Fourth Circuit finds North Carolina voter eligibility suit a federal matter

RALEIGH, N.C. (CN) — A Fourth Circuit panel ruled against the Republican National Committee Tuesday, sending a North Carolina voter eligibility lawsuit asking to purge more than 225,000 voters back to federal court, just one week out from Election Day.

The ruling is a win for election officials and the Democratic National Committee, who argued to the three-judge panel Monday after they appealed an order remanding the case back to state court.

The federal court has jurisdiction over the Republican’s state constitutional claim that the North Carolina State Board of Elections improperly added thousands to the voter roll because of errors on the state voter registration form, because it includes a federal question to the Help America Vote Act, U.S. Circuit Judge Nicole Berner wrote in the majority opinion published Tuesday.

“The complaint contains no articulation of a state constitutional violation separate and apart from an alleged HAVA violation,” Berner, a Joe Biden appointee, wrote. “This is a state cause of action in name only.”

Determining if the state elections board violated the Help America Vote Act is also necessary, Berner said, because the plaintiffs’ constitutional argument “runs squarely through HAVA.”

The case, which was originally filed in state court, then removed by the defendants to federal court, had a statutory claim dismissed and was remanded back to state court earlier in October. That decision was appealed to the Fourth Circuit panel who now sends it back to federal court, calling the decision to send it to state court “improper.”

The Republican National Convention and the state Republican party had argued that by violating the federal voting statute the board also violated state voting laws, and the case is therefore strictly about state law and the state constitution.

Republicans had wanted voters who registered with the forms to be removed from the state’s voter roll, or be required to validate their eligibility by voting provisionally.

Because North Carolina uses the same registration system for both state and federal elections, it may be bound by the National Voter Registration Act, which prevents systematic voter removal within 90 days of an election. The act poses a federal question, Berner said, that needs to be settled before Republicans can prevail with their claim.

“We are confident that Congress did not intend to prevent federal courts from deciding cases where the sole issue, the interpretation of a federal statute, may determine who can vote in a federal election,” Berner wrote. “The mere invocation of a state constitutional provision does not unsettle that conclusion.”

U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, also joined Berner’s opinion.

The plaintiffs had hoped for the case to be sent back to state court, where the standing requirements are lower than federal court, and the case would be easier to win.

Chief U.S. Circuit Judge Albert Diaz,  a Barack Obama appointee, commented on standing in a concurring opinion, noting that regardless of the debate over what is is considered a state or federal constitutional violation, Republicans would have “just barely” met the organizational standing requirements necessary for a case in federal court and are “woefully short” on associational standing.

“A plaintiff’s harm must be concrete, it must be imminent, and it must be particularized. The plaintiffs’ voter dilution claim is not: it reaches every North Carolina voter, even if they’re not the plaintiffs’ preferred ones,” he wrote.

The case will return to U.S. District Judge Richard Myers II — who had kicked the case back to state court — to determine if the defendants violated state law through non-compliance with the Help America Vote Act.

Republicans initially sued the state board of elections in August over a voter registration form that didn’t require voters to fill out their driver’s license number or the last four of their social security number, identifying information required to confirm their eligibility to vote.

Because the board accepted over 225,000 forms, non-citizens may be able to cast a vote in the presidential election, diluting valid voters’ votes, the plaintiffs argued.

“They cannot prevail on their state constitutional claim without first proving that there was in fact a violation of federal law here,” Susan Boyce, an attorney representing the state board of elections, argued Monday. “Their entire theory of vote dilution falls apart if, in fact, they are unable to prove that there was a HAVA violation here, because of course that would mean that there were no illegal votes, and thus no vote dilution.”

The state board of elections had argued that they can’t remove voters from registration lists because it would violate the National Voter Registration Act.

That doesn’t apply in this case, Phil Strach, an attorney representing the Republican plaintiffs had argued Monday, because the state board did not confirm eligibility before registering voters, and therefore they are not properly registered.

Neither Strach nor Boyce immediately replied to a request for comment.

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