Judge to hear competing arguments Monday about ‘never resident’ voters

A Superior Court judge will hear arguments Monday in a lawsuit challenging the right of “never residents” to cast ballots in North Carolina’s federal elections.

“Never residents” are adults born outside the United States whose parents or guardians last lived in this state before moving overseas. The state’s Uniform Military and Overseas Voter Act allows “never residents” to vote in North Carolina. But state and national Republican Party groups first challenged the law in 2024.

The issue played a role in the months-long dispute over the outcome of the 2024 state Supreme Court election.

Monday’s hearing before Special Superior Court Judge Hoyt Tessener will address competing motions from Republicans, Democrats, and the North Carolina State Board of Elections.

The Republican National Committee, North Carolina Republican Party, and two individual Republican voters will ask Tessener to grant them summary judgment in the case Kivett v. State Board of Elections. The GOP plaintiffs argue that they should win the dispute and have the state law struck down.

The Democratic National Committee and state elections board have filed separate documents objecting to summary judgment for the Republican groups. Democrats and election officials are also seeking the case’s dismissal. Democrats have made a separate request for one piece of the case to be transferred to a three-judge Superior Court panel.

“The issues presented have already been decided several times over — first by the North Carolina Court of Appeals, … then the North Carolina Supreme Court, … and finally the Eastern District of North Carolina,” lawyers representing the GOP plaintiffs wrote Thursday.

“This case turns on the application of those holdings to a set of undisputed facts,” the Republican court filing continued. “Since 1868, the North Carolina Constitution has limited the right to vote to residents of the State.”

Court rulings responding to state Supreme Court candidate Jefferson Griffin’s 2024 election challenges have addressed the issue, GOP lawyers argued. The court filing refers to those rulings collectively as “Griffin.”

“Griffin gives effect to that limitation by confirming that individuals who have never lived in North Carolina (‘Never Residents’) may not vote in its elections,” according to the court filing. “The question here is whether that same constitutional constraint allows a different result depending on election type. It does not.”

The state Supreme Court “held that Never Residents are prohibited from voting in North Carolina’s state election contests,” the brief explained. “Following that decision, the State Board tried to identify and prevent Never Residents from registering and voting in those contests.”

“Yet despite expressly prohibiting Never Residents from voting in state elections, the State Board continues to allow their participation in federal elections under the same statutory interpretation of N.C. Gen. Stat. § 163-258.2(1)(e) that Griffin rejected,” GOP lawyers added. “But a federal court has already found that Never Residents have no protectable interest in voting under federal law. The State Board’s contrary positions cannot be squared.”

“All that remains for this Court is a simple question requiring the straightforward application of precedent,” the court filing continued. “Neither the State Board nor [DNC] Intervenor-Defendant contest the holding of any Griffin case, and they were parties to those cases. “Instead, Intervenor-Defendants try to distract and delay, asking this Court to transfer a portion of this case to a three-judge panel on a theory presented and directly rejected” in the state Supreme Court’s Griffin decision.

“But with the 2026 midterms fast-approaching, duly qualified North Carolina voters need clarity,” GOP lawyers argued. “Moreover, the State Board’s conflicting registration practices risk ushering in election-altering outcomes for federal contests. Because the material facts are undisputed and the issue presented is one of law, summary judgment should be granted in Plaintiffs’ favor.”

The elections board responded Thursday that the Griffin court cases determined only that “’Never Residents’ are ineligible to vote in non-federal North Carolina elections.”

“The Griffin Court did not, however, extend its holding to federal elections in the State, invalidate N.C.G.S. § 163-258.2(1)(e), or criticize the State Board for adhering to the statutory requirements for participation by Never Residents in North Carolina elections,” the elections board’s lawyers wrote. “Therefore, Never Residents remain eligible to vote in federal elections in North Carolina pursuant to N.C.G.S. § 163-258.2(1)(e).”

The elections board “continues to apply N.C.G.S. § 163-258.2(1)(e) consistent with its plain language and the Griffin holding,” according to the court filing.

A DNC court filing characterized the GOP lawsuit as an “attempt to disenfranchise North Carolina’s military families and overseas voters in bulk, i.e., without consideration of their individual circumstances.”

Democrats offered three reasons to dismiss the GOP case.

“First, Plaintiffs failed to exhaust administrative remedies: State law requires Plaintiffs to contest a voter’s residency through the challenge process provided by the General Assembly,” DNC lawyers wrote. “Second, Plaintiffs failed to implead necessary parties: Voters are necessary parties to any action seeking to deem them non-residents, and state legislative leaders are necessary parties to Plaintiffs’ facial constitutional challenge to UMOVA. Third, Plaintiffs have failed … to allege facts sufficient to show that voters who mark that they have ‘never lived’ in the U.S. must submit additional proof of residency.”

The targeted law — NC Gen. Stat. § 163-258.2(1)(e) — allows an overseas voter born outside the United States to cast a ballot in North Carolina’s elections if he meets other eligibility requirements and two other criteria. “The last place where a parent or legal guardian of the voter was, or under this Article would have been, eligible to vote before leaving the United States is within this State,” and “The voter has not previously registered to vote in any other state.”

Lawyers for the Republican National Committee, North Carolina Republican Party, and two individual voters — Telia Kivett and Wanda Nelson Fowler — explained in a March court filing 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. “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 “never residents” issue played a role in the 2024 election that pitted North Carolina Supreme Court Justice Allison Riggs, a Democrat, against Griffin, a Republican state Appeals Court judge.

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, when 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.

“Judge to hear competing arguments Monday about ‘never resident’ voters” was originally published on www.carolinajournal.com.