Judge blocks tighter rule on same-day registration in North Carolina elections

RALEIGH, N.C. — A federal judge has blocked, for now, a new law recently approved by North Carolina lawmakers that tightens a rule on when a ballot cast by someone who is simultaneously registering to vote is removed from election counts.

The preliminary injunction from U.S. District Judge Thomas Schroeder tells elections workers they can't nullify ballots by screening citizens who register and immediately vote during a 17-day period before a primary or general election through an altered method unless applicant protections are created.

Over 100,000 new registrants have sought “same-day registration” in North Carolina during each of the last two presidential general elections, so slight adjustments in the closely divided state could make a difference in this November's elections for president, governor and other statewide positions. Early in-person voting — and thus same-day registration — for the March 5 primaries begins Feb. 15.

The new law is contained within broader voting administration legislation enacted by the Republican-controlled General Assembly in the fall over Democratic Gov. Roy Cooper's veto. It would, in part, remove a registrant's ballot from the count after one mailed notice to the person's address by election officials is returned as undeliverable, instead of two under the previous law.

The new provision has been challenged in at least three lawsuits. Schroeder’s 94-page ruling Sunday involved two of the lawsuits filed in October, one by the state and national Democratic parties and the other by national and local voter advocacy groups and a voter.

Schroeder, who was nominated to the bench by President George W. Bush, wrote that the one-mailer procedure doesn't provide due-process protections for voters to learn that their registrations were rejected and to appeal the decision to officials so the ballots could still count.

The plaintiffs said the new procedure would increase the risk that U.S. Postal Service mishaps and paperwork errors would lead to more registration denials. Schroeder's order cited evidence from a plaintiff called Voto Latino about election worker errors leading to verification cards being returned as undeliverable in 2022.

The plaintiffs have demonstrated a likelihood that the provision giving people only one chance to verify by mail will impose a “substantial burden on same-day registrants who cast a ballot,” Schroeder said. They “will face a non-trivial risk of being erroneously disenfranchised by failing address verification due to governmental error, rather than factors related to their eligibility to vote, without any notice and opportunity to be heard,” the judge's ruling said.

Schroeder, whose ruling can be appealed, said his injunction would remain in force until due process concerns are addressed.

Two GOP state House leaders, Speaker Tim Moore and elections committee chair Rep. Grey Mills, said Monday in a news release that Schroeder's order “requires relatively minor changes" and that they were working with the State Board of Elections “to ensure that the entire bill is in effect before the primary and general elections this year.”

Representatives of some of the plaintiffs praised the ruling as a “major victory” and will “continue working to ensure that the (mail provision) does not wrongfully disenfranchise eligible North Carolinians in 2024,” attorney Aria Branch said in a news release.

Lawyers for the state board and GOP legislative leaders defending the new verification rule in court have said reducing the number of mailers to confirm the applicant’s mailing address attempts to address a problem with same-day registration.

The previous law could lead to situations where the second verification mailer is returned as undeliverable after vote totals are finalized, meaning the ineligible registrant’s ballot is still counted. State lawyers also said a ruling in a previous lawsuit discourages efforts by local election boards to challenge such votes before the final count.

Schroeder acknowledged there are legitimate interests in using address verification to promote preserving the integrity of the election process and instilling voter confidence. But he wrote the plaintiffs have shown the state's “precise interests asserted in this case likely do not outweigh the substantial burden on the rights of same-day registrants who cast a ballot.”

For the November 2020 election, for example, about 2,150 new same-day registration applicants in North Carolina failed the address verification. But Schroeder said the state board and Republican legislators “have presented no evidence that address verification has ever filtered out a single ineligible same-day registrant.”

Schroeder refused to issue preliminary injunctions sought by the Democratic National Committee, state Democratic Party and others on other provisions related to same-day registration. The new law contains other provisions that also remain in effect, including increasing access by partisan poll observers at voting sites and requiring mail-in absentee ballots be returned by election night in order to count.

The state Republican Party and Republican National Committee also joined the lawsuit as defendants.