Wake Forest Law Review
17Sep

Election Lawsuits: Voter Registration Data at the Heart of Political Filings

Categories: Current Issues Blog
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Sydney Basden

The 2024 Presidential election is mere weeks away, and North Carolinians on both sides of the political aisle are being reminded to vote.[1] With North Carolina expected to be a key swing state in the Electoral College,[2] the political advertisements seem to be never-ending, via television commercials, internet ads, phone calls, texts, and physical mail. However, some voting rights activists are worried that previously registered, eligible voters may be in for a surprise on Election Day: they are no longer registered to vote due to so-called “voter purges.”[3]

State Election Officials Face Lawsuit

North Carolina has long enshrined the right of the people to vote, as set out in Article VI of the state constitution,[4] but the maintenance – or alleged lack thereof – of voter registration rolls has been called into question in a recent lawsuit.[5] The Republican National Committee (RNC) and North Carolina Republican Party (NCGOP) claim that the North Carolina State Board of Elections (NCSBE) has violated the Help America Vote Act (HAVA) by not requiring certain forms of identification before processing approximately 225,000 voter registration forms.[6] HAVA requires the state to have either an applicant’s driver’s license number or the last four digits of their social security number before processing the registration, barring specific circumstances.[7] However, the complaint alleges prior NCSBE registration forms did not designate these fields as “required,” and the state allegedly still processed the applications, potentially without a required form of identification.[8] The RNC and NCGOP are requesting the court order the state to either remove all ineligible registrations before the November election or require those registrants to vote via provisional ballot until their identification is provided.[9]

This lawsuit arose out of a 2023 complaint by North Carolina voter Carol Snow to the NCSBE, who alleged that the state’s voter registration form did not adhere to HAVA because it did not require a driver’s license or social security number.[10] The NCSBE agreed with Snow and voted unanimously to make changes in a board meeting in late 2023.[11] However, the bipartisan NCSBE unanimously rejected her request to go back and contact the approximately 225,000 voters to confirm their eligibility.[12] The plaintiffs filed their complaint in part due to this board decision.[13]

Voter registration and fraud have been a hot-button issue in American politics for years,[14] and the issue was only exacerbated further in the 2020 election.[15] The RNC and NCGOP address the politics of the issue in their lawsuit: “Not only will Plaintiffs’ members be disenfranchised [if the court does not rule in Plaintiffs’ favor], but Plaintiffs’ mission of advocating for Republican voters, causes, and candidates will be impeded by contrary votes of potentially ineligible voters.”[16]

Attempts at Intervention

On the other side of the hypothetical political aisle, however, both the Democratic National Committee (DNC) and the North Carolina State Conference of the NAACP (NAACP) have filed motions to intervene in the lawsuit as defendants.

The NAACP’s request for intervention includes an intervention by a North Carolina resident, Jackson Jones, who is reportedly one of the 225,000 voters whose registrations are being questioned.[17] According to the NAACP’s motion, Jones has voted in North Carolina for more than three decades and recently re-registered to vote after moving.[18] Although he has provided his driver’s license and social security number to election officials in the past, he is allegedly included on the list of potentially ineligible voters.[19] Additionally, the NAACP claims that the RNC and NCGOP lack evidentiary support for their allegations that the 225,000 voters are ineligible.[20] It also says the NCSBE’s registration form not requiring this identifying information “cannot and does not justify purging individual voters, who would find themselves kicked off the rolls through no fault of their own.”[21] Furthermore, the NAACP alleges that Black voters are disproportionality more likely than white voters to appear on the list and have their right to vote disenfranchised.[22]

The DNC also seeks to intervene in the lawsuit, claiming the RNC and NCGOP’s requests are prohibited by the National Voter Registration Act (NVRA).[23] A portion of the NVRA requires states to complete the systematic removal of ineligible voters “not later than 90 days prior” to an election.[24] The DNC seeks to intervene because it wants to ensure its voting members, and other voters who support Democratic candidates, can vote in the upcoming election.[25]

In a direct response to the political allegations made in the RNC and NCGOP’s complaint, the DNC responded: “The RNC alleges that disenfranchising 225,000 North Carolina voters will give it a competitive advantage in this year’s general election. The DNC has a mirror-image interest in ensuring that eligible voters can cast votes for Democratic candidates.”[26]

What Happens Now

Preventing voter fraud via voter registration maintenance has long been the topic of many state statutes and lawsuits,[27] and several other state boards of election are facing voter roll lawsuits from the RNC and state Republican Party organizations.[28] This issue is deeply political and partisan. As an example, both the RNC and DNC’s filings in this North Carolina lawsuit used politically charged language, decrying the other party’s claims as partisan while including partisan language of their own.

