Trial in suit challenging NC election law set for ‘late summer’ 2025

Carolina Journal photo by Mitch Kokai

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  • A trial date will be set for "late summer" 2025 in a left-of-center activist group's federal lawsuit challenging a 2023 North Carolina election law.
  • A court order Tuesday set deadlines for the suit led by Democracy NC. Two other lawsuits challenging the same election law provision are now on hold.
  • The targeted "undeliverable mail" provision deals with the rules regarding same-day voter registration in North Carolina.

A left-of-center activist group’s federal lawsuit against a North Carolina election law will go to trial in “late summer” of 2025. A court order Tuesday set deadlines for the suit, which challenges a state law provision dealing with same-day voter registration.

A federal judge has placed a hold on two other lawsuits challenging the same election law provision.

Unlike the other two cases, plaintiffs led by activist group Democracy NC would not accept state legislative leaders’ request to pause their case.

Tuesday’s order indicated that plaintiffs can move forward this year with depositions of state Rep. Grey Mills, R-Iredell, and Sen. Warren Daniel, R-Burke, “as previously agreed by the parties.” Plaintiffs can also pursue third-party discovery involving “Cleta Mitchell and North Carolina Election Integrity Team.”

Most discovery in the case will be pushed back to January 2025, with April 2025 deadlines for any motions for summary judgment. “The trial date will be during the late summer of 2025, to be specifically set by the District Judge,” according to the order signed by US Magistrate Judge Joi Elizabeth Peake.

US District Judge Thomas Schroeder is overseeing the case. Schroeder issued stays in the other two suits dealing with the same election provision.

All three lawsuits challenge a provision of 2023 legislation, Senate Bill 747, called the “undeliverable mail provision.” It changes the rules regarding same-day registration. Schroeder issued an injunction in January blocking the challenged provision from taking effect.

The State Board of Elections then adopted temporary rules designed to address Schroeder’s concerns. Unless lawmakers or the state elections board take additional action, those rules will remain in effect throughout the rest of the 2024 election cycle.

Republican legislative leaders filed a motion in April asking Schroeder to stay Democracy NC’s case despite the plaintiffs’ objections.

“For the reasons stated herein, the interests of judicial economy, the hardship and inequity to Legislative Defendants and the North Carolina State Board of Elections (‘NCSBE’) would suffer absent a stay, and the complete lack of potential prejudice to Plaintiffs in the event of a stay, a stay of this matter is warranted until at least March 9, 2025,” wrote lawyers representing Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland.

Plaintiffs in two other cases agreed to place their lawsuits on hold. One suit lists the Democratic National Committee and North Carolina Democratic Party as plaintiffs. The other lists Voto Latino and other left-of-center activist groups. Lawyers from Democratic operative Marc Elias’ law firm help represent Voto Latino plaintiffs.

In both cases, court filings suggest that the lawsuits will remain on hold throughout the rest of the 2024 election cycle, with possible exceptions. Plaintiffs might return to court this year if the General Assembly passes a new law addressing the same-day registration changes. Plaintiffs also could revive their complaint this year if the state elections board fails to enforce its temporary rules. Those rules are scheduled to remain in effect into March 2025.

Plaintiffs in the Democratic Party and Voto Latino cases cases were willing to pause legal action after Schroeder issued his preliminary injunction in January. Schroeder blocked a provision of SB 747 dealing with removal of ballots from same-day registration voters. The law called for those ballots to be removed if the postal service returned an address verification card mailed to those voters as undeliverable.

Schroeder issued orders earlier in April rejecting motions to dismiss the Voto Latino and Democracy NC cases.

The judge had issued a Jan. 21 injunction blocking the challenged provision of SB 747 from taking effect. The State Board of Elections followed up on Jan. 29 with notice of a temporary interim rule designed to address Schroeder’s concerns. The rule change was designed to give voters notice that their ballots would be challenged, along with an opportunity to object to the removal.

“Legislative Intervenors have not demonstrated … that the interim rule moots the complaint,” Schroeder wrote in Voto Latino v. Hirsch. “While the interim rule from the NCSBE is presently in place, it remains temporary by operation of the statutory authority for its adoption.”

The state elections board touted  “a process that provides a notice and opportunity to cure for same-day registrants whose first notice is returned as undeliverable” in a January court filing.

The board’s lawyers notified Schroeder about Numbered Memo 2023-05. The memo outlined 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.”

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. SB 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 when issuing his injunction.

“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.”

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

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. Schroeder’s injunction blocked that provision.

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 said 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.