RNC backs NC lawmakers, elections board in same-day voter case

The Republican National Committee is supporting top North Carolina lawmakers and the state elections board at the 4th US Circuit Court of Appeals. The RNC is urging the court to uphold a trial judge’s ruling in a case involving same-day voter registration.

Left-of-center activist groups challenge a portion of the 2023 state election law Senate Bill 747 called the “undeliverable mail provision.” Democracy North Carolina, the North Carolina Black Alliance, and the League of Women Voters of North Carolina argue that the UMP unconstitutionally harms younger voters.

US District Judge Thomas Schroeder upheld the law in March.

“North Carolina is one of about twenty-four States that offer same-day voter registration,” RNC lawyers wrote Thursday in a friend-of-the-court brief. “The North Carolina General Assembly enacted SB 747 to address a timing problem in same-day registration. During the State’s early voting period, an unregistered voter can register, prove residence by presenting a qualifying document, and cast a retrievable ballot; officials then mail a verification card to the voter’s listed address.”

“Under the former regime, officials would send a second verification card if the first returned as undeliverable; if the second was still outstanding at canvass, officials counted the ballot without knowing whether it too would be returned,” the brief explained. “SB 747 instead permits officials to decide before canvass whether to count a ballot when the first verification card is returned undeliverable.”

“Yet even an undeliverable verification card does not automatically disqualify the ballot,” RNC lawyers wrote. “Rather, officials check for data-entry errors and notify the voter, who can cure with a qualifying document or in-person verification. If the address-verification returns too late to allow cure, the ballot remains counted.”

Schroeder “found no material increase in the rate at which same-day ballots were rejected and no showing that same-day voters were meaningfully more likely to have ballots wrongly excluded,” Republican lawyers added. Schroeder “held that any burden was minimal and justified by the State’s interest in election integrity.”

The RNC brief rebutted the plaintiffs’ claims of a negative impact on younger voters. “The district court found that the State historically expanded young voters’ access, that the legislative process rejected more restrictive proposals, and that SB 747 did not worsen young voters’ denial rates,” Republican lawyers wrote. “That record does not show discriminatory intent.”

The elections board and top GOP lawmakers filed a 4th Circuit brief on July 23.

“Plaintiffs come to this Court with a monumental ask — to overturn a well-reasoned 108-page opinion that scrupulously evaluated the challenged provision of the law, the Undeliverable Mail Provision of SB 747 (the ‘UMP’), after a five-day trial with thirteen fact witnesses, four expert witnesses, and dozens of exhibits,” lawyers for the elections board and top lawmakers wrote. “The record and Plaintiffs’ opening brief offer no support for this request.”

“Plaintiffs failed to offer testimony from any voter allegedly impacted by SB 747’s changes to Same Day Registration (‘SDR’),” the brief continued. “Instead, Plaintiffs presented experts whose work was filled with flawed methodologies and execution, rendering their opinions unreliable.”

“Plaintiffs’ legal arguments fare no better,” the lawyers wrote. “They offer no case law supporting their claim that challenged election laws should be viewed in a vacuum instead of in conjunction with the State’s larger election scheme.”

“Plaintiffs failed to identify a concrete class of ‘young voters,’ oscillating amongst cohorts aged 18-25, 18-29, and college students, a failure they double-down on before this Court,” the brief added. “Plaintiffs also continue to minimize the presumption of legislative good faith — likely because they offered no evidence contradicting the sworn and credible testimony of the bill sponsors confirming that no demographic data, including age data, was used to draft SB 747, and normal legislative processes were followed.”

SB 747’s critics filed their opening 4th Circuit brief in June.

“Senate Bill 747 is a law that restricts same-day registration, a method of voting disproportionately used by young voters, by subjecting those voters to a unique risk that their ballots will be discarded after they are cast due to mail issues unrelated to the voter’s eligibility,” the groups’ lawyers wrote in an appellate brief. “This election law change did not emerge from a neutral reassessment of election administration; rather it was generated, urged, and justified by ‘election integrity’ activists who view this method of voting and the young voters who use it as unfairly ‘manipulating’ election outcomes.”

Schroeder “acknowledged both the origins of Senate Bill 747’s new restrictions on same-day registration (or ‘SDR’) and the expected harm to youth and college voters who use that voting method most,” the activist groups argued.

The trial judge’s ruling “details a monthslong influence campaign by Cleta Mitchell and James Womack (of the North Carolina Election Integrity Team) to introduce and embed a substantial limit on SDR into law,” according to the brief. Schroeder “recounts how youth voters disproportionately utilize SDR, how youth voters disproportionately relied on the protections of the old SDR system to verify their registrations, and how those trends continued into the 2024 elections, when Senate Bill 747 first went into effect.”

Yet Schroeder “made critical legal errors” when addressing the group’s claims that SB 747’s provisions violated their constitutional rights. The judge “treated same-day registrants as an inferior class of voters, entitled to less constitutional protection, because SDR is a form of voting ‘the state was not required to provide in the first place’ and anyone using it made the ‘choice’ to ‘forego traditional registration.’”

Schroeder’s approach “infected” his analysis, the groups argued. “The Constitution does not permit a state to codify anti-youth sentiments into a system that subjects targeted voters to a distinct and unjustified risk that their ballots will be rejected through no fault of their own.”

“When properly applying the appropriate standards, the SDR provision of Senate Bill 747 constitutes an undue burden in violation of the First and Fourteenth Amendments and violates the Twenty-Sixth Amendment’s prohibition against age-based discrimination in voting,” according to the brief.

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

Schroeder ruled against the plaintiffs and in favor of the State Board of Elections and top legislative leaders five months later.

“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. “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.

“RNC backs NC lawmakers, elections board in same-day voter case” was originally published on www.carolinajournal.com.