- The North Carolina General Assembly addressed a “ghost voter” problem, which involves verification of same-day registrations before associated ballots are counted
- A U.S. District Court upheld the verification process but enjoined its enforcement until election officials initiate a notification procedure for the affected registrations
- The State Board of Elections can implement a notification process that lifts the injunction, but recent history suggests they may fail to do so in a way that complies with state law
A U.S. District Court judge issued an injunction on January 18 preventing election officials from enforcing a new same-day registration verification law. Election officials must create a notification procedure for the affected registrants. While the State Board of Elections (SBE) could implement such a procedure before the March 5 primary, the General Assembly should make a permanent correction in the law before the general election.
New Law Addresses “Ghost Voters” Problem
I wrote last year about a problem with “ghost voters” in North Carolina. Roughly 1,760 ballots were counted from unverified same-day registrations (SDRs) in 2020, even though county boards of elections could not verify those registrations and later had to remove them from voter rolls. In other words, about 1,760 registrations were found to be invalid, yet the ballots associated with those registrations were still counted.
I also noted how the unverified rate for SDRs (1.82 percent) is almost twice as high as the unverified rate for non-SDR new registrations (0.95 percent). They went through the same verification procedures, so the most likely explanation for that variance is deficiencies in the SDRs.
Notwithstanding any other provision of this Chapter, if the Postal Service returns the first notice required under G.S. 163-82.7(c) as undeliverable before the close of business on the business day before canvass, the county board shall not register the applicant and shall retrieve the applicant’s ballot and remove that ballot’s votes from the official count.
In other words, if election officials could not verify the registration through a mailing by the day before the canvass (nine days after election day), the registration would be removed, and the associated ballot would not be counted.
A Lawsuit and an Injunction
On the same day the General Assembly overrode Gov. Cooper’s veto, two groups filed lawsuits against SB 747. One of those, Voto Latino v. Hirsch, was filed by lawyers from the Elias Law Group with several left-wing organizations and two students listed as plaintiffs. They sued the SBE and the boards of elections for Durham and Watauga counties. The General Assembly and the Republican National Committee joined as intervening defendants.
Schroeder issued a preliminary order on January 18. He noted on pages 23–24 of the order that the plaintiffs were seeking “preliminary injunctive relief” against five aspects of the law:
- “requiring same-day registrants… to produce documentation that other registrants need not produce”
- “denying a same-day registrant’s application to register without providing that individual with sufficient notice and a meaningful opportunity to be heard” [emphasis added]
- “rejecting a same-day registrant’s application to register based on the return of a single notice as undeliverable by the U.S. Postal Service”
- “applying different voting-registration standards, practices, or procedures to different individuals in the same county”
- “failing to provide a free-access system by which same-day registrants can track their retrievable ballots.”
The judge granted an injunction only on the second item, requiring election officials to give denied registrants notice and a “meaningful opportunity to be heard.” The SBE has the authority under the court order to implement an interim plan to contact registrants whose address verification failed. Any remedy from the SBE “must not otherwise conflict with the provisions of Chapter 163” (North Carolina elections law).
Finally, he stated that plaintiffs’ motions “are, in all other respects, DENIED” [all caps in the original]. The underlying SDR verification law can be implemented as long as a notification procedure is implemented.
The State Board of Elections Can Fix the Problem. But Can They Fix the Problem?
So county boards of elections can enforce the SDR verification provision in the March 5 primary if they can get timely guidance from the SBE on registrant notification. Everything should be fine as long as state election officials don’t screw it up.
The problem is that they have screwed it up before.
In language similar to Schroeder’s ruling, Federal District Court Judge William Osteen issued a preliminary injunction in August 2020 in Democracy NC v. NC Board of Elections that “enjoins the State BoE from allowing county boards of elections to reject a delivered absentee ballot without notice and an opportunity to be heard until the State BoE puts such a uniform procedure in place.”
Instead of simply setting up a procedure for notifying voters whose ballots were not witnessed, SBE Executive Director Karen Brinson Bell used the order as a means to gut the requirement that absentee ballot envelopes be signed by two witnesses, as required by state law.
Judge Osteen was not amused.
In his final ruling, Osteen prohibited the SBE from carrying out its “witness signature cure process” because it “is inconsistent with this court’s August Order, which found the state’s statutory witness requirement constitutional.” He then pointed out that the cure process not only violated state law but also Bell’s own testimony:
In addition to denying its representations about this court’s August Order, the SBE also claims it did not frustrate the August Order because its revisions do not actually eliminate the witness requirement. Yet Revised Memo 2020-19 clearly subverts this court’s findings in its August Order by effectively eliminating the contemporaneous witness requirement. (Revised Memo (Doc.143-1) at 2.) According to Ms. Karen Brinson Bell, Executive Director of the SBE, the Revised Memo allowed “an envelope with a missing witness signature [to] be cured by the voter attesting that he or she voted their ballot and is the voter.” (Declaration of Karen Brinson Bell (“Bell Decl.”) (Doc. 151-3) ¶9.) Ms. Bell’s declaration contradicts her testimony before this court, in which she stated unequivocally that a ballot with a missing witness signature could not be cured, but instead had to be spoiled.
If the SBE Cannot Fix the Problem, the General Assembly Should
We now have a similar situation in which a federal judge upholds the underlying law but issues a preliminary injunction blocking its enforcement until a notification process is implemented. Given the SBE’s recent history, you can be excused for worrying about their ability to simultaneously follow Judge Schroeder’s order and comply with state law.
If the SBE cannot issue guidance enforcing Schroeder’s order that comports with state law — or fails to give any guidance before the March 5 primary — the General Assembly should address the issue in the upcoming legislative session.