The Alton Lennon Federal Building and U.S. Courthouse, Wilmington, NC (Photo: https://www.gsa.gov)
This report was first published by Carolina Public Press.
WILMINGTON — On his way to the federal courthouse Thursday morning, Democratic National Committee attorney Seth Waxman drove past a long line of New Hanover County residents taking advantage of the first day of early voting. Waxman would later argue for the dismissal of a lawsuit attempting to make 225,000 registered North Carolina voters — some who may have been waiting in that line to vote — take extra steps to verify that they are eligible to vote.
Thursday evening, U.S. District Court Judge Richard E. Myers II — an appointee of former President Donald Trump — dismissed one of the lawsuit’s claims, while declining to rule on the other and instead returning it to a lower state court.
The lawsuit is one of five cases filed this year in which the North Carolina Republican Party and the Republican National Committee are suing the North Carolina State Board of Elections.
None of the cases have reached a permanent resolution.
In Thursday’s ruling, Myers found that the NCGOP and RNC did not have standing to sue in their first claim, involving the State Board’s alleged violation of the federal Help America Vote Act.
However, Judge Myers agreed with the Republican parties that the second claim, involving the State Board’s alleged violation of the North Carolina Constitution’s right to vote, should be decided by a state court, not a federal court.
Lawsuit over registration form
In October 2023, North Carolina citizen Carol Snow uncovered an issue with North Carolina’s voter registration form, created by the State Board of Elections.
At the time, red text at the top of the voter registration form indicated that information fields highlighted in red were required.
The form asked, “Are you a citizen of the United States of America?” and “Will you be at least 18 years of age on or before election day?” in red text, while leaving other information fields, like race, ethnicity and gender, in black and white.
State and federal law requires state boards of elections to create voter registration forms that collect either a registrant’s driver’s license number or last four digits of their social security number, if they have either, or check a box if they don’t.
However, that information field was also left in black and white, potentially causing confusion for registrants who may have thought it was optional because it wasn’t highlighted in red.
Once Snow brought the issue to the State Board, they created a new, clearer voter registration form. But in December 2023, they declined to honor Snow’s other request: contact and verify the identity of the estimated 225,000 voters registered using the unclear form.
Snow continued to push for relief, but the State Board said that impacted voters’ identities would be verified through alternative means, as they went to vote.
People who register to vote, but check the box to say they do not have a North Carolina driver’s license or a Social Security number, are assigned a unique voter ID number to recognize them in the voter system.
They are eligible to vote, as long as they present one of an accepted list of documents with their current name and address, under the federal Help America Vote Act. Those documents include a current utility bill, bank statement, government check, paycheck or other government document.
Additionally, with North Carolina’s newly enforced voter ID law, every voter has to show a valid photo ID to vote, or fill out a photo ID exception form under special circumstances like a natural disaster.
While the State Board decided that was enough, the North Carolina Republican Party and the RNC disagreed.
This August, they sued in state court.
They asked the court to order the State Board to either purge the voter rolls of the 225,000 impacted voter registrants, or if the law did not allow that, to require those voters to cast provisional ballots during the 2024 general election.
It was possible, they argued, that some of the 225,000 who filled out the old voter registration form may not have met the voting eligibility requirements, but were falsely registered anyway.
Regardless of whether that was the case, they argued that the State Board’s refusal to contact and verify the registrants’ identities and voter eligibility could make people doubt the integrity of the election.
“If (the State Board does) not remove ineligible voters from the state’s voter rolls, then the legitimate votes of qualified voters will be diluted and disenfranchised in upcoming elections,” RNC and NCGOP’s original complaint argued.
Judge Myers used bucket imagery to explain the case.
About 225,000 people registered to vote using a faulty voter registration form. They belong in three buckets. One bucket includes some percentage of the 225,000 people who supplied their driver’s license or social security number even though it wasn’t highlighted.
There are two buckets for those who didn’t fill out the section. One for those who meet all the voter eligibility requirements, and another with “some percentage unknown” who are not eligible to vote, but were registered anyways. The third bucket is what the Republican plaintiffs are concerned about, Myers said.
State Board general counsel Sarah Boyce thinks the third bucket is empty.
She said they “fundamentally disagree” that not providing a driver’s license or social security number necessarily makes someone ineligible, and that what happened with the form left room for any ineligible person to vote.
“They will never be permitted to vote without showing HAVA documentation,” Boyce said.
Waxman also objected to the idea of provisional voting as a requirement for voters registered under the old form.
Voters are given provisional ballots when there are questions about their eligibility to vote in an election or if they cannot present a valid photo ID. After voters cast provisional ballots, elections officials research their eligibility to determine whether their ballot should be counted or not.
In some cases, provisional voters are asked to come back to the county board of elections with their valid photo identification or HAVA documentation in the days between the election and the post-election canvass where official results are tallied.
“Provisional voting is absolutely prohibited to be required … to someone who is eligible to vote and provides the requisite identification,” Waxman said.
One case, two claims
Judge Myers divided the case into two claims.
First, the North Carolina Republican Party and the Republican National Committee alleged that the State Board violated NC GS 163-82.11, which deals with voter roll maintenance.
The statute says that “(t)he State Board of Elections shall update the statewide computerized voter registration list and database to meet the requirements of section 303(a) of the Help America Vote Act of 2002…”
That section of the Help America Vote Act includes the requirement to collect driver’s licenses or Social Security digits from those who have them.
However, the State Board argued that they cannot remove voters registered under the old form without breaking another federal law, the National Voter Registration Act of 1993.
That law bans elections officials from removing ineligible voters from the voter rolls 90 days before an election, so as to avoid accidentally disenfranchising eligible voters.
In that timeframe, it only allows officials to remove voters from the rolls if the voter asks to be removed, is convicted of a felony, dies or changes their address.
Judge Myers said a failure to comply with HAVA during the voter registration process is not included as legal grounds for removal. During the hearing, he also said that while removing 225,000 voters from the rolls is “administratively impractical,” that doesn’t mean there’s no right to remove them before the next federal election in 2026.
Myers did not rule on the merits of the plaintiffs’ claims, though.
Instead, he said because the North Carolina legislature did not include a private right to action — the right for an individual or organization to sue over an alleged violation of a statute — in the state law at hand, the NCGOP and RNC did not have standing to sue.
In the second claim, the NCGOP and RNC allege that the State Board’s inaction violated the North Carolina Constitution’s fundamental right to vote.
Judge Myers said state courts should interpret state constitutions, not the federal court, so he returned that part of the case to Wake County Superior Court.
The State Board and the Democratic National Committee have until Oct. 22 to appeal that order to remand the case.
This article first appeared on Carolina Public Press and is republished here under a Creative Commons license.