Legislators, GOP, state elections board all oppose injunction in federal election suit

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  • State legislative leaders, Republican Party groups, and the State Board of Elections all oppose a preliminary injunction in a federal lawsuit challenging North Carolina's new election law.
  • The North Carolina Democratic Party and Democratic National Committee seek an injunction blocking proposed changes affecting same-day voter registration.
  • Democrats' suit is one of three active cases challenging provisions of Senate Bill 747.

Legislative leaders, the Republican Party, and the State Board of Elections all filed documents this week opposing a preliminary injunction in a federal election lawsuit. The lawsuit challenges provisions in North Carolina’s new election law.

The North Carolina Democratic Party and Democratic National Committee filed the suit. It’s one of three active cases challenging provisions of Senate Bill 747. Democrats seek an injunction blocking changes that affect same-day voter registration.

“United States Supreme Court jurisprudence has long recognized that it is within the province of state legislatures to regulate voter qualifications,” wrote lawyers representing State Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. “In areas where Congress has declined to act, states have the authority to establish rules and regulations regarding the times, places, and manner for registered voters to cast their ballots. This authority includes ‘regulations relating to “registration.”’’

“The North Carolina General Assembly has exercised its broad constitutional power to regulate ‘the conditions under which the right of suffrage may be exercised’ by enacting S.B. 747,” lawmakers’ lawyers added. “The Democratic National Committee and the North Carolina Democratic Party (‘Plaintiffs’) seek to enjoin certain provisions of S.B. 747 relating to same-day voter registration. The majority of Plaintiffs’ claims in their Motion for Preliminary Injunction (the ‘Motion’) are based upon an unreasonable reading of existing election laws and the plain text of S.B. 747 itself.”

“To the extent that S.B. 747 actually altered existing law, this Court should defer to the General Assembly’s reasonable interpretations of S.B. 747 because the same-day registration provisions do not impose an undue burden on the right to vote or deprive any North Carolinians of their due process rights,” Berger and Moore’s lawyers added.

Lawyers for Republican Party groups filed a separate document opposing a preliminary injunction.

“In their rush to declare that ‘North Carolina Senate Bill 747 (“S.B. 747”) is a multi-pronged assault on the right to vote,’ Plaintiffs apparently did not read the new law or analyze its interaction with the previously enacted North Carolina election law, which it amends,” according to GOP lawyers. “Two of the three arguments Plaintiffs raise fail simply because Plaintiffs do not understand what they want enjoined. Plaintiffs attack a strawman law, and their invitation for this Court to do the same should be rejected.”

“Their proposed injunction would have unpredictable and noxious results — beginning with the end of same-day registration,” GOP lawyers warned. “Equity calls for care and caution, and Plaintiffs’ reckless approach does not serve its ends.”

The State Board of Elections, with its 3-2 Democratic majority, also opposed an injunction in the case. “Plaintiffs’ motion for preliminary injunction should be denied because they cannot demonstrate a likelihood of success on the merits and the balance of equities favors implementation of the new same-day registration process,” wrote state Department of Justice lawyers who represent the elections board.

The lawsuit challenges a portion of SB 747 that reduces from two to one the number of follow-up mail verification notices for same-day voters.

“Instead of two mailed notices, same-day registrants are notified in person at same-day registration that the address provided on their registration form will be verified by a single notice mailing sent to their address,” elections board lawyers wrote. “Thus, after leaving early voting, same-day registrants know that the address-verification mailing is coming, and they know that if they do not receive it, they will have failed address verification, they will not be registered, and their vote will not be counted.”

“Taken as a whole, the burden this places on an individual registering to vote using same-day registration is a reasonable, nondiscriminatory restriction that is counterbalanced by the government interest in ensuring only eligible votes are counted,” according to the elections board’s court filing.

The Democratic lawsuit arrived on the same day that state lawmakers voted to override Gov. Roy Cooper’s veto of SB 747. Plaintiffs working with Democratic elections lawyer Marc Elias’ law firm filed a separate complaint on the same day.

SB 747 sets Election Day as the deadline for mail-in absentee ballots, ending a three-day grace period under the state’s previous law. It bans private funding of elections administration. It clarifies rules for party-sponsored poll site election observers. It bans drop boxes for ballots. It makes a number of other changes in a 43-page document.

“North Carolina Senate Bill 747 (“S.B. 747”), which became law today, is a direct assault on the ‘most fundamental’ right to vote,” according to the Democrats’ initial complaint. “In fact, despite its innocuous-sounding name, ‘An Act to Make Various Changes Regarding Elections Law,’ S.B. 747 … is designed to undermine the right to vote in North Carolina.”

“The changes it adopts would make it much harder for some North Carolinians to register to vote, would allow ballots by same-day registrants to be rejected without any notice to the voter or any right to challenge the rejection, would permit an influx of intimidating and largely unconstrained poll observers into voting places, and would require the discarding of absentee ballots that are returned even a minute after the polls close on election day (no matter how far in advance of the election voters place their ballots in the mail),” the complaint added. “The U.S. Constitution, the North Carolina Constitution, and multiple federal statutes prohibit these myriad efforts at vote suppression, which will disenfranchise many North Carolinians.”

The suit seeks to block elections officials from: “(1) requiring same-day registrants to produce documentation that other registrants do not need to produce, (2) denying a same-day registrant’s application to register without providing that individual with sufficient notice and an opportunity to be heard, (3) rejecting a same-day registrant’s application to register based on the return of a single notice by the U.S. Postal Service as undeliverable, (4) refusing to include in the official vote totals any absentee ballots that are postmarked by election day and received after 7:30 p.m. on election day but before 5:00 p.m. three days after election day, (5) applying different voting-registration standards, practices, or procedures to different groups of individuals in the same county, (6) failing to provide a free access system by which same-day registrants can track their retrievable ballots, and/or (7) permitting poll observers to intimidate, threaten, or coerce or to attempt to intimidate, threaten, or coerce voters.”