However, an Associated Press report completed in late 2021 found that “suspected fraud is both generally detected and exceptionally rare” after analyzing allegations of voter fraud in six battleground states in the 2020 election.[29] While the report did not specifically look at North Carolina ballots, it echoed investigations and court cases across the country: voter fraud is not a widespread issue.[30]

Judges will play a crucial role in deciding issues of voter registration and potential disenfranchisement, and because the election is merely weeks away, judges will need to decide these cases quickly.[31] It is the role of the judiciary to uphold the United States Constitution and laws, as well as the Constitution and laws of the state of North Carolina.[32] However, judges in North Carolina are elected by partisan ballot, and some judicial seats are hotly contested in this election.[33] Depending on the way this case is decided at the Superior Court level, any appeals to the state Court of Appeals or State Supreme Court could get deeply political. There is the potential for partisanship and election polling to sway a judge’s opinion. Even if judges uphold their oath of office and do not consider politics when ruling, it is election season, so the losing side will almost certainly cry foul.

[1] For information on North Carolina voter registration and deadlines, see Upcoming Election, N.C. State Bd. of Elections, https://www.ncsbe.gov/voting/upcoming-election (last visited Sept. 14, 2024).

[2] Elliot Davis Jr., The 2024 Swing States: Why North Carolina Could Sway the Presidential Election, U.S. News (Sept. 12, 2024, 5:42 PM), https://www.usnews.com/news/elections/articles/the-2024-swing-states-north-carolina-could-sway-the-2024-election.

[3] Voter Purges, Brennan Ctr. for Just., https://www.brennancenter.org/issues/ensure-every-american-can-vote/vote-suppression/voter-purges (last visited Sept. 13, 2024).

[4] N.C. Const. art. VI.

[5] Complaint at 2, Republican Nat’l Comm. v. N.C. State Bd. of Elections, No. 24CV026995-910 (N.C. Sup. Ct. filed Aug. 30, 2024).

[6] Id.

[7] Help America Vote Act § 303, 52 U.S.C. § 21083(a)(5).

[8] Complaint, supra note 4, at 9.

[9] Id. at 19–20.

[10] See N.C. HAVA Administrative Complaint Form filed by Carol L. Snow (Oct. 6, 2023), https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/2023-11-28/Snow%20Amended%20HAVA%20Complaint.pdf.

[11] Theresa Opeka, NCSBE Certifies Elections, Changes Absentee Ballot Distribution Date, The Carolina J. (Nov. 30, 2023), https://www.carolinajournal.com/ncsbe-certifies-elections-changes-absentee-ballot-distribution-date/.

[12] Will Duran, In Bipartisan Vote, NC Elections Board Shoots Down ‘Audit Force’ Allegations of Election Violations, WRAL (Apr. 11, 2024, 11:28 PM), https://www.wral.com/story/in-bipartisan-vote-nc-elections-board-shoots-down-audit-force-allegations-of-election-violations/21375951/.

[13] Complaint, supra note 4, at 14.

[14] Dayna L. Cunningham, Who Are to Be the Electors? A Reflection on the History of Voter Registration in the United States, 9 Yale L. & Pol’y Rev. 370, 373 (1991).

[15] Jason Marisam, Fraudulent Vote Dilution, 2 Fordham L. Voting Rts. & Democracy F. 197, 198 (2024).

[16] Complaint, supra note 4, at 16.

[17] Motion to Intervene as Defendants and to Expedite Consideration of Same at 6, Republican Nat’l Comm. v. N.C. State Bd. of Elections, No. 24CV026995-910 (N.C. Sup. Ct. filed Sept. 4, 2024) (filing made by North Carolina State Conference of the NAACP and Jackson Sailor Jones).

