Court hearing on controversial new NC elections law ends with more questions than answers
A federal judge on Thursday ordered the North Carolina Democratic Party and the Republican-led state legislature to try working together to clear up a lawsuit over part of a controversial new elections law, as the 2024 elections fast approach.
Also involved in the lawsuit — and now the potential settlement discussions requested by the judge — are an assortment of voting rights groups, as well as the state government officials in charge of elections administration.
At issue is a new law, Senate Bill 747. It made a number of changes that will go into effect for the 2024 elections including stricter rules for mail-in voting, less strict rules for partisan poll observers and a change to how the state handles people who use same-day voter registration. The law has led to the state being sued at least three times by voting rights activists and political groups trying to stop different parts of it from going into effect.
The law's Republican backers say it's intended to fight voter fraud or help improve voters' confidence in election security. The challengers say it's actually intended to harm Democrats' chances in future elections, in part by cracking down on methods of voting and voter registration more commonly used by college students, Black people, Hispanic people and others whose views tend to lean more liberal.
One wide-ranging lawsuit challenging numerous parts of the law is moving forward separately. But two lawsuits that focus specifically on the changes to same-day voter registration were heard Thursday. Federal District Court Judge Thomas Schroeder said he wasn't sure if he had the power to block that part of the law from going into effect, as the North Carolina Democratic Party and voter outreach groups including Voto Latino and Down Home NC have asked for.
They claim the law unconstitutionally deprives new voters of due process rights. When someone signs up to vote during early voting, they must prove their name and residence by showing a photo ID, bank statement, utility bill or other such document. They're then asked to name an address the state can send a postcard; if the postcard is sucessfully delivered their vote will count. But if it's returned as undeliverable by the U.S. Postal Service, the person will be ruled an ineligible voter and have their ballot thrown out.
The opponents say their main concern is that there's no process for people who get rejected to prove they actually do live where they said they live. The state doesn't have to notify them, let alone give them an opportunity to state their case.
It's an affront to the most fundamental right of American democracy, said NC Democratic Party attorney Seth Waxman, for supporters of the new law to argue "that you can have your ballot not counted, and not be told or given an opportunity to address it."
The State Board of Elections believes its hands are tied, pointing to a court ruling in a different lawsuit that elections officials believe prevents them from offering any type of due process to voters who think they've been unfairly prevented from having their votes counted. But GOP lawmakers disagree, saying that while they're not convinced such a system is needed, they don't think that other court ruling applies in this situation.
Given that fundamental disagreement between the branch of government in charge of writing the laws and the branch in charge of executing the laws, the Democratic Party and other challengers say the judicial branch now needs to come in and resolve the issue, by forcing a due process system to be established. But District Court Judge Thomas Schroeder wasn't quite convinced, telling the various sides Thursday that it would be best if they worked it out themselves.
"It's a fixable problem," Schroeder said. "The question is who fixes it."
It remains unclear whether the political enemies on opposite sides of the case will have an appetite for compromise, although a spokesperson for the State Board of Elections said they're willing to work with all the various other parties in the case to reach a solution. After Thursday's hearing multiple lawyers and spokespeople for the more political sides in the lawsuit either declined to comment or didn't respond to requests for comment.
Schroeder gave them a week to talk and work out a resolution, whether that means passing a new law or reaching a formal agreement or any other potential solution. If not, he said, then it'll be up to him to decide whether or not to strike down the law as the challengers want.
The fight over same-day registration
Cracking down on same-day registration has been a goal of North Carolina Republicans for years; the new lawsuits claim that's because it's used disproportionately by college students, low-income people and minorities.
Republican politicians who backed SB 747 when it passed this year said same-day registration poses the potential for fraud, as allowing people to vote on the same day they register is a process that could be abused.
But a similar vetting process for same-day registration has been in place for decades, and in court the legislature has been unable to point to any proof of the mail verification system ever stopping a case of real or attempted voter fraud. Voter fraud of any type is incredibly rare, multiple recent election audits have shown in North Carolina and elsewhere.
The Republicans' own expert witness also acknowledged n a deposition that the new law is incapable of catching fraud, lawyers for the challengers said Thursday. That's because people don't actually have to have mail sent to the residence they're claiming to live at, and can instead list a more generic mailing address like their office, a P.O. box or a college mailroom.
Phil Strach, the legislature's attorney, said the mail verification system is still important to have as a backup that helps verify that would-be voters aren't providing forged documents when they sign up to vote. But the challengers say that beyond being incapable of serving that purpose, the system's lack of due process has the potential to also void thousands of legitimate ballots in 2024 and beyond.
Opponents of a different part of the new law, which eliminates the state'sthree-daygrace period for mail-in ballots to be delivered after Election Day, have said that will similarly lead to hundreds or even thousands of legitimate ballots being thrown in the trash in the 2024 elections and beyond, unless stopped in court first. That provision wasn't a focus of the two lawsuits heard Thursday.
On the mail verification system, on Thursday the challengers pointed to a case in Watauga County — home to Appalachian State University and one of the 25 North Carolina counties that voted for Democratic President Joe Biden in 2020 — where more than two dozen voters in a recent election had their mail from the elections board returned as undeliverable. But in every single Watauga County case, Voto Latino attorney Aria Branch said, it turned out that the voters were legitimate and that their mail had been returned because of mistakes made by poll workers or postal service employees.
To not allow voters in 2024 to know that their ballots are being thrown out due to similar mistakes, she said, would be an injustice.
"That will happen over and over again," she said. "And that will cause individuals, who are eligible, to be disenfranchised."
Strach said many states don't offer same-day registration at all. So if the legislature wants to create extra hurdles for it, he said, they can — and a judge shouldn't jump in and stop it.
"People can quibble whether mail verification is a good final step, but that's what the legislature has chosen," he said.
