State elections board urges courts to dump felon voting, DNC lawsuits

Karen Brinson Bell, executive director of the North Carolina State Board of Elections (image from

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  • The State Board of Elections filed paperwork Tuesday supporting dismissal of two federal election-related lawsuits.
  • One suit challenges North Carolina's law creating a crime for felons who vote before their rights have been restored. The Democratic National Committee and state Democratic Party filed the second suit to challenge portions of Senate Bill 747, an election reform law.
  • The elections board supports a federal magistrate judge's recommendation to dismiss the felon voting suit as moot.
  • The board defends portions of SB 747 ending a three-day grace period for mail-in absentee ballots and loosening restrictions on poll observers.

The State Board of Elections filed paperwork Tuesday supporting the dismissal of two federal election-related lawsuits. One focuses on voting rights for felons. The other targets North Carolina’s latest election reform law.

In the felon voting case, the elections board urged US District Judge Loretta Biggs to accept a magistrate judge’s recommendation to dismiss the suit as moot. In the second case, the board filed a motion to dismiss a suit filed by the Democratic National Committee and state Democratic Party against portions of Senate Bill 747.

Democrats hold a 3-2 majority on the State Board of Elections. Lawyers from Democratic Attorney General Josh Stein’s state Justice Department represent the board in both suits.

The North Carolina A. Philip Randolph Institute and Action NC are challenging the state law blocking felons from voting once they have completed active prison time.

“Plaintiffs, two organizations who brought this suit on behalf of themselves only, have consistently made clear the nature of their interest in this litigation – prospective voters in future elections,” wrote state lawyers in the latest court filing in the felon voting suit. “The passage of SB 747 entirely addresses Plaintiffs’ facial constitutional challenge.”

From now on, a felon voter can be charged with a crime only  “if he or she knows they are ineligible to vote, intentionally disregards the law, and casts a ballot,” according to the elections board’s filing. “Plaintiffs can no longer claim that the risk that prospective voters will be prosecuted on a strict-liability basis for voting unlawfully means that Plaintiffs must divert significant resources which would otherwise be used for other voter-education purposes.”

The elections board also targeted the plaintiffs’ “new ‘concrete interest’ in this litigation.” State lawyers described the plaintiff’s complaint: “if an individual who unlawfully voted in a prior election was investigated under the old Law, and if that investigation was referred to a District Attorney who decided to prosecute under the old Law, and if that prosecution garnered media attention, and if that media attention reached a potential felon voter, and if that voter became confused about their eligibility to vote because of the media attention, and if that voter became worried that he or she could be prosecuted for voting in a future election under a law that is no longer in effect, and if Plaintiffs engaged in get-out-the vote activities in a future election, and if Plaintiffs came into contact with that potential felon voter, then Plaintiffs will be required to divert significant resources from other get-out-the vote measures to educate that potential voter because of the chilling nature of the specter of prosecution from speculated wide publicity of such hypothetical prosecution under an old Law no longer in effect.”

“The Magistrate Judge correctly determined there is no relevant or reliable evidence in the record to support this new, speculative interest, and that the highly speculative nature of this hypothetical chain of events, none of which have occurred, is insufficient to establish a concrete interest in this litigation, thereby mooting this lawsuit,” the elections board’s lawyers argued.

In the other case, the DNC and state Democratic Party challenged multiple provisions of SB 747. One provision dealing with verification of same-day voter registration has been addressed by a new “cure” process the elections board detailed in a court filing this week.

The Democratic groups also challenged a provision of the law setting Election Day as the deadline for mail-in absentee ballots, along with a separate provision loosening restrictions on partisan poll observers.

The elections board’s new motion in the case calls for the dismissal of all but the same-day voter verification complaint.

State lawyers defended ending a three-day grace period for mail-in ballots that arrive after Election Day.

“No one disputes that, to administer an election, there must be a clear deadline for absentee ballots,” state elections board lawyers wrote. “North Carolina’s decision to change the state deadline is constitutional. The new absentee-ballot deadline is nondiscriminatory, as it applies to everyone who votes an absentee ballot (unless the deadlines for their ballots are governed by the separate procedures for military and overseas citizens’ ballots). The deadline is also reasonable, particularly considering that, nationwide, ‘the most common deadline for absentee/mail ballots to be returned by any method is by the close of polls on Election Day.’”

The elections board also defended new standards for poll observers. “[S]ection 163-45.1(g) provides that poll observers are not to be prohibited from taking notes; listening to conservations between voters and election officials related to election administration; moving about the voting place, including the designated curbside voting area; leaving and reentering the voting enclosure; communicating via phone outside the voting enclosure; or witnessing a voting place’s opening and closing procedures,” the board’s lawyers wrote. “However, the above conduct is allowed only if it does not ‘interfere with the privacy of any voter or the conduct of the election.’ In addition, such conduct is not allowed if it otherwise violates the … laws regulating the conduct of observers and others in and around voting places.”

“The State Board has already issued guidance on what conduct ‘interfere[s] with the privacy of any voter or the conduct of the election,’ and the application of other laws limiting poll observers’ behavior,” the court filing continued.

US District Judge Thomas Schroeder is presiding over the Democratic groups’ lawsuit, along with two others that challenge the same-day voter registration changes in SB 747.