Staff Report
Carolina Journal
A federal judge has decided to keep a Republican lawsuit targeting rules for North Carolina’s mail-in absentee ballot envelopes in his courtroom. An order Thursday denied Republicans’ request to send the case back to state court.
The State Board of Elections and a retirees group working with Democratic operative Marc Elias’ law firm had both opposed returning the case to the state court system.
“[T]he court finds that the organizational Plaintiffs have made a ‘threshold showing’ of standing,” US Chief District Judge Richard Myers wrote. Without standing, Myers would not have been able to address the case in federal court.
Myers ruled that the elections board “properly removed this action” from state court to federal court. The board believed that complying with Republican demands in the lawsuit would have violated the federal Civil Rights Act of 1964. Because of the role of federal law in the case, a federal judge has jurisdiction to address the GOP’s complaints, Myers ruled.
The parties submitted competing arguments Wednesday about whether the case should remain in Myers’ court.
“The requirements for standing under federal law are materially different from the requirements for standing under North Carolina law,” wrote lawyers for the Republican groups, who are the case’s plaintiffs. “And Plaintiffs, of course, originally filed this action in North Carolina state court. They never intended for this lawsuit to be in federal court.”
“Plaintiffs alleged only state-law claims,” GOP lawyers added. “They never intended for their Complaint to be reviewed under a federal pleading standard. Nor did they ever intend to argue that any federal court had jurisdiction over this action, because no such jurisdiction exists.”
“It was Defendants who improperly removed this case to this Court, even though the Court lacks subject matter jurisdiction over this litigation,” the Republican court filing continued.
Republican groups sued the State Board of Elections, the case’s defendants. The board’s lawyers defended their decision to move the case from state to federal court.
“Plaintiffs have sufficiently alleged a concrete and particularized injury to confer Article III standing,” the board’s lawyers wrote. “Accordingly, this case meets the jurisdictional threshold for federal subject matter jurisdiction, and remand [to state court] is not appropriate.”
The state elections board’s lawyers also pointed Myers toward the 4th US Circuit Court of Appeals’ decision this week in a separate dispute pitting state and national Republican groups against North Carolina election officials. That lawsuit challenges 225,000 North Carolina voter registrations. In that case, appellate judges agreed that Republicans had standing for the case to be considered in federal court.
The North Carolina Alliance for Retired Americans, working with the Elias Law Group, intervened in the ballot envelope case to defend the state elections board’s actions.
“The Alliance submits that the Plaintiffs’ complaint does not adequately plead standing under Article III, but the proper result in this case is dismissal rather than remand,” the intervenors’ lawyers wrote. “Congress provided state officers with a federal forum in which to defend their adherence to federal civil rights laws, potentially over strong local opposition. This protection would be rendered meaningless if a plaintiff who lacked Article III standing could force state officers to remain in state court.”
On Monday, Myers had ordered parties in the case to explain why he should keep the lawsuit.
The Republican National Committee and North Carolina Republican Party filed the suit in state court. The state elections board moved the case to federal court on Oct. 11.
“The parties are ordered to show cause, on or before October 30, 2024, why the court should not remand this matter to state court for want of subject matter jurisdiction,” Myers wrote in the one-paragraph order. “Specifically, the parties should address whether the Complaint … alleges a concrete and particularized injury sufficient to confer Article III standing in federal court.”
The issue of Article III standing emerged Monday afternoon in a separate case the State Board of Elections moved from state to federal court. In that case, GOP groups challenge the registration of 225,000 North Carolina voters. During oral arguments at the 4th US Circuit Court of Appeals, Chief Judge Albert Diaz led questioning of Republican, Democratic, and state elections board lawyers about whether the federal courts should consider the case at all.
The elections board filed a notice of removal on Oct. 11 in the ballot envelope case.
“The complaint seeks a declaratory ruling that Defendants’ guidance on processing absentee ballots violates Chapter 163 of the North Carolina General Statutes. However, Defendants’ guidance is based on their obligation to comply with” federal law, the elections board’s lawyers wrote, specifically the “materiality provision” of the Voting Rights Act.
“The VRA’s overarching objective is to achieve racial equality in voting,” the elections board’s court filing explained. “Any action commenced in a state court may be removed to the district court of the United States where it is pending when the action is based on ‘any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.’”
“Because Plaintiffs seek relief for Defendants’ refusal to do an ‘act on the ground that [the act] would be inconsistent” with 52 U.S.C. § 10101(2)(B), removal is proper,” elections board lawyers argued.
The suit from the Republican National Committee and North Carolina Republican Party arose from the State Board of Elections revising its Numbered Memo 2021-03, which implements various laws governing absentee ballots.
According to an RNC news release, the revised memo stated that absentee ballots do not need to be returned in sealed container-return envelopes to be counted. This policy directly conflicts with the statutes specifying that they must be returned in sealed container-return envelopes, GOP groups argued.
The RNC said the policy violated North Carolina state law and weakened absentee ballot safeguards.
“This decision by the NCSBE is inconsistent with state law and diminishes protections for absentee ballots,” said RNC Chairman Michael Whatley. “We have filed suit to uphold election integrity and ballot safeguards. State law lays out clear requirements, and the NCSBE must follow them — we will continue to fight for election integrity in the Old North State.”
The state and national Republican groups filed at least five suits against the State Board of Elections between Aug. 22 and Oct. 2. The other cases remain in state court.
One challenges the elections board’s approach to ensuring that no registered voters are people excused from jury duty because they said they are not citizens.
The second suit challenged the elections board’s decision to permit the University of North Carolina at Chapel Hill’s digital identification to be used as voter ID this fall. The state Appeals Court issued a Sept. 27 order blocking elections officials from accepting the mobile UNC as voter ID.
A third suit challenges the elections board’s treatment of rules regarding overseas voters.
Comments