Federal judge upholds NC law changing same-day voter rules

A federal judge has rejected left-of-center groups’ challenge of a North Carolina law linked to same-day voter registration rules.

Democracy North Carolina, the North Carolina Black Alliance, and the League of Women Voters of North Carolina all challenged a section of 2023’s Senate Bill 747 called the “undeliverable mail provision.”  It changed the rules related to verifying same-day voters’ eligibility to cast ballots in North Carolina elections.

Two other lawsuits targeting the same provision ended in settlements. But the plaintiffs led by Democracy NC took their case to trial last October.

Now US District Judge Thomas Schroeder has ruled in favor of the State Board of Elections and top legislative leaders defending the law.

“Plaintiffs challenge SB 747’s modification of the prior two-card verification process (where a registration card mailed by the county board of elections to verify the registrant’s asserted address returned as undeliverable will not result in registration being denied until a second card is similarly returned),” Schroeder wrote in a 108-page order Thursday. “SB 747 eliminated the second verification card and directed that ballots cast be retrieved from the count upon return of the first verification card.”

“Plaintiffs claim that this change, considered alongside the consequent potential denial of ballots for affected voters, constitutes an undue burden on the fundamental right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution and is the product of intentional discrimination against young voters in violation of the Twenty- Sixth Amendment to the U.S. Constitution,” Schroeder explained. “Defendants contend that the change is a valid response to the fact that the close proximity of the early voting period to election day (and resulting canvass) leaves insufficient time for the second verification card to be returned; as a result, ballots are counted for individuals who fail the registration process after the canvass.”

“[T]he court concludes that Plaintiffs have failed to demonstrate that the law’s changes are unconstitutional,” the judge ruled.

The three lawsuits filed against the challenged provision of SB 747 prompted Schroeder to issue an injunction during the 2024 election cycle. The state elections board responded with a new “notice-and-cure” process that added more safeguards for voters whose initial address verification cards had been returned as undeliverable.

Schroeder’s order detailed the legislative history of SB 747, including lobbying by election integrity activists Cleta Mitchell and James Womack and the North Caroline Election Integrity Team.

“Having carefully considered all the evidence, the court finds that the General Assembly did not deviate from the ordinary legislative process in passing SB 747,” Schroeder wrote. “It followed normal order and held the proper number of hearings, including one that was extended.”

“The court also finds that while Mitchell and Womack personally held criticisms of how college voting was conducted in the state, their criticisms of [same-day registration] related to how it was conducted for all voters, irrespective of age,” the judge explained. “Mitchell and Womack credibly testified that they were opposed to SDR in all instances, regardless of who used SDR or for whom SDR users tended to vote, and that they were ultimately disappointed in SB 747’s changes to the SDR mail verification scheme.”

“The court is also persuaded Plaintiffs have failed to show that the General Assembly, in passing SB 747, adopted what may have been the subjective motivations of Mitchell and Womack,” Schroeder wrote. “Senator [Warren] Daniel credibly testified that in the aftermath of the 2022 midterms he received over 75 recommendations regarding election integrity from a variety of groups and individuals, of which NCEIT was only one. The General Assembly ultimately did not accept any of Mitchell’s or Womack’s suggested adjustments to SDR verification.”

Schroeder rejected the plaintiffs’ arguments that the law discriminated against 18- to 25-year-old voters.

“Plaintiffs have failed to establish that any generational polarization, assuming it exists, is sufficient to have an actual effect on young voters any different from that of any other voter,” he wrote.

“Plaintiffs fail to show that SB 747 disproportionately impacts young voters, for two independently dispositive reasons,” Schroeder added. “First, Plaintiffs have failed to show that SB 747, considered alongside the notice-and-cure process, leaves young voters worse off than did the pre-SB 747 SDR scheme with the second verification card. Second, only insubstantial numbers of voters are actually affected by the change from one system to another.”

Same-day registration presents challenges for election administration, Schroeder’s order explained.

“North Carolina is one of the minority states which allows SDR voting in the first place,” he wrote. “And, as also found, SDR creates unique challenges for a state’s ability to verify a voter’s qualifications, given SDR’s temporal proximity to election day. As such, rather than as a provision that singles out an identified class of voters, it is more accurate to characterize SB 747’s changes to the verification system for SDR as North Carolina’s condition on the use of a form of voting that the state was not required to provide in the first place, and which requires unique considerations because it permits registration so close to election day and canvass where the two-card verification process, which is the state’s statutory method of verification for traditional registration, faces practical limitations.”

“Of course, the voters who use SDR are entitled to make timely use of traditional registration on any of the 340 days of the year before an election,” Schroeder added.

The judge contrasted the same-day registration changes to other laws that have been labeled discriminatory.

“SB 747, at its core, alters the way in which North Carolina verifies the residences of all voters who choose to use SDR,” Schroeder wrote. “It is different in kind from white primary laws, poll taxes (with their associated racial connotations), restrictions on military personnel specifically, and property ownership requirements.”

“The court is thus unpersuaded that SB 747 singles out SDR voters as a disfavored class; indeed, it does not single out a class of voters at all,” the court order continued. “Because its requirements for SDR verification are relevant to a voter’s qualifications, SB 747 does not fit within the class of restrictions courts have found to be ‘invidiously’ discriminatory.”

Schroeder questioned the plaintiffs’ characterization of same-day voters’ choices.

“Plaintiffs’ contention that SDR voters have no alternatives at the time they attempt to vote via SDR views North Carolina’s electoral scheme from the wrong vantage point,” he wrote. “It is true, as Plaintiffs point out, that at the time of SDR voting, traditional registration methods are no longer available because of the proximity to election day. But to suggest that North Carolina has forced SDR users into this situation is meritless.”

“The evidence establishes that North Carolina offers extensive opportunities for voting and registration, including five more days of traditional registration than is required under federal law, 2,600 polling places, no-excuse absentee voting, and curbside voting,” Schroeder added. “An individual’s decision to forego traditional registration is almost certainly the product of his or her own choice.”

SB 747 also addressed a legitimate government interest, Schroeder determined.

“The court concludes that the state’s asserted interests are served by SB 747, and that any minimal burden imposed is justified in relation to those interests,” the judge wrote. “SB 747 serves the efficient administration of elections, aids in the prevention of fraud and the appearance of fraud, and promotes public confidence in the integrity of the electoral process.”

“Concerns over timing problems with second cards for SDR are not new,” he added. “Indeed, the State Board has expressed such concerns for almost a decade. And members of the North Carolina public shared these concerns.”

“Though SB 747 does not fully address these concerns – as evidenced by the fact that a ballot will remain in the count if the associated verification card returns as undeliverable within two days of county canvass – it goes some length toward addressing the problem of conducting a second verification too late in the process (i.e., after the vote is counted but the verification thereafter fails) and promoting public confidence in election security,” Schroeder wrote.

“A legislature is not precluded from improving the system because of its inability to perfect it. Nor should election changes become a one-way ratchet, incapable of improvement merely because voting may become marginally harder,” he explained.

“Federal judge upholds NC law changing same-day voter rules” was originally published on www.carolinajournal.com.