- The new board at the State Board of Elections is well-positioned to correct election law violations exposed by Jefferson Griffin’s lawsuit
- Those problems include voter registration irregularities, voter ID violations, and violations of the constitutional prohibition of voting by people who have never lived in North Carolina
- A federal court ruling overturning the retroactive application of corrections of those violations did not invalidate the corrections themselves
May 7 was a momentous day in North Carolina politics. A new Republican-majority board was sworn in at the State Board of Elections (SBE), and Judge Jefferson Griffin conceded his North Carolina Supreme Court race to incumbent Justice Allison Riggs. The juxtaposition of those events is fortunate because the new board is well-positioned to correct the problems Griffin raised in his lawsuit against the old board.
Here are three things the SBE must fix.
Fix the problem of registrations missing HAVA numbers
Federal and state law both require election officials to collect either the driver’s license or the Social Security number of registered voters.
The Help America Vote Act of 2002 (HAVA) prioritizes driver’s license numbers to help election officials comply with another part of the law requiring them to match voter records with Department of Motor Vehicles records. In cases where applicants do not have a driver’s license, election officials may use their Social Security numbers or a state-issued ID number for the exceedingly small portion of the population without either a driver’s license or a Social Security number.
North Carolina law (G.S. § 163-82.4) has the same requirement for collecting a registrant’s driver’s license or Social Security number (collectively known as “HAVA numbers”). It also requires “diligent effort” from election officials in getting complete information:
The county board shall make a diligent effort to complete for the registration records any information requested on the form that the applicant does not complete, but no application shall be denied because an applicant does not state race, ethnicity, gender, or telephone number.
Note that HAVA numbers are not on the list of optional information (“race, ethnicity, gender, or telephone number”) for voter registrations.
Following a series of citizen complaints, which revealed that hundreds of thousands of voter registration records lacked HAVA numbers, the SBE agreed to change voter registration forms to indicate that HAVA numbers are required information.
Nevertheless, they declined to ask county boards of elections to make any effort, much less a diligent one, to complete the registration records with missing HAVA numbers. To make matters worse, SBE General Counsel Paul Cox reported that “some spot-checking” of registration records found that county elections officials had some of those HAVA numbers. Still, they were not “populated into the statewide computerized database.”
The new SBE leadership should instruct county boards to add the HAVA numbers they have to voter registration records as quickly as possible and to contact voters without HAVA numbers to add them to their records.
Another option would be for the General Assembly to make provisional the ballots from voters whose records are missing HAVA numbers until they provide them or attest that they have neither number. That should be an easy fix in most cases since North Carolina requires voter ID, and the most common form of voter ID by far is a driver’s license. Officials can collect that information as people vote.
Require IDs for military and overseas ballots
SBE Executive Director Karen Brinson Bell claimed in an email on August 25, 2024, that “[w]hen a military or overseas citizen voter submits their ballot, neither federal nor state law requires them to provide ID when returning their ballot.” Griffin included the text of that email as evidence in a protest to the SBE board.
Bell based that claim on the belief that military personnel and overseas individuals who vote through state procedures established to conform with the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) are exempt from the normal laws regulating absentee ballots. Those military and overseas procedures are found in Article 21A of Chapter 163 of North Carolina law, while general absentee voting procedures, including voter ID, are found in Article 20.
According to Article 20, however, standard absentee voting requirements apply to military and overseas voting unless otherwise stated. The article (specifically, G.S. § 163‑239) states: “Except as otherwise provided therein, Article 21A of this Chapter shall not apply to or modify the provisions of this Article.” There is no immunity in Article 21A to the Article 20 voter ID requirement.
The North Carolina Supreme Court affirmed the voter ID requirement for military and overseas ballots in its April 11 ruling, so the new SBE board must require voter ID for all absentee ballots, including military and overseas, and develop a means to attach voter IDs to electronically submitted military and overseas ballots.
Produce federal-only ballots for never residents
Article VI, Section 2(1) of the North Carolina Constitution states that only residents of the state may vote in North Carolina elections:
Any person who has resided in the State of North Carolina for one year and in the precinct, ward, or other election district for 30 days next preceding an election, and possesses the other qualifications set out in this Article, shall be entitled to vote at any election held in this State.
A 1971 federal court ruling reduced the state residency requirement to 30 days. A federal court upheld that 30-day requirement in 2024. Someone who has never set foot in North Carolina has not satisfied that residency requirement.
On the other hand, the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) “requires that the states and territories allow certain groups of citizens to register and vote absentee in elections for Federal offices” (emphasis added). In response to that federal law, the General Assembly included the people who have never resided in North Carolina in the list of people who could vote in North Carolina if their parents or legal guardians last lived in North Carolina before moving abroad (G.S. § 163‑258.2(1)e).
The state Supreme Court ruled that allowing “never residents” to vote in state elections “violated the plain language of Article VI, Section 2(1) of the North Carolina Constitution.”
The solution for the supposed conflict between the North Carolina Constitution and UOCAVA is for county boards of elections to issue federal-only ballots to never residents. The SBE should quickly issue guidance to county boards of elections to do so.
But wasn’t the North Carolina Supreme Court ruling overturned?
Federal District Court Judge Richard Myers wrote in his May 5 ruling that the state Supreme Court’s April 11 ruling violated voters’ equal protection and due process rights. However, Myers also stated his ruling did not undercut “the prerogative of North Carolina courts to interpret North Carolina law.” He further stated:
This case is also not about North Carolina’s primacy to establish rules for future state elections; it may do so. Rather, this case concerns whether the federal Constitution permits a state to alter the rules of an election after the fact and apply those changes retroactively to only a select group of voters, and in so doing treat those voters differently than other similarly situated individuals.
In other words, he did not overturn the substantive findings in the state Supreme Court’s ruling, just their retroactive application. Military and overseas voters must submit a voter ID in future elections, and never residents can vote only in federal elections.
Likewise, while the state Supreme Court declined to find in favor of Griffin on the missing HAVA numbers, it stated that “the Board’s inattention and failure to dutifully conform its conduct to the law’s requirements is deeply troubling.”
Given those rulings, the new SBE board is on notice that it must correct the violations of election law and the state constitution exposed by Jefferson Griffin’s lawsuit. The time to correct those violations is now.
