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Legislative leaders seek to pause third lawsuit challenging 2023 election change

Carolina Journal

Top Republican state lawmakers have asked a federal judge to pause a third lawsuit challenging 2023 changes to North Carolina’s state election law. The judge already has placed two related lawsuits on hold this month.

Unlike the other two cases, plaintiffs from the left-of-center activist group Democracy North Carolina have not agreed to stay the proceedings in their case.

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. US District Judge Thomas 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 Tuesday 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 have 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.

State legislators first circulated a proposal on April 25 for Democracy NC to sign onto a joint motion to stay its case, according to Tuesday’s court filing. “Less than 1.5 hours later, counsel for Plaintiffs rejected Legislative Defendants’ stay proposal without any explanation,” legislative lawyers wrote.

Plaintiffs instead proposed a court schedule that would lead to a trial “as soon as possible after March 17, 2025.” Legislators’ court filing noted that the proposed trial date fell “not even 10 days after the expiration” of the state elections board’s rules.

After legislative lawyers objected, Democracy NC’s lawyers returned with a proposal for a trial in October 2024, “which could occur during early voting.” The plaintiffs later proposed a third schedule that would extend trial deadlines “well into 2025, thus agreeing essentially to a stay in principle, but refusing to actually stay the case.”

“Plaintiffs have all but expressly admitted that they would not be prejudiced by a stay,” legislative lawyers wrote. “In fact, the statute Plaintiffs challenge is currently enjoined.”

“The current expedited litigation was premised on the fact that Plaintiffs sought relief before the 2024 General Elections. But that is no longer the case,” lawmakers’ lawyers explained. “In fact, Plaintiffs themselves sought a March 2025 trial date — a sixth [sic] month extension — so that data from the 2024 General Elections can be analyzed.”

“While it is true that Plaintiffs later sought a shorter continuance until October of 2024, that request is ill-conceived … and is unlikely to get them relief before early voting begins in the 2024 General Elections,” according to legislators’ court filing.

Schroeder issued an order Monday granting a stay in the Voto Latino case. Earlier in April, he granted a similar request in the suit filed by the state and national Democratic Party groups.

Plaintiffs in both 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.

Lawyers for Voto Latino and other left-of-center activist groups who oppose the provision joined lawyers for the State Board of Elections, Republican state legislative leaders, and the Republican National Committee to seek a stay.

Their joint motion cited temporary rules the state elections board adopted in response to Schroeder’s injunction. Without further action from the General Assembly, those rules will remain in place until March 9, 2025.

“Given the temporary nature of North Carolina’s current same-day registration procedures outlined in Numbered Memo 2023-05 and the prospect of legislative amendments to N.C. Gen. Stat. § 163-82.6B, it would conserve the Parties’ and the Court’s time and resources to stay proceedings by avoiding litigation over issues that could soon become moot,” according to the motion.

Lifting of the stay “could be warranted” if state lawmakers change same-day registration rules again or if the elections board “meaningfully alters or fails to enforce” its temporary rules.

The motion calls for shortened briefing schedules if plaintiffs seek to lift the stay. Otherwise, lawyers will report back to Schroeder no later than March 24, 2025.

Schroeder issued orders earlier this month 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.”

“For many of the reasons set forth in the court’s extensive analysis of Plaintiffs’ likelihood to succeed on the merits, and after careful review of the briefing on this motion, the court concludes that Legislative Intervenors have not shown they are entitled to dismissal,” Schroeder wrote.

In the other case, Democracy North Carolina v. Hirsch, Schroeder noted the possibility that state legislators could revise the targeted law.

“As a practical matter, … there is a viable probability that this claim will become moot if the General Assembly codifies permanent changes to comply with this court’s preliminary injunction order,” he wrote. “As of January 29, 2024, the NCSBE has amended the undeliverable mail provision — notably, without any complaint thus far from any plaintiff across the three related cases before this court.”

The temporary rule change was based on the state elections board’s “authority to ‘make reasonable interim rules and regulations’ that become ‘null and void 60 days after the convening of the next regular session of the General Assembly,’” Schroeder wrote.

“A more permanent change appears likely, as one would be consistent with the General Assembly’s representation to this court that the intention of S. 747’s undeliverable mail provision was for SDR voters to receive notice and an opportunity to be heard before their ballots are removed from the count,” Schroeder wrote.

Schroeder also indicated an interest in hearing more from the competing parties about the challenged provision. “Additionally, the court would benefit from a more developed factual record and briefing,” he wrote. “The parties dispute which legal framework the court should apply to determine if the undeliverable mail provision is intentionally discriminatory.”

“[T]here is good reason to avoid wading into this novel area of law at this preliminary stage,” Schroeder added.

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.

State House Speaker Tim Moore, R-Cleveland, and Rep. Grey Mills, R-Iredell, responded to Schroeder’s January order. Mills chairs the House Election Law and Campaign Finance Reform Committee.

“The vast majority of Senate Bill 747 is still in effect including increased poll observer access, bans on special interest money funding election offices, and making election day the last day to receive absentee ballots,” Moore and Mills said in a prepared statement. “The court order requires relatively minor changes to one small part of the bill, and we are working with our attorneys and the State Board of Elections to ensure that the entire bill is in effect before the primary and general elections this year. We will never stop fighting for election integrity on behalf of North Carolina’s voters.”

Left-of-center activist groups working with Elias’ law firm targeted the undeliverable mail provision alone in the Voto Latino suit. A second suit filed by the Democratic National Committee and state Democratic Party cited the undeliverable mail provision and other pieces of SB 747. The third suit from Democracy NC targeted the undeliverable mail provision as well.

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.

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