaintiff did not request a hearing on its preliminary injunction motion at that time. Rather, the Alliance filed this motion only after briefing concluded on the preliminary injunction motion and Intervenors’ motion to dismiss.”

Berger and Moore’s lawyers contrast the plaintiffs’ typical “sluggishness” with their “sudden desire for the Court to expedite trial on the merits before the 2024 general election.”

If the federal court rejects lawmakers’ motion to dismiss the case, the plaintiffs still could secure an injunction before the general election.  “There is no need for the Court to race toward trial after Plaintiff’s decades of delay,” lawmakers’ lawyers wrote.

The State Board of Elections is the official defendant in the case. The board does not oppose the consolidation plan, according to paperwork plaintiffs filed in February.

“Consolidation is appropriate here because this case turns on legal questions, for which further factual development is not required,” wrote the plaintiffs’ lawyers.

To address a preliminary injunction in the case, a court must decide whether the 30-day residency rule violates the federal Voting Rights Act and US Constitution. “Those same issues will be dispositive on the merits,” according to the court filing. “Plaintiff’s facial challenge to the 30-Day Residency Requirement does not depend on any facts about the 30-Day Residency Requirement’s application to any particular election. Thus, because further factual development will not aid the Court, this case is well-suited to consolidation with the merits.”

“[R]eaching the ultimate issues of the case on an expedited timeline would ‘serve the interests of justice’ by allowing for final resolution of the merits before the ‘imminent general election,’” plaintiffs’ lawyers argued. “Because of the importance of the issues at stake, and the harm from delaying relief, ‘civil rights cases are especially suitable for such simultaneous development.’”

State legislative leaders filed court documents in December seeking to dismiss the lawsuit.

“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 Oct. 2 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 four of the five attorneys listed in court documents work 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.