Two federal lawsuits challenge new NC elections law on the same day it’s approved

Carolina Journal photo by Mitch Kokai

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  • Two federal lawsuits challenged North Carolina's new elections law on the same day legislators enacted the law over Gov. Roy Cooper's veto.
  • The Democratic National Committee and state Democratic Party filed one suit. Plaintiffs working with Democratic elections lawyer Marc Elias' law firm filed the second suit.
  • Both suits target provisions that would affect voters using same-day voter registration. The DNC suit also targets a measure setting Election Day as the deadline for mail-in absentee ballots. The DNC also targets changes to rules for party-sponsored election observers.

On the same day that state lawmakers voted to override Gov. Roy Cooper’s veto of a new elections law, critics filed two federal lawsuits to block portions of the law from taking effect.

The Democratic National Committee and state Democratic Party filed one challenge Tuesday afternoon. Plaintiffs working with Democratic elections lawyer Marc Elias’ law firm filed a separate complaint about one piece of the law.

The complaints target Senate Bill 747. It sets Election Day as the deadline for mail-in absentee ballots, ending a three-day grace period under the state’s previous law. It bans private funding of elections administration. It clarifies rules for party-sponsored poll site election observers. It bans drop boxes for ballots. It makes a number of other changes in a 43-page document.

A 72-44 vote in the state House at 2:25 p.m. Tuesday completed the override of Cooper’s veto. That same afternoon, the DNC and state Democratic Party announced their legal challenge. Rather than suing lawmakers who approved SB 747, the complaint targets the director and members of the State Board of Elections.

“North Carolina Senate Bill 747 (“S.B. 747”), which became law today, is a direct assault on the ‘most fundamental’ right to vote,” according to the Democrats’ complaint. “In fact, despite its innocuous-sounding name, ‘An Act to Make Various Changes Regarding Elections Law,’ S.B. 747 … is designed to undermine the right to vote in North Carolina.”

“The changes it adopts would make it much harder for some North Carolinians to register to vote, would allow ballots by same-day registrants to be rejected without any notice to the voter or any right to challenge the rejection, would permit an influx of intimidating and largely unconstrained poll observers into voting places, and would require the discarding of absentee ballots that are returned even a minute after the polls close on election day (no matter how far in advance of the election voters place their ballots in the mail),” the complaint added. “The U.S. Constitution, the North Carolina Constitution, and multiple federal statutes prohibit these myriad efforts at vote suppression, which will disenfranchise many North Carolinians.”

The suit seeks an injunction blocking elections officials from: “(1) requiring same-day registrants to produce documentation that other registrants do not need to produce, (2) denying a same-day registrant’s application to register without providing that individual with sufficient notice and an opportunity to be heard, (3) rejecting a same-day registrant’s application to register based on the return of a single notice by the U.S. Postal Service as undeliverable, (4) refusing to include in the official vote totals any absentee ballots that are postmarked by election day and received after 7:30 p.m. on election day but before 5:00 p.m. three days after election day, (5) applying different voting-registration standards, practices, or procedures to different groups of individuals in the same county, (6) failing to provide a free access system by which same-day registrants can track their retrievable ballots, and/or (7) permitting poll observers to intimidate, threaten, or coerce or to attempt to intimidate, threaten, or coerce voters.”

As the Democratic Party groups headed to the federal courthouse, plaintiffs Voto Latino, Watauga County Voting Rights Task Force, Down Home North Carolina, Sophie Jae Mead, and Christina Barrow also filed suit in US District Court. The individual plaintiffs are students at Appalachian State and Duke universities. Plaintiffs are working with attorneys from the Elias Law Group.

As with the DNC suit, the complaint targets the director and members of the State Board of Elections. The second suit also names members of the Durham and Watauga County elections boards as defendants.

The second suit targets only SB 747’s “undeliverable mail provision.” Plaintiffs argue that the 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 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 (“USPS”) 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. They seek an injunction blocking elections officials from enforcing the provision.