Unaffiliated voters defend lawsuit against NC state elections board

Carolina Journal photo by Mitch Kokai
  • Unaffiliated voters are defending their federal lawsuit challenging the N.C. State Board of Elections. They object that state law guarantees only Democrats and Republicans can serve on the board.
  • Republican legislative leaders filed a motion on March 10 asking a federal judge to dismiss the lawsuit.

Unaffiliated voters challenging the structure of North Carolina’s state elections board are defending their federal lawsuit. They filed paperwork Friday rejecting state legislative leaders’ request to have the suit dismissed.

“Common Cause and five of the 2.6 million unaffiliated voters in North Carolina bring this action. They ask the Court to declare unconstitutional the state law requiring all members of the State Board of Elections to be registered as Democrats or Republicans and barring unaffiliated voters from serving — even though unaffiliated voters outnumber both parties,” wrote attorneys Edwin Speas and Michael Crowell. “The statutes violate plaintiffs’ First Amendment rights to free speech and association and their Fourteenth Amendment right to equal protection.”

Republican legislative leaders filed a motion on March 10 asking for the case to be dismissed. They argue that the plaintiffs lack standing to bring the lawsuit to federal court. Lawmakers also argue that state courts have ruled that the N.C. Constitution requires the governor to have control over the state elections board.

State law requires the governor to choose the five-member board. He makes his appointments from lists of names provided by leaders of the two major political parties. No more than three board members can be members of the same party. In practice, this means the governor’s party holds a 3-2 majority on the board.  

“The electorate differs dramatically today from when the State Board was first established,” Speas and Crowell wrote. “Currently more voters are registered unaffiliated than for either party. Thirty-five percent are unaffiliated, and the percentage will grow as 42 percent of voters aged 25–40 are unaffiliated, as are 47 percent of those under 25.”

Lawmakers argue that none of the individual plaintiffs in the case has suffered a legal injury. None has applied to serve on the state elections board.

This argument “misperceives and distorts” the case, Speas and Crowell wrote. “Their injury flows from the statutory bar interposed to the governor even considering an unaffiliated voter for appointment to the State Board, not from the failure of the governor to consider their applications for that position. Indeed, … there is no way for any unaffiliated voter to apply for appointment to the State Board. That statute expressly requires the governor to appoint State Board members, and fill vacancies on the State Board, exclusively from lists of nominees submitted by the chairs of the Democratic and Republican parties.”

“Cementing that bar to the appointment of unaffiliated voters, the statute goes on to forbid the chairs of the Democratic and Republican parties from submitting to the governor the name of any person ‘not affiliated’ with their parties,” Speas and Crowell added.

“There may be instances in which a plaintiff may need to open an unlocked door to gain standing to seek redress for an injury, but surely no plaintiff must knock down a locked door to gain standing.”

The unaffiliated voters’ lawyers stressed the importance of their case. “Recent elections starkly demonstrate how election administration is a foundational aspect of the right to vote,” Speas and Crowell wrote. “The abstract ‘right to vote’ does not exist unless one can register, cast a ballot, and have that ballot counted.”

“When a president pressures election officials to ‘find more votes’; when campaigns
declare that election machines were programmed to change votes; when citizens disrupt vote counting — when those things happen they affect the right to vote,” Speas and Crowell added. “In North Carolina, election board members decide who is qualified to register to vote, where they may vote, when they may vote, and whether their vote is counted. The State Board is where the right to vote is maintained.”

The latest filing assigns the label “severe” to North Carolina’s election board restrictions. “By excluding unaffiliated voters entirely from serving on the State Board, North Carolina law severely restricts the rights of a large and identifiable group,” Speas and Crowell wrote. “Those voters are united in their shared view that neither major party adequately represents them. It is that associational preference — to not be required to express allegiance to either the Democratic or Republican party — and that preference alone that completely excludes them from all major decisions of election administration.”

“Control over the entirety of election administration helps entrench the two major parties and is part of a long-term pattern of state law favoring the established parties over all other voters,” the unaffiliated voters’ lawyers added.

Speas and Crowell rejected the notion that the current board guarantees a balanced approach to election administration.

“A five-member board comprised of three members from a political party with which only 34 percent of voters affiliate, and two members from another party with which only 30 percent affiliate — but totally barring 35 percent of voters, based solely on their political preference — cannot in any sense be considered balanced,” they wrote. “A state interest in a balanced election board is not to be confused with Democrats’ and Republicans’ interest in maintaining their monopoly at the expense of 2.6 million unaffiliated voters.”