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 2.

[22] Id. at 5 (“Upon information and belief, Black voters comprise at least 22 percent of these registrants on the list who have demographic information included in their registration file, and Black voters are disproportionately more likely than white voters to appear on the list.”).

[23] Motion to Intervene by the Democratic National Committee at 2, Republican Nat’l Comm. v. N.C. State Bd. of Elections, No. 24CV026995-910 (N.C. Sup. Ct. filed Aug. 30, 2024).

[24] National Voter Registration Act § 8, 52 U.S.C. § 20507(c)(2)(A).

[25] Id. at 3.

[26] Id. at 4.

[27] Michael Morse, Democracy’s Bureaucracy: The Complicated Case of Voter Registration Lists, 103 B.U. L. Rev. 2123, 2177 (2023).

[28] See, e.g., Complaint, Mussi v. Fontes, No. CV-24-1310-PHX-DWL (D. Ariz. filed May 31, 2024); Complaint, Republican National Committee v.  Benson, No. 1:24-cv-00262 (W.D. Mich. filed Mar. 13, 2024); Complaint, Dagusen v. Aguilar (Nev. D. Ct. filed Sept. 11, 2024), https://prod-static.gop.com/media/documents/Sept._2024_Complaint__1_1726087424.pdf. As of Sept. 13, 2024, these cases had not been decided and were still pending in their respective courts.

[29] Christina A. Cassidy, Far Too Little Voter Fraud to Tip Election to Trump, AP Finds, The Associated Press (Dec. 14, 2021, 5:56 PM), https://apnews.com/article/voter-fraud-election-2020-joe-biden-donald-trump-7fcb6f134e528fee8237c7601db3328f.

[30] Id.

[31] In an effort to help courts and lawmakers handle the recent onslaught of litigation involving voter registration and voter rolls, the United States Department of Justice recently released additional guidance on the provision of the National Voter Registration Act. See Civ. Rts. Div., U.S. Dep’t of Just. Voter Registration List Maintenance:  Guidance under Section 8 of the National Voter Registration Act, 52 U.S.C. § 20507 (2024), https://www.justice.gov/crt/media/1366561/dl.

[32] About North Carolina Courts, N.C. Jud. Branch, https://www.nccourts.gov/about (last visited Sept. 13, 2024).

[33] Judicial Voter Guide: 2024 General Election, N.C. State Bd. of Elections, https://www.ncsbe.gov/voting/upcoming-election/judicial-voter-guide-2024-general-election (last visited Sept. 13, 2024).

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2Oct

Judges of the Fourth Circuit – Hon. J. Dickson Phillips, Jr.

Categories: 4th Cir. Blog Judges of the 4th Cir.
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By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

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29Sep

Claim Alleging Unconstitutional Redistricting for Wake County School Board Elections was Improperly Dismissed

Categories: 4th Cir. Blog
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By Elizabeth DeFrance

On May 27, 2015, the Fourth Circuit issued a published opinion in the civil case Wright v. North Carolina. The Court considered whether the District Court for the Eastern District of North Carolina erred in ruling Senate President Pro Tem Philip Berger and General Assembly Speaker Thom Tillis could not be properly enjoined to a suit claiming the redrawing of Wake County Board of Education electoral districts violated the “one person, one vote” guarantees of the Fourteenth Amendment and the North Carolina Constitution. The Court also considered whether the district court erred in granting the defendants’ Federal Rules of Civil Procedure 12(b)(6) motion to dismiss when the plaintiffs’ complaint alleged “facts sounding in arbitrariness” without explicitly stating the element.

After Elections Resulted in a Democratic Majority on the Board of Education, the Republican-led General Assembly Passed a Bill to Redraw Electoral Districts

The Wake County Board of Education redrew electoral districts after the 2010 census, as required by the General Assembly. The resulting districts were geographically compact and had a maximum population deviation of 1.66%. The first election under the new plan resulted in a Democratic majority on the Board of Education. In spite of objections from the majority of the School Board, the Republican-led General Assembly passed Session Law 2013-110 (“Session Law”), redrawing the electoral districts. The changes resulted in seven less geographically compact districts and two “super districts.” One super district is an outer ring of rural areas and the other a central urban area. The maximum population deviation between the super districts is 9.8%. The Session Law also prohibits the Board of Education from making any changes to its election procedures until 2021.

