Legislators urge federal judge to toss out unaffiliated voters’ election lawsuit

Carolina Journal photo by Mitch Kokai

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  • Top legislative leaders urge U.S. District Judge William Osteen to dismiss a lawsuit from unaffiliated voters. It challenges a state law limiting membership on the State Board of Elections to Democrats and Republicans.
  • Lawmakers say the plaintiffs lack standing to sue. They also argue that plaintiffs' complaints "run headlong into the North Carolina Constitution."

North Carolina’s top legislative leaders believe a federal judge should dismiss a lawsuit that aims to add unaffiliated voters to the state’s elections board.

House Speaker Tim Moore, R-Cleveland, and Senate leader Phil Berger, R-Rockingham, filed a motion Friday to dismiss the case Common Cause v. Moore.

Left-of-center activist group Common Cause and five individual unaffiliated voters are challenging a state law, N.C. Gen. Stat. § 163-19. It dictates the terms of state elections board membership. The governor appoints the five-member board, based on recommendations from the two major parties. The governor’s party exercises a 3-2 majority.

“Plaintiffs argue that by not allowing unaffiliated voters to serve on the State Board, their First Amendment and Equal Protection rights are violated. However, these Plaintiffs lack standing to bring those claims,” wrote legislators’ attorneys. “And Defendants, members of the legislative branch, who enact but do not enforce laws, are immune from suit for such claims in federal court.”

“Even if Plaintiffs could overcome these issues, the federal constitution does not support such associational claims, and, these claims run headlong into the North Carolina Constitution, which has been interpreted by North Carolina courts to require that the Governor be able to control the State Board of Elections,” according to lawmakers’ court filing.

“Counterbalancing one major party’s views and priorities on the State Board with that of the other major party’s views, therefore, is a rational approach to election administration adopted by numerous other states,” legislative leaders argued.

Lawmakers remind U.S. District Judge William Osteen that the General Assembly tried to create a state elections board with an even number of Democrats and Republicans. Gov. Roy Cooper sued to block the change. Cooper won in court.

Lawmakers then approved a nine-member elections board with four Democrats, four Republicans, and an unaffiliated ninth member.

“The Governor then sued again, arguing that the 4-4-1 political makeup of the Board also violated the separation of powers doctrine in our state Constitution by preventing him, as chief executive, from controlling the views and priorities of the State Board,” according to legislators’ memorandum. “A three-judge superior court panel agreed. … Following this decision, the General Assembly returned the administrative structure of elections, ethics, and lobbying to the 2016 structure.”

That 2016 structure includes the five-member elections board limited to the two major parties.

The Common Cause suit filed Aug. 2 asks a federal court to declare the elections board law “unconstitutional and void.” Common Cause also asks the court to block the General Assembly from enacting any new law for state elections board appointments that “discriminates against unaffiliated voters or penalizes them based on their decisions not to register as Republican[s] or Democrats.”

More than 2.57 million North Carolinians were registered as unaffiliated when Common Cause filed suit. More voters were registered as unaffiliated than as Democrats (2.49 million) or Republicans (2.21 million). Unaffiliated voters make up the largest voting group in 19 of North Carolina’s 100 counties, according to the original complaint.

“The state law barring plaintiffs and all other unaffiliated voters from serving on the State Board serves no public or valid purpose but instead is a means to entrench the Democratic and Republican political parties in power and give them exclusive control over the supervision, management, and administration of the elections system,” according to Common Cause’s complaint. “This law is ill-conceived because it renders ineligible a large pool of talented and able citizens from service on the State Board.”

Osteen has not said when he will address legislators’ motion to dismiss the case.