North Carolina’s voter rolls are less secure than they should be. One reason for that reduced security is that hundreds of thousands of voter registrations are missing data that would help officials keep the rolls clean. A new lawsuit from the U.S. Department of Justice aims to correct that problem, but it will almost certainly result in a settlement because election officials agree with them.
State elections board fails to comply with voter registration law
Both Section 303(a) of the federal Help America Vote Act of 2002 (HAVA) and state law require officials to collect the driver’s license number or the last four digits of the applicant’s Social Security number (collectively known as “HAVA numbers”) from people registering to vote. State law further requires election officials to make a “diligent effort” to get all required information, including HAVA numbers. HAVA is even more strongly worded, stating, “an application for voter registration for an election for Federal office may not be accepted or processed by a State” unless it includes one of those HAVA numbers. The only exception is for the vanishingly small number of citizens who have neither number.
Including HAVA numbers with voter registrations is essential because it allows election officials to compare registrations with other state data lists. That helps with list maintenance, removing those no longer eligible to vote where they are registered. As the State Board of Elections (SBE) has noted, “Voter roll list maintenance is important because it ensures ineligible voters are not included on poll books, reduces the possibility for poll worker error and decreases opportunities for fraud.”
However, hundreds of thousands of North Carolina voter registrations lack HAVA numbers because of a poor voter registration application design and a lack of “diligent effort” by election officials.
After North Carolina citizen Carol Snow filed a series of complaints, the SBE agreed to redesign the voter registration application. However, they refused to make any effort, much less a diligent one, to collect the missing HAVA numbers for the registrations that did not have them.
That failure prompted lawsuits, including one from Supreme Court candidate Jefferson Griffin. Griffin’s lawsuit was not resolved until early May.
The North Carolina Supreme Court ruled that ballots from voters registered with missing HAVA numbers would still be counted in the 2024 election. It also pointed out that election officials are not in compliance with the law:
In 2023, however, the Board became aware and admitted that it had not been in compliance with these requirements since they were initially imposed… The Board’s inattention and failure to dutifully conform its conduct to the law’s requirements is deeply troubling.
In other words, while the court would not impose a post hoc correction to fix the missing HAVA number problem, the SBE is on notice that it needs to correct the problem or it will certainly lose the next lawsuit on that topic.
That next lawsuit is here.
The Trump DOJ enters the fray
The U.S. Department of Justice (DOJ) filed a federal lawsuit against the SBE on May 27 over its failure to enforce the HAVA number requirement:
In violation of HAVA’s mandate and clear Congressional intent, the State of North Carolina used a state voter registration form that did not explicitly require a voter to provide a driver’s license or the last four digits of a social security number…
After an administrative complaint identified North Carolina’s violations of Section 303(a) of HAVA, Defendants admitted the violations.
Nevertheless, Defendants only took limited actions to prevent future violations from reoccurring by adopting a new voter registration form that required applicants to provide their driver’s license or last four digits of their social security number, if they had one of those forms of identification.
Upon information and belief there currently are a significant number of voters that do not have a driver’s license number, last four digits of a social security number, or any other identifying number, as required by Section 303 of HAVA, listed in North Carolina’s state voter registration file. Those violations will continue absent relief from this Court.
The DOJ is asking the court to:
- Declare that the SBE and the State of North Carolina (the defendants) are not in compliance with Section 303(a) of HAVA.
- Require the defendants to comply with Section 303(a) of HAVA.
- Require the defendants to develop a plan within 30 days to get the missing HAVA numbers for registrations that lack them.
Those are essential requirements. The SBE should have started collecting the missing HAVA numbers in 2023, if not before, and it is unconscionable that it has failed to do so so far. As Assistant Attorney General Harmeet Dhillon stated in the DOJ’s announcement of the lawsuit:
Accurate voter registration rolls are critical to ensure that elections in North Carolina are conducted fairly, accurately, and without fraud. The Department of Justice will not hesitate to file suit against jurisdictions that maintain inaccurate voter registration rolls in violation of federal voting laws.
That said, the lawsuit is probably premature.
In early May, a new SBE board majority was named. Their first action was to replace the executive director with Sam Hayes, who previously served as the general counsel for the North Carolina House Speaker. That new leadership will undoubtedly treat the missing HAVA number problem more seriously than the previous leadership, especially now that the state Supreme Court has put them on notice.
In fact, Hayes, the first-named defendant in the complaint, seems inclined to agree with DOJ:
I was only recently notified of this action by the United States Department of Justice. We are still reviewing the complaint, but the failure to collect the information required by HAVA has been well documented. Rest assured that I am committed to bringing North Carolina into compliance with federal law.
With the SBE acknowledging that they have not been following federal (and state) law, they would have likely started working to comply with HAVA on their own by issuing guidance to county election boards to start collecting HAVA numbers for those registrations that lack them. At best, this lawsuit will accelerate that process by a few months while diverting DOJ resources from other actions.
The lawsuit will almost certainly end in a settlement with the Hayes and the SBE agreeing to make a plan to collect the missing HAVA numbers before the 2026 midterm primaries, if not sooner.