Calla Wright along with twelve other individual Wake County citizens and two citizen associations brought a claim against the State of North Carolina and the Wake County Board of Elections alleging the redistricting violates the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the North Carolina Constitution because the votes of Plaintiffs living in overpopulated districts weigh less than the votes of people living in underpopulated districts.

Defendants filed a 12(b)(6) motion to dismiss. Plaintiffs moved to amend to substitute Governor Pat McCrory, Senate President Pro Tem Philip Berger, and General Assembly Speaker Thom Tillis for the State of North Carolina. The district court granted Defendants’ motion to dismiss and denied Plaintiffs’ motion to amend.

State Officials May be Enjoined for the Use of State Power in Violation of the Constitution Only if they Have a Connection with Enforcement of the Act

The Court noted that although the Eleventh Amendment provides some immunity for state officials from private suits brought in federal court, an official may properly be enjoined if he has “some connection with the enforcement of an unconstitutional act.” The North Carolina Constitution does not provide the General Assembly with power to enforce laws, and both Berger and Tillis are members of the General Assembly. Thus, because neither Proposed Defendant has authority to enforce the redistricting plan, the Court held that they could not be properly enjoined and Plaintiffs’ motion to amend was properly denied. The Plaintiffs, in their reply brief to the Court, had conceded that McCrory was not a proper defendant.

To Survive Summary Judgment Where the Population Deviation is Below 10%, a Plaintiff Must Produce Evidence that the Apportionment was Arbitrary or Discriminatory

On the issue of whether summary judgment was properly granted for the defendants, the Court looked to the “one person, one vote” principle inherent in the Equal Protection Clause. When constructing districts, governments must “make an honest and good faith effort” to make the population in each as close to equal as is practicable. When a plaintiff brings a claim related to a redistricting plan with a population deviation below 10%, he has the burden to provide additional evidence showing the redistricting process had a “taint of arbitrariness or discrimination.”

Plaintiffs’ Factual Allegations “Sounding in Arbitrariness” Were Sufficient to Provide Defendants Fair Notice of Their Claims

The Court noted that Plaintiffs’ complaint alleged the redistricting discriminated between urban and rule voters because the rural districts were “unjustifiably underpopulated” and the urban districts were “overpopulated without justification.” The Plaintiffs also pointed out that the Board of Education was opposed to the Session Law, and that no African-American or Democratic members of the General Assembly voted for it. The Court reasoned that this suggested the law was “neither racially or otherwise neutral.”

The Court reasoned that although Plaintiffs did not expressly plead that the Session Law was arbitrary or discriminatory, their factual allegations sounded in arbitrariness and provided defendants fair notice of their claims.

The Court also rejected the district court’s justification for dismissal based on its view that plaintiffs had a political gerrymandering claim rather than a “one person, one vote” claim. The Court concluded that Plaintiffs clearly pled an equal protection claim.

Plaintiffs’ Federal Constitution and North Carolina Constitution Equal Protection Claims Were Improperly Dismissed

The Court held that because Plaintiffs’ complaint clearly pled facts supporting arbitrariness and discrimination, their Federal Constitution equal protection claim was improperly dismissed under 12(b)(6). For the same reasons, Plaintiffs’ North Carolina equal protection claim was also improperly dismissed. Additionally, because the Proposed Defendants did not have authority to enforce the Session Law, they could not be enjoined and Plaintiffs’ request to amend was properly denied. Accordingly, the case was affirmed in part, reversed in part, and remanded.

Circuit Judge Diana Gribbon Motz dissented. She reasoned that the Plaintiffs’ pleadings did not overcome the presumption of constitutionality for a redistricting plan with a maximum population deviation under 10% because the complaint did not use the words “arbitrariness” or “invidious discrimination” and failed to allege facts supporting such claims.

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