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

Carolina Journal photo by Mitch Kokai

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  • Top state legislative leaders, the State Board of Elections, and state and national Republican groups all oppose an injunction in a federal lawsuit challenging one piece of North Carolina's new election law.
  • In a lawsuit called Voto Latino v. Hirsch, plaintiffs challenge a provision dealing with same-day voter registration. It's called the "undeliverable mail provision."
  • County elections officials would be required to remove a ballot from a same-day voter if a notice mailed to that voter's address is returned as undeliverable. Prior state law required two pieces of undeliverable mail before a same-day voter's ballot would be removed.

Top North Carolina legislative leaders, the State Board of Elections, and Republican Party groups all urge a federal court to reject an injunction in a lawsuit challenging a new state election law.

All three groups filed paperwork Wednesday in US District Court. They oppose the injunction sought by plaintiffs working with high-profile Democratic operative Marc Elias’ law firm.

The suit targets a single provision in Senate Bil 747, enacted in October after lawmakers voted to override a veto from Democratic Gov. Roy Cooper. Called the “undeliverable mail provision,” the disputed change in state law affects same-day voter registration.

If a notice mailed to a same-day voter’s stated address returns to elections officials as “undeliverable,” the law requires county elections officials to reject voter registration and retrieve the same-day ballot. The ballot does not count when votes are tabulated.

Prior state law required two mailings to be returned as undeliverable before a same-day ballot would be removed.

“The majority of Plaintiffs’ claims in their Motion for Preliminary Injunction are based upon an unreasonable reading of existing election laws and the plain text of S.B. 747 itself,” wrote lawyers representing Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. “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 deprive any North Carolinians of their due process rights.”

Lawyers representing the Republican National Committee and state GOP also opposed an injunction in the legal dispute.

“At issue is North Carolina’s same-day registration process, which occurs in a narrow time frame of about two weeks before election day and is utilized by a comparatively small subset of North Carolina voters,” GOP lawyers wrote. “Voters who register in person, by mail, or online as of the registration deadline 25 days before an election do not need this procedure. North Carolina is among the minority of states that merge registration and voting into one process to maximize access to the franchise. Its efforts are commendable and do not warrant federal judicial interference.”

“Plaintiffs’ preliminary-injunction motion raises a single due-process challenge to the Undeliverable Mail Provision, but it is unlikely to succeed,” GOP lawyers argued. “As a threshold matter, Plaintiffs’ challenge turns on a potential harm with a very small chance of occurring: a small fraction of mail is returned undeliverable; a fraction of that is returned in error.”

“Plaintiffs cannot show a likelihood of harm from this provision and are unlikely to prove … standing” to proceed with the lawsuit, the Republican filing continued. “Plaintiffs do not address the website sponsored by the North Carolina Board of Elections, which provides the notice Plaintiffs say is required in a way that bypasses the postal-error risk that undergirds Plaintiffs’ claim.”

The Republican groups emphasized previous election law decisions. “Established precedent holds that garden variety errors in election administration do not create constitutional problems, and Plaintiffs’ invocation of the Due Process Clause to bypass that principle is unpersuasive,” GOP lawyers wrote. “Although it is a best practice for states to maximize notice and hearing opportunities where ballots are not counted — as North Carolina has done — it would not work to administer election recounts, contests, or other processes in the manner Plaintiffs’ novel claim would require.”

Democrats hold a 3-2 majority on the State Board of Elections. That board also opposes an injunction in the case, titled Voto Latino v. Hirsch.

“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 Justice Department lawyers representing the elections board.

Plaintiffs argued in their initial lawsuit that the disputed 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 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 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. The requested injunction would block election officials from enforcing the provision.