Top North Carolina legislative leaders are asking a federal judge to dismiss a left-of-center activist group’s 2023 lawsuit linked to same-day voter registration.
Lawmakers argued in a court filing Tuesday that the recent settlement of two related lawsuits renders Democracy North Carolina’s ongoing legal challenge moot.
Democracy NC filed one of three lawsuits targeting a section of 2023’s Senate Bill 747 called the “undeliverable mail provision.” The provision aimed to change how elections officials dealt with ballots from voters who registered to vote on the same day they cast early-voting ballots.
Before SB 747, election officials were required to remove a same-day voter’s ballot if the postal service returned two address verification cards as undeliverable. SB 747 dropped the requirement from two undeliverable mailings to one.
US District Judge Thomas Schroeder issued an injunction blocking state election officials from using the “undeliverable mail provision” during the 2024 election.
Schroeder signed an agreement on April 28 ending the other two legal challenges against the provision. The state and national Democratic Party organizations and left-of-center activist groups working with Democratic operative Marc Elias’ law firm agreed to drop their lawsuits.
Democracy NC did not take part in the settlement.
Republican legislative leaders argued in this week’s court filing that the agreement resolves Democracy NC’s complaints involving same-day registration voters.
“Amongst other things the Consent Judgment permanently enjoins the State Board from enforcing S.B. 747’s Undeliverable Mail Provision in future elections until an affected voter is provided specified notice and an opportunity to remedy their address verification failure,” according to the court filing. “The Consent Judgment also prohibits the removal of the ballots of SDR applicants who have their address verifications returned as undeliverable after the close of business on the second business day before the county canvass.”
“Plaintiffs’ claims are moot due to the Consent Judgment, which permanently enjoins the State Board from enforcing S.B. 747’s Undeliverable Mail Provision as written,” legislative lawyers explained. “In its place, the State Board must employ a notice and cure process … for all affected SDR applicants.”
Provisions in the April agreement “strike at the heart of Plaintiffs’ claims for relief,” lawmakers’ lawyers argued.
“In both form and function, the Consent Judgment provides Plaintiffs with the very process they allege the Undeliverable Mail Provision lacks,” the court filing continued. “Specifically, affected SDR registrants are given both notice and an opportunity to cure an address verification failure.”
“They also may not have their ballots removed if their mail verification is returned as undeliverable after the close of the second day before county canvass. Ultimately, the Consent Judgment offers Plaintiffs their core requested relief: an injunction prohibiting the use of S.B. 747’s Undeliverable Mail Provision in future elections,” legislative lawyers argued.
Carolina Journal first reported on April 22 about a deal designed to end the challenges from the Democratic National Committee, North Carolina Democratic Party, and clients working with Elias’ law firm.
Schroeder signed the agreement six days later.
“Defendants believe that continued litigation over the Undeliverable Mail Provision will result in the unnecessary expenditure of State resources, and is contrary to the best interests of the State of North Carolina,” according to the agreement.
Elections officials would be blocked from using the undeliverable mail provision to remove a same-day voter’s ballot “without first providing such voter notice and an opportunity to remedy the address verification failure,” according to the court filing. “Such notice shall be provided to the voter via U.S. mail and, if the voter provided additional contact information, by telephone and email, within one business day of receiving the undeliverable mail notice.”
A voter targeted by the undeliverable mail provision “must be permitted to remedy the address verification failure with documentation submitted in person, by mail, by email, or by fax,” the court filing continued. “The documentation must be received by 5 p.m. on the day before county canvass; provided, however, that a voter who is unable to provide the documentation by this deadline may also provide documentation in person at the county canvass, or may address the county board at the county canvass.”
Election officials also would be blocked from removing a same-day voter’s ballot if it’s “returned by the Postal Service as undeliverable after the close of business on the second business day before the county canvass.”
The Democracy NC suit accused lawmakers of targeting young voters in violation of the 26th Amendment. The complaint also argued that the change in state law violated voters’ due process rights and created an undue burden on the right to vote.
The law’s actual goal was “enhancing public confidence in elections,” according to an April 11 court filing from legislative leaders. Lawmakers and the State Board of Elections both filed motions for summary judgment in the case.
If Schroeder dismisses the case or grants summary judgment, he would not proceed with a trial scheduled for “late summer.”
“The Undeliverable Mail Provision stemmed from concerns with difficulties in verifying addresses close in time to the election,” legislators’ court filing continued. “Under the pre-747 scheme, there was little time for completion of two mailers before canvass — especially for voters using [same-day registration] towards the end of early voting.”
“Indeed, the normal lag time with two mailers frequently meant the second mailer was returned as undeliverable after canvass, resulting in counted votes from unregistered persons,” legislative lawyers wrote.
“Plaintiffs attempt to minimize these real concerns and paint a picture of legislation designed to target 18–25-year-olds,” the court filing added. “The undisputed facts show otherwise. It is undisputed that the NCSBE, after careful thought, suggested moving to a one verification mailing system, which the General Assembly adopted.”
“Plaintiffs also ignore several substantive recommendations made by NCSBE which were adopted in full that enhanced the Undeliverable Mail Provision’s administrative practicability — including a specific recommendation that a [Help America Vote Act] document serve as proof of residence, which was aimed at helping college students.”
“Central to Plaintiffs’ case are allegations that the General Assembly enacted S.B. 747 in order to obstruct or limit young voters from utilizing SDR. But the factual record shows that age was never a consideration when drafting S.B. 747,” lawmakers’ lawyers argued.
Schroeder issued an injunction in January 2024 blocking the challenged provision from taking effect. The State Board of Elections then adopted temporary rules designed to address Schroeder’s concerns.
“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.
“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 the Democratic Party plaintiffs offered to block other sections of SB 747.
The post Lawmakers seek dismissal of Democracy NC’s same-day voter registration suit first appeared on Carolina Journal.