This report has been updated.
A section of the voter purge case Republicans wanted moved back to North Carolina state courts must remain in federal court, the Fourth Circuit Court of Appeals ruled Tuesday.
The decision was a victory for the state Board of Elections, which had appealed a federal judge’s order to send part of the voter purge case back to state court.
The Republican National Committee is seeking a court-ordered purge of 225,000 voters.
When it filed the lawsuit in late August, the RNC asked the court to require the state Board of Elections to come up with a plan to remove those voters from the rolls by Sept. 6, even though federal law prohibits systematic removal of voters within 90 days of an election.
Alternatively, the RNC wants to force those voters to submit provisional ballots. Provisional ballots require voters to go to their board of elections office after casting their ballots to verify their identities.
The state Board of Elections won a dismissal of part of the RNC lawsuit earlier this month. But the same federal judge sent part of the case back to state court.
The state Board argued that federal laws are at the heart of the RNC lawsuit, so the case should be decided in federal court. The Appeals Court held a hearing Monday.
The judges agreed with the state election board’s position.
“Plaintiffs’ Count Two claim may come cloaked in state constitutional garb, but it raises only federal statutory questions,” the court order says. The order sends the case back to federal district court.
The court did not weigh in on whether Republicans’ request would violate the federal law and its 90 day “quiet period.” But the fact that the federal law could prevent Republicans from winning the result they’re seeking “only serves to bolster the conclusion that Plaintiffs’ claims necessarily raise an issue of federal law.”
Civil rights groups lauded the court’s ruling. In a joint statement, the Southern Coalition for Social Justice, the Lawyers’ Committee for Civil Rights Under Law, the Mayer Brown law firm, the North Carolina State Conference of the NAACP, along with individuals Sailor Jones and Bertha Leverette said, “The court rightly rejected this dangerous attempt by plaintiffs to sidestep federal prohibitions against baseless voter purges on the eve of an election. This decision casts serious doubts on plaintiffs’ remaining claim and we look forward to the trial court putting this issue to bed so North Carolina elections can be decided as they should be – by the voters themselves.”
The Republican National Committee and the state Board of Elections were back in court Monday for a hearing on the GOP attempt to purge 225,000 voters from the rolls.
Republicans are suing over what they say are improper voter registration forms.
A federal judge in Wilmington threw out one of the Republicans’ claims earlier this month. He decided to send a second claim alleging a state constitutional violation back to state court.
Republicans claim 225,000 people are not properly registered because their forms did not require a driver’s license or partial Social Security number. Republicans claimed that failure to remove those voters interfered with the right to vote by potentially diluting legitimate votes.
There is no allegation that there’s a single person in the pool of 225,000 who is ineligible to vote, said Seth Waxman, a lawyer for the Democratic National Committee.
The state Board of Elections and the Democratic National Committee are appealing the part of the district court order sending the second claim back to state court. The Fourth Circuit Court of Appeals held a hearing in the case Monday.
Republicans cloaked a federal claim over the Help America Vote Act in a state claim, Deputy Attorney General Sarah Boyce, representing the state Board of Elections, told the judges. The claim should remain in federal court because the key question is whether federal law has been violated, she said.
Federal law prohibits removing voters from the rolls so close to Election Day, and voting is well underway in North Carolina. More than 2.8 million people had voted as of Monday morning.
Phil Strach, the lawyer representing the RNC, at first denied that they had asked for a voter purge until Judge Nicole Berner read part of the complaint aloud.
The RNC originally asked the court to order the state Board to have a plan by Sept. 6 to remove the voters. Alternatively, they wanted the court to require those voters to submit provisional ballots.
Strach told the judges that removing people from the voter rolls now would not violate the National Voter Registration Act because they were not properly registered to begin with.
If it’s not feasible to remove voters, they should be required to cast provisional ballots, then present their IDs at their local elections offices before their ballots are counted, Strach said.
Waxman told the judges that the law anticipates some people may register without the identifying numbers and already requires they show required documents before they vote. Additionally, the state now requires photo voter ID, he said.
“The notion that you can be required to make a provisional ballot is utterly wrong as a matter for federal law, state law, and common sense,” Waxman said.
The lawyers spent considerable time debating whether the Republican National Committee had standing to have the case in federal court.
With Election Day a week away and people already voting, what Republicans are asking for is not feasible and is illegal under federal law, said Hilary Klein, senior counsel for voting rights at the Southern Coalition for Social Justice, which filed an amicus brief in the case on behalf of the North Carolina State Conference of the NAACP and two individual voters.
“This is all posturing to cast doubt on an election that is occurring right now,” Klein said.
