Elections board wants three-judge panel to hear ‘never residents’ case

The North Carolina State Board of Elections is asking for a three-judge Superior Court panel to hear a lawsuit challenging “never residents” as voters in state elections. Parties in the case are seeking a May 18 hearing in the case.

The “never residents” issue played a role in the months-long battle over North Carolina’s 2024 state Supreme Court election.

State law requires three-judge panels to address any case involving a “facial” constitutional challenge to a state law. A facial challenge argues that a law cannot stand under any circumstances. In contrast, an “as-applied” constitutional challenge argues that a law is unconstitutional only under the circumstances unique to a particular plaintiff.

State and national Republican Party groups filed a motion for summary judgment in March in the case Kivett v. North Carolina State Board of Elections. The GOP groups seek a court ruling that people who have never lived in North Carolina cannot cast ballots in state elections.

A trial date is scheduled in July.

The elections board filed a motion Friday seeking to move the case from a single Wake County Superior Court judge to a three-judge panel to be appointed by state Supreme Court Chief Justice Paul Newby.

“Here, Plaintiffs assert that the constitutional challenge raised in Count One of the Complaint is an as-applied challenge. They are mistaken,” wrote state government lawyers representing the elections board. “In their Complaint, Plaintiffs raise a facial challenge by attacking the plain language of Section 163-258.2(1)(e).”

“Plaintiffs have not alleged facts in the Complaint that are limited to their circumstances,” the motion added. “Although Plaintiffs pepper the Complaint with the phrase ‘as-applied,’ their request is not limited to their own circumstances. Plaintiffs’ core theory in Count One is that the challenged statute is facially unconstitutional because it permits the registration of voters in the State who do not meet the residency requirements of the North Carolina Constitution.”

“In other words, Plaintiffs do not seek to enjoin enforcement of the challenged statutes only against themselves; they seek to have the Court permanently enjoin election staff statewide from allowing non-resident citizens (who have never lived in the state) to vote in the 2024 election and all elections going forward,” the elections board’s lawyers wrote.

“Plaintiffs again claim a violation ‘as-applied’ to them — two individuals, a national political party, and a statewide political party — but the relief requested is not limited to them,” according to the motion. “Instead, if granted, the requested relief would result in a statewide injunction removing and preventing these non-resident citizens from voting for all contests on the ballot federal, state, and local in this election and all elections going forward. Because the remedies requested by Plaintiffs seek to prevent what the ‘plain language’ of Section 163-258.2(1)(e) ‘expressly allows,’ … this is a facial challenge.”

Lawyers for the Republican National Committee, North Carolina Republican Party, and two individual voters — Telia Kivett and Wanda Nelson Fowler — explained last month why they believe a court should rule in their favor.

“Summary judgment is appropriate because there is no genuine issue of material fact that Defendants’ application of N.C. Gen. Stat. § 163-258.2(1)(e) to permit individuals who have never resided in North Carolina (‘Never Residents’) to register to vote and cast ballots in North Carolina elections — whether state, local, or federal — violates the North Carolina Constitution,” GOP lawyers wrote.

“Federal law does not address or authorize voting by Never Residents, and it is well-established that the United States Constitution entrusts states with primary authority to design and administer their electoral systems and set qualifications for voters,” the motion added. “Accordingly, in the absence of any federal statutory directives, any ability for such individuals to register or vote in North Carolina elections must arise, if at all, under state law.”

“But the North Carolina Constitution expressly limits the franchise to residents of the State,” GOP lawyers wrote, citing Article VI, section 2 of the state’s governing document. “Construing N.C. Gen. Stat. § 163-258.2(1)(e) in a manner that purports to extend the franchise beyond those clear limits is therefore unconstitutional as applied.”

“The North Carolina Court of Appeals recently held that Never Residents are constitutionally prohibited from registering or voting in North Carolina’s state contests,” the motion continued, citing a 2025 ruling in the state Supreme Court electoral dispute between Democrat Allison Riggs and Republican Jefferson Griffin. “The same constitutional reasoning likewise precludes Never Residents from voting in North Carolina’s federal election contests. Accordingly, Plaintiffs are entitled to summary judgment as a matter of law.”

The March court filing explained the reason for delaying a scheduled trial from April to July.

“At the time of the Court’s prior continuance order, the parties were engaged in ongoing discussions concerning the resolution of the case,” according to the court filing. “While the parties actively sought resolution, the parties have recently reached an apparent impasse in those efforts. Despite that recent development, the parties remain hopeful that a comprehensive settlement may be reached.”

Republican groups filed paperwork in February dropping an appeal to the state Supreme Court in the Kivett case, writing “there is no further relief sought from this court.” The Republican groups asked for an order “dismissing this appeal in its entirety.”

GOP lawyers first turned to the state Supreme Court days before the November 2024 election.

“Plaintiffs seek a simple but necessary solution to remedy an ongoing and increasingly dangerous threat to the integrity of North Carolina’s elections,” they wrote. “Evidence in the record makes clear that Defendants are allowing, in their own words, an ‘unknown’ number of overseas citizens who have never resided in North Carolina to register and vote in the state’s elections. This is an unabashed violation of Article VI § 2 of the state Constitution. Thus, Plaintiffs seek an order enjoining Defendants from counting these potentially illegal ballots and instead segregating and counting them as provisional ballots until the voter’s qualifications under all applicable and constitutional state and federal laws can be adequately established.”

The “never residents” issued played a role in the 2024 election that pitted North Carolina Supreme Court Justice Allison Riggs, a Democrat, against state Appeals Court Judge Jefferson Griffin, a Republican.

Riggs, an appointed incumbent, had to wait until May 2025 to be certified as the winner of the November 2024 election. She defeated Griffin by 734 votes out of more than 5.5 million ballots cast.

Griffin challenged the results in state and federal court. He questioned more than 65,000 ballots cast statewide. Most were cast by voters with registration records that appeared to lack federally required driver’s license or Social Security numbers. Griffin’s challenges also focused on overseas voters who provided no photo identification and “never residents,” voters who checked a box on a voter form indicating they had never lived in North Carolina.

The State Board of Elections certified Riggs as the winner after US Chief District Judge Richard Myers issued a May 5, 2025, order ending the election dispute. Myers rejected a state Supreme Court decision in April 2025 that placed at least 1,675 and as many as 5,700 ballots from the 2024 election in question.

Republican groups filed the Kivett case in 2024 while Democrats held a 3-2 majority on the State Board of Elections. Senate Bill 382, approved after the 2024 election, transferred election board appointments from the governor to the state auditor. Then-Gov. Roy Cooper and his successor, Gov. Josh Stein, are Democrats. Auditor Dave Boliek is a Republican.

Boliek used his appointments in 2025 to flip the elections board to a 3-2 Republican majority. The North Carolina Appeals Court heard oral arguments in February in Stein’s lawsuit challenging the appointment shift.

“Elections board wants three-judge panel to hear ‘never residents’ case” was originally published on www.carolinajournal.com.