Legislative leaders seek dismissal of elections lawsuit tied to Marc Elias

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  • Top legislative leaders are asking a federal judge to dismiss two election-related lawsuit. One involves plaintiffs working with high-profile Democratic operative Marc Elias' law firm. The other involves both the Democratic National Committee and North Carolina Democratic Party.
  • Both suits challenge a provision in Senate Bill 747 dealing with same-day voter registration. The Democratic suit also challenges provisions changing the mail-in absentee ballot deadline and changing rules for poll observers.
  • Lawmakers argue that the organizations and individuals challenging the law lack standing to bring suit. Legislators also contend that the plaintiffs cannot prove an injury that courts can address.

Top legislative leaders are asking a federal judge to dismiss two lawsuits challenging portions of North Carolina’s new election law. Plaintiffs in one case are working with high-profile Democratic operative Marc Elias’ law firm.

The Democratic National Committee and state Democratic Party filed the second suit.

The Elias Law Group suit with plaintiffs led by Voto Latino, Watauga County Voting Rights Task Force, and Down Home North Carolina challenges a portion of the new law affecting same-day voter registration.

The targeted legislation, Senate Bill 747, was designed “to ensure that North Carolina elections are fair and non-partisan,” lawyers for Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, wrote in a court filing Tuesday.

Plaintiffs filed suit “within hours” of the General Assembly’s vote to override Gov. Roy Cooper’s veto of SB 747. “Specifically, Plaintiffs allege that S.B. 747: (1) denies Plaintiffs’ procedural due process rights under the 14th Amendment (Count I); and (2) presents an undue burden on right to vote under the 1st and 14th Amendments (Count II). Both claims fail,” legislators’ lawyers wrote.

Lawmakers reminded the court that voters in North Carolina have plenty of opportunities to register for an election. “Under North Carolina law, citizens can register to vote in person, online, via mail, or even at the DMV up to 25 days prior to election day,” according to the court filing. “For voters who miss this 340-day window, North Carolina provides an accommodation in the form of SDR during the early voting period, which runs for seventeen days.”

The state also offers “no-excuse” absentee voting. “Finally, as an additional accommodation to all voters, North Carolina also allows everyone to cast a provisional ballot on election day or during in-person early voting,” legislators’ lawyers wrote. “Under no circumstance is an election worker allowed to deny an individual the right to vote a provisional ballot.”

The challenged state law involves mail sent to people who choose the same-day registration option. Under SB 747, a ballot will be removed from consideration if one piece of mail sent to the voter’s supplied address returns to election officials as undeliverable. Prior state law required two pieces of undeliverable mail before a vote could be discounted.

Lawmakers argued that the plaintiffs lack legal standing to challenge the change. “Here, Plaintiffs’ allegations amount to nothing more than generalized grievances and speculation,” lawmakers’ lawyers wrote. “Moreover, the alleged harm throughout the Complaint is the same for all North Carolina citizens and lacks the specificity necessary for standing.”

“Here, Plaintiffs failed to plead facts sufficient to show that, if the first verification card is returned as undeliverable, a second verification card sent to the same incorrect address would remedy the issue,” lawmakers’ lawyers added. “Thus it is unclear how enjoining S.B. 747, and falling back to the two-mail verification, would redress Plaintiffs’ concerns. Finally, S.B. 747 can be read to provide Plaintiffs with the remedy they seek, a notice and opportunity to cure.”

The old law replaced by SB 747 did not address the concerns plaintiffs raised, lawmakers argued.

“Plaintiffs make much ado about the fact that voters who fail mail verification do not receive notice, but the pre-S.B. 747 version of the law likewise provided no notice when a voter failed mail verification,” according to the court filing. “And the statutory right to register and vote has long been subject to a mail verification process. … Because Plaintiffs misinterpret the applicable statutory scheme, and identical due process is provided for registration denials of same-day registrants and timely registrants, the risk of harm under S.B. 747 to a voter is minimal and no additional procedure is needed.”

Legislative leaders defended the new law. “S.B. 747 is a manifestation of the General Assembly’s desire to expand opportunities to register and vote and to work hand-in-hand with the [State Board of Elections] to ensure votes are timely counted,” lawmakers’ lawyers wrote. “This promotes at least two government interests: (1) preserving the integrity of the election process and (2) instilling confidence in the electorate. These clear interests have been protected by the Courts for decades.”

Plaintiffs working with the Elias Law Group argue that the undeliverable mail provision threatens to “undermine” same-day voter registration in North Carolina.

“Prior to the passage of S 747, North Carolina’s same-day registrants’ votes were counted unless the post office returned two pieces of ‘undeliverable’ mail,” according to the original October complaint. “At worst, two undeliverable notices might result in a public challenge to the same-day registrants’ vote being counted, if a challenge was received by 5 p.m. on the day of the election. But even if a same-day registrants’ ballot was challenged, the registrant was entitled to notice and a hearing to defend their vote in the face of such a challenge.”

“The Undeliverable Mail Provision of S 747 prohibits Defendants from registering a same-day voter and counting that voter’s ballot if the United States Postal Service (“USPS”) returns as ‘undeliverable’ a single notice sent to that voter … before the close of business on the business day before the canvass,” the complaint continued. “Now, these voters do not receive any notice that their ballot was removed from the official count, let alone an opportunity to be heard in defense of their vote counting. Nor are they made aware that their registration was not effectuated. Instead, they are automatically disenfranchised and not registered to vote—all without being afforded any process to contest the removal of their votes from the count or their exclusion from the voter rolls.”

The suit says 104,336 voters used same-day registration in 2022, and 116,065 used same-day registration during the last presidential election in 2020.

Plaintiffs ask the federal court to declare the “undeliverable mail provision” unconstitutional under the First and 14th Amendments. They seek an injunction blocking election officials from enforcing the provision.

The Democratic groups challenge same-day voter registration changes, along with “the deadline for receipt of absentee ballots and rules governing poll observers.” SB 747 would require mail-in absentee ballots to arrive at local election offices by Election Day, ending the old law’s three-day grace period.

Republican legislators’ motion to dismiss the Democrats’ suit emphasizes the liberal nature of North Carolina’s election laws. “Only approximately twenty-two states and Washington, D.C. offer same-day voter registration,” lawmakers’ lawyers wrote. “By offering SDR to any voter, North Carolina is providing its citizens with more opportunities to register and vote than the majority of other states.”

“The same is true for absentee voting: North Carolina is one of only approximately half of the states that allow no-excuse absentee voting,” the motion continued. “In requiring the absentee ballot to be received on election day, S.B. 747 now brings North Carolina in line with the majority of other states, which have the same requirement.”

Editor’s note: This article has been updated to include legislative leaders’ motion to dismiss a lawsuit filed by Democratic Party groups.