Parties cannot reach deal to avoid court order in two election law disputes

Lawyers for the plaintiffs, State Board of Elections, legislative leaders, and Republican Party did not reach a deal Thursday to avoid a court order in two federal lawsuits challenging North Carolina’s new election law.

A court filing Thursday afternoon alerted US District Judge Thomas Schroeder that the parties in the two suits could not comply with his deadline for avoiding court action.

“On December 28, 2023, the Court directed the parties, through undersigned counsel, to meet and confer and to notify the Court within seven days if the parties have found a basis to resolve Plaintiffs’ motions without a court order. The parties have conferred and are unable to resolve the motions at this time,” according to the two-paragraph status report.

Schroeder had set the seven-day deadline after a Dec. 28 hearing in Winston-Salem.

Both suits target provisions within Senate Bill 747. The election reform legislation became law when the Republican-led General Assembly overrode Democratic Gov. Roy Cooper’s veto in October.

Last week’s hearing focused on one provision of the law. It’s called the “undeliverable mail provision.” It addresses the eligibility of votes cast through same-day voter registration.

Left-of-center activist groups working with high-profile Democratic operative Marc Elias’ law firm targeted that provision alone in a federal suit. A second suit filed by the Democratic National Committee and state Democratic Party cites the undeliverable mail provision and other pieces of SB 747.

Under existing law, elections officials submit notices by mail to the address listed on a same-day voter registration form. If two notices return to a local elections office as undeliverable, elections officials retrieve the same-day voter’s ballot. It does not count in an election tally.

Starting Jan. 1, SB 747 calls for elections officials to remove a same-day ballot after one piece of undeliverable mail.

Plaintiffs seek an injunction from Schroeder blocking that portion of the law from taking effect. They indicated during last week’s hearing that they would accept a court order calling for the State Board of Elections to set up a process for notifying a same-day voter that his registration has been rejected. The voter would have a chance to challenge that decision.

When lawyers on the other side of the case did not reject that option, Schroeder called on the parties to spend the next week trying to reach a deal that would avoid a court order.

Legislative leaders, the State Board of Elections, and Republican Party groups all urged Schroeder in December to reject an injunction.

“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.

“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 in one of the suits argued in their initial complaint 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.