State elections board informs court about new same-day voter verification procedure

Image of voters in line is public domain by US Dept of Global Public Affairs, credit to OSCE/Thomas Rymer.

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  • The State Board of Elections updated its same-day registration guidance memo Monday to answer a federal judge's concerns.
  • US District Judge Thomas Schroeder issued a Jan. 21 injunction blocking elections officials from implementing a piece of the state's new elections law involving same-day registration.
  • The new memo spells out a process for notifying voters and giving them a chance to "cure" their ballots if a verification card mailed to their address returns as undeliverable.

The State Board of Elections has addressed a federal judge’s concerns about a new state law changing the process for checking addresses tied to same-day voter registration. The board’s lawyers filed paperwork Tuesday in three federal court cases explaining its latest actions.

US District Judge Thomas Schroeder issued a Jan. 21 injunction against the board. Schroeder blocked elections officials from disqualifying ballots of same-day voters if a single document mailed to the voter returned to county elections offices as undeliverable.

Schroeder called on elections officials to develop a process to notify voters before tossing their ballots.

“State Board Defendants have issued a numbered memorandum establishing a process that provides a notice and opportunity to cure for same-day registrants whose first notice is returned as undeliverable,” state lawyers defending the elections board wrote Tuesday.

Lawyers attached the state elections board’s Numbered Memo 2023-05, which was updated Monday. The memo outlines a “notice and cure process” for same-day voters with undeliverable mail.

“The county board shall send a ‘Notice to Verify Your Address’ to the registrant by mail and email, if provided on the registration form, within one business day of receiving the undeliverable verification card,” according to the memo. “County board staff shall also call the registrant to provide the information on the Notice orally, if the registration form includes a phone number.”

“The registrant may verify their address (i.e., ‘cure’ the failed mail verification) by submitting a copy of a same-day registration ‘HAVA document’ to the county board no later than 5 p.m. on the day before county canvass,” the memo continued.

HAVA refers to the Help America Vote Act of 2002.

“The Notice will instruct the registrant to provide a document that is different from the one they used when registering during early voting,” the memo explained. “The document copy may be provided via email (with scanned or photographed document), fax, mail, or in-person delivery during business hours. The Notice shall offer the registrant the opportunity to come in person to the canvass meeting to verify their address, if they are unable to provide an acceptable ‘HAVA document’ by the deadline above. In that case, the county board shall take the registrant’s testimony under the first oath in G.S. § 163-86(c) and shall consider any documentation offered by the registrant.”

If undeliverable mail arrives at the county board on the day before the vote canvass or later, elections staff will send no notice. “[T]he registrant’s ballot must remain in the official count,” the memo explained. “At that point, there is not enough time to notify the voter and provide a meaningful opportunity to cure.”

Schroeder’s 94-page order nine days ago indicated that the State Board of Elections could not disqualify same-day ballots without providing voters notice and an opportunity to be heard.

Voters can register on the same day that they cast ballots in early voting. Early voting for the 2024 primary election starts Feb. 15.

Plaintiffs in three federal lawsuits had challenged the “undeliverable mail provision” of the new state election law. Under the old law, elections officials could remove a same-day voter’s ballot after receiving two pieces of undeliverable mail sent to the voter’s address. Senate Bill 747, enacted in October, would have cut the number of mailings from two to one.

“Here, Plaintiffs are likely to show that the undeliverable mail provision of S. 747 imposes a substantial burden on SDR voters because it lacks notice and opportunity to be heard before removing the votes of a cast ballot from the count,” Schroeder wrote.

“In the last four even-year elections, 1,799 out of 100,578; 696 out of 45,666; 2,151 out of 116,326; and 391 out of 34,289 same-day registrants have failed address verification,” the judge wrote. “These numbers are based on the State’s prior two-card system, however, and the court can reasonably infer that there would not be any fewer failures if State Board Defendants send only one mail card.”

“State Board Defendants and Intervenors, meanwhile, have provided no evidence at this stage that any of the several thousand same-day registrants who have failed address verification since its inception in 2008 was ineligible to vote on the ground of improper residency,” Schroeder wrote.

“Plaintiffs are also likely to show that section 163-82.6B(d) deprives same-day registrants of notice and opportunity to be heard before their ballots are rejected through no fault of their own,” the judge added.

“For SDR voters, the lack of notice and opportunity to be heard is inconsistent with the State’s interest in counting all eligible voters’ ballots,” Schroeder concluded. “Moreover, given the lack of showing of an administrative burden on county boards of elections, the risk of irreparable injury, the balance of equities, and the public interest all weigh in favor of requiring notice and an opportunity to be heard.”

State elections officials cannot enforce the undeliverable mail provision “without first providing such voter notice and an opportunity to be heard. … This injunction shall remain in force until such time as a procedure for notice and opportunity to be heard is implemented in accordance therewith.”

Schroeder rejected all other arguments plaintiffs offered to block even more of the new election law.

State House Speaker Tim Moore, R-Cleveland, and Rep. Grey Mills, R-Iredell, responded to Schroeder’s order. Mills chairs the House Election Law and Campaign Finance Reform Committee.

“The vast majority of Senate Bill 747 is still in effect including increased poll observer access, bans on special interest money funding election offices, and making election day the last day to receive absentee ballots,” Moore and Mills said in a prepared statement. “The court order requires relatively minor changes to one small part of the bill, and we are working with our attorneys and the State Board of Elections to ensure that the entire bill is in effect before the primary and general elections this year. We will never stop fighting for election integrity on behalf of North Carolina’s voters.”

The judge’s order arrived 17 days after parties in the election dispute notified him that they could not reach a deal to avoid court action.

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

Under the previous state law, elections officials submitted notice cards by mail to the address listed on a same-day voter registration form. If two notices returned to a local elections office as undeliverable, elections officials retrieved the same-day voter’s ballot. It would not count in an election tally.

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

Plaintiffs seeking an injunction from Schroeder indicated during a 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.”

Democrats hold a 3-2 majority on the State Board of Elections. That board also opposed 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 asked the federal court to declare the “undeliverable mail provision” unconstitutional under the First and 14th Amendments.