North Carolina Republicans ask Fourth Circuit to allow ballot eligibility check for thousands

RALEIGH, N.C. (CN) — Republicans want their case to have 225,000 North Carolina voters who filled out old voter registration forms cast provisional ballots and have their eligibility checked before their vote is counted to stay in state court, they told a Fourth Circuit panel Monday.

A faulty voter registration form, which has since been corrected, could allow ineligible voters to vote, the Republicans said. The state board of election failed to comply with restrictions under the Help America Vote Act, the Republican National Committee and state Republican party said in their August suit asking for ineligible registrants to be removed from voter rolls, or be required to cast a provisional ballot.

The board of elections and the Democratic National Committee, who intervened in the case, argued that the plaintiffs have standing in federal court and the case would likely be appealed if sent back down.

“The simple fact that the plaintiffs have cloaked their HAVA claim within and embedded it within a state constitutional law claim, does not change the fact that the key inquiry here, for purposes of proving their state constitutional claim, is whether or not HAVA has been violated,” Susan Boyce, an attorney for the state Department of Justice representing the state board of elections, said, arguing in favor of preventing the case from being remanded downwards.

Phil Strach, an attorney representing the Republicans, said that the case belonged in state court.

“We pled this as a state law case, and that is what it is. There are statutes that say, here’s who can be registered, here’s who can not. And we’ve said, look, there’s 225,000 people that have potentially not been properly registered under state law. That’s potentially a state constitutional violation. The North Carolina state courts ought to be able to decide that question.”

Even if those laws were based on federal law, he said, because the lawsuit was brought over violations of state law, it should stay in state court.

Strach argued that there is going to be a subset of ineligible voters who shouldn’t have been able to register, who are now going to be able to vote.

The Republican National Committee and state Republican party claim the state board of elections allowed more than 225,000 people, including potentially non-citizens, to register to vote by processing and accepting thousands of voter registration forms that didn’t have required identification information — the voter’s driver’s license number or the last four of their social security number — because they were not marked as required fields on the application form.

The state board of elections say that they can’t purge the voter rolls because the National Voter Registration Act of 1993 prevents systematic removal of ineligible voters within 90 days of an election.

“We’re not asking anybody to remove anybody, but what we’re saying is under state law, these people were never properly registered to begin with, and therefore they can be asked to provide information and vote provisionally to make sure that they are properly registered. So we’re not purging anybody,” said Strach.

According to Strach, because these voters did not have their citizenship checked before being registered, they were never properly registered and are not eligible voters. The 90-day deadline by the National Voter Registration Act doesn’t apply because they aren’t qualified voters, he said.

The form that plaintiffs are suing over, the state board said in their brief, was used for nearly two decades before a complaint was raised. And all registered voters are required to provide photo ID or fill out an exemption form when they vote, which would prevent ineligible voters from casting a ballot.

That isn’t sufficient to prevent voter fraud, Strach said, because not all accepted IDs — such as student IDs — are equivalent to a driver’s license or the last four of a social security number.

U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, floated concerns that forcing voters who followed all the steps to register to vote to cast provisional ballots would have a chilling effect on voting.

Seth Waxman, representing the Democratic National Committee, called the suit a mass removal of people’s eligibility to vote.

“This is a case arguing that 225,000 people should not be allowed to cast regular ballots even though, in order to do so, they have to produce both HAVA ID and photo ID,” he said. Voters at the polls are required to confirm their residency in addition to showing identification.

North Carolina has already begun voting for the general election, and will conclude early voting Nov. 2. The panel of judges were hyper aware of this in court, saying that they planned to get a decision out as quickly as possible.

The suit has bounced between state and federal courts. Originally filed in state superior court, it was removed to federal court, where a federal judge partially dismissed the suit’s first claim two weeks ago, and remanded the remaining claim back down to state court. Following an immediate appeal, the remand was stayed until Monday, for the Fourth Circuit to consider the appeal.

North Carolina Republicans have placed heavy emphasis on combating potential voter fraud as the presidential election approaches, including placing a referenda on the ballot, asking voters to decide on a constitutional amendment “to provide that only a citizen of the United States who is 18 years of age and otherwise possessing the qualifications for voting shall be entitled to vote at any election in this state.”

In North Carolina, the state constitution already requires voters to have U.S. citizenship and be over 18 years old to vote. Supporters of the amendment argue it is necessary to enshrine citizen voting in the constitution to combat non-citizen voting concerns, while opponents have called it a political move.

Republicans have filed multiple challenges against the board of elections leading up to November, in a swing state where many local races are incredibly close. Over the past few months, they have sued over absentee ballot counting, digital identification as voter ID, and successfully won a lawsuit removing Robert F. Kennedy Jr. from ballots state-wide.

Representatives for the state board of elections have repeatedly said that they have total confidence in the security of the elections.

Chief U.S. Circuit Judge Albert Diaz, a Barack Obama appointee, and U.S. Circuit Judge Nicole Berner, a Joe Biden appointee, joined the panel.

A representative for the state Department of Justice declined to comment on the proceedings, and Strach and Waxman did not respond to a request for comment.

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