Fear not the smoke machine. Wave of NC election lawsuits may be deception rather than threat.
Five lawsuits have been filed against the North Carolina State Board of Elections in the past month alleging voter roll and absentee ballot counting irregularities.
Many, echoed by national political heavyweights like former president Donald Trump, fear that election flaws allow noncitizens to vote or register to vote in masse.
Where smoke is, fire is. NC State political science professor Steven Greene told Carolina Public Press that it may be a smoke machine.
He suggested Republicans are preparing “stolen election” allegations after the election through the lawsuits.
“It’s all about perception,” Greene remarked. It’s politics. The goal is to create doubt, so that if the election comes down to North Carolina… They can argue, ‘Well see, look, we had already raised these worries about immigrants voting and we had our lawsuits.’ It lays the political groundwork.”
The plaintiffs dispute ulterior motives.
One lawsuit plaintiff, United Sovereign Americans co-founder Marly Hornick, said, “On our part, it’s not some kind of conspