Federal judge allows challenge of 225,000 NC voter registrations to move forward

A federal judge will allow state and national Republican groups to move forward with their lawsuit challenging 225,000 voter registrations in North Carolina. An order issued Friday denied requests from the State Board of Elections and Democratic National Committee to have the case dismissed.

The lawsuit sits with US Chief District Judge Richard Myers after the 4th US Circuit Court of Appeals reversed Myers’ decision to send part of the case back to state court. Appellate judges agreed with the elections board and the DNC that the case should remain in the federal court system.

Myers had issued an Oct. 17 order striking down part of the suit from the Republican National Committee and state Republican Party. But Myers initially refused to rule on the GOP groups’ argument that the challenged voter registration process violated the North Carolina constitution.

The latest order from Myers’ court allows that portion of the case to proceed.

“Defendants contend that Plaintiffs’ ‘threadbare allegations’ of vote dilution ‘cannot survive a motion to dismiss.’ The court disagrees,” Myers wrote. “Plaintiffs have alleged (1) that Defendants improperly permitted 225,000 individuals to register to vote in North Carolina, (2) that some subset of those 225,000 individuals are ineligible to vote, and (3) that ineligible voters will vote in future elections and dilute the votes of eligible voters.”

“These allegations based on Plaintiffs’ ‘information and belief’ are sufficient at this stage because ‘the necessary information’ to substantiate them ‘lies within defendants’ control,’” the judge added.

“Defendants assert that Plaintiffs’ equal protection claim ‘is foreclosed by a wealth of case law,’ in that ‘[f]ederal courts have routinely rejected [federal] equal-protection claims … grounded in vote dilution.’ This assertion is unpersuasive because Plaintiffs’ constitutional claim arises under North Carolina’ s Constitution,” Myers wrote.

Myers rejected Democrats’ argument that the North Carolina Supreme Court’s 2023 redistricting ruling in Harper v. Hall should invalidate Republicans’ case. That precedent does not apply “in the context of a vote dilution claim premised on a theory of dilution by ineligible voters, not eligible voters of another political party,” the judge wrote.

The judge rejected additional arguments based on the National Voter Registration Act and the Purcell principle, which calls for courts not to change election rules during an election.

“Plaintiffs in this action are not going to obtain any relief in connection with the most recent election,” Myers wrote. “But as the court noted at the October 17 hearing, there will be future elections. The alleged improprieties Plaintiffs have raised in their Complaint will persist. To the extent Plaintiffs delayed in bringing this suit, that delay will not operate to the prejudice of Defendants or the DNC because the outcome of this suit will have no bearing on the most recent election.”

A unanimous three-judge panel of the 4th US Circuit Court of Appeals ruled on Oct. 29 that Myers should not have sent part of the case back to state court.

The State Board of Elections and DNC had argued in favor of keeping the case in federal court. GOP groups had supported Myers’ decision to remand the case to the state court system.

Sending the case back to state court “was improper,” wrote 4th Circuit Judge Nicole Berner. “At issue is a substantial question of federal law, the resolution of which is appropriately decided by the federal courts because it respects the federal-state balance envisioned by Congress and HAVA itself.”

Chief Judge Albert Diaz and Judge Roger Gregory joined Berner’s opinion. In a concurring opinion, Diaz addressed whether the case ever should have reached a federal court.

To argue a case in federal court, a plaintiff must meet standards for standing, a “threshold showing that they have made by the barest of threads,” Diaz wrote.

The decision arrived less than a day after the three-judge appellate panel heard more than an hour of oral arguments in the case.

GOP groups wanted the courts to force the state elections board to remove voters from the rolls or force them to cast provisional ballots if they registered to vote using a now-discarded registration form.

That form did not mandate that prospective voters provide a driver’s license number or the last four digits of a Social Security number. The Republican groups argued that the failure to collect that information during voter registration violated federal Help America Vote Act requirements.

The State Board of Elections had the case removed from state court to federal court.  Myers dismissed part of the case on Oct. 17. But he also ruled that a claim that the state board’s actions violated the North Carolina Constitution should return to state court.

The elections board and the DNC appealed that piece of Myers’ ruling. Both parties asked the panel to keep the case within the federal court system. Democratic presidents appointed all three appellate judges.

“They cannot prevail on their state constitutional claim without first proving that there was, in fact, a violation of federal law here,” said North Carolina Deputy Attorney General Sarah Boyce, arguing on behalf of the elections board. “Their entire theory of vote dilution falls apart if, in fact, they are unable to prove that there was a HAVA violation here.”

“Congress has given clear direction that in instances when civil rights are under threat, federal court is sometimes the best protector of those civil rights,” Boyce added.

The DNC urged the Appeals Court to order Myers to throw out the state constitutional claims along with the rest of the lawsuit.

“The plaintiffs say that this court should not — but not that it cannot — address them. But the imminence of the election, now eight days away, and the corrosive claim that the state board is somehow permitting thousands and thousands of ineligible votes to be cast counsels just the opposite,” argued DNC lawyer Seth Waxman.

GOP groups are pursuing a case “in which there is not a single allegation that there is, in fact, anybody who is ineligible to vote among the 225,000, much less has voted,” Waxman added.

Republican lawyer Phil Strach acknowledged that the suit targets only a subset of those registered under the challenged state forms. That subset consists of those who lacked a driver’s license or Social Security number.  “It could be 2,000. It could be 25,000. We don’t know,” he said.

Strach challenged opposing attorneys’ characterization of the lawsuit.

“We are not and have not asked any court to, quote, purge 225,000 voters from the rolls,” he said. “We’ve not asked for that. We have not asked to disenfranchise anyone who is properly registered, eligible to vote.”

The state elections board should flag affected voters and ask for their driver’s license number or last four SSN digits when they head to the polls, Strach said. If the voters cannot provide that information, they can cast provisional ballots and allow election officials to verify their eligibility.

“That’s all we’re asking to do,” Strach said. “To me, it’s not a heavy lift.”

Diaz asked Strach about the impact of the recent state law requiring voter identification at the polls.

“If they’re required to provide the ID at the polls, what’s the point?” he asked.

Berner asked Strach why removing voters from the voting rolls within 90 days of an election wouldn’t violate federal law. Those voters never should have been considered registered in the first place, Strach responded.

Gregory questioned subjecting the 225,000 voters to the possibility of a provisional ballot counted days after the election. “It sort of makes you a second-class citizen,” he said.

Myers issued his initial decision after an Oct. 17 hearing in Wilmington.

He first rejected a request from state and national Republican groups to send the entire case back to state court. The judge then determined that he could address one of two claims GOP groups made in their initial lawsuit in state court.

The RNC and NCGOP filed their first claim under a state law — NC Gen. Stat. § 163-82.11 (c) — alleging that the State Board of Elections failed to maintain its voter registration list in compliance with HAVA.

Myers determined that the Republican groups had no right to bring the suit.

“In reaching its conclusion that Count One fails on the merits, the court is not insensitive to Plaintiffs’ concerns about election integrity and voter disenfranchisement,” Myers wrote in his 44-page order. “Nor is its decision in any way a stamp of approval on Defendants’ conduct. But ‘[r]aising up causes of action where a statute has not created them’ is ‘for common-law courts,’ not this ‘federal tribunal[].’”

“In the absence of any indication that North Carolina’s General Assembly intended for private litigants to enforce the provisions of Section 163-82.11, this court may not appoint itself as ‘oversee[r]’ of ‘executive action,’ which ‘would significantly alter the allocation of power … away from a democratic form of government.’”

Myers refused to rule on the Republican groups’ second complaint, “a direct claim under the North Carolina Constitution, alleging that ‘Defendants’ actions directly interfere with North Carolinian’ s fundamental right to vote.’”

That claim “raises a ‘novel’ issue of North Carolina law (whether the State’s noncompliance with state and federal election law can give rise to state constitutional injury).” Myers cited “compelling [federalism] reasons for declining” to address that issue. “[S]tate courts should decide the scope and extent of state constitutional rights,” he wrote.

“Accordingly, the court declines to exercise supplemental jurisdiction over Count Two and remands that claim to state court, which will ‘best promote the values of economy, convenience, fairness, and comity,’” Myers concluded.  

The voter registration lawsuit filed in August argued that the elections board failed to require identification from prospective voters to prove citizenship. GOP groups argued that by violating HAVA and not checking the identification of approximately 225,000 voters, the agency opened the door for noncitizens to vote. 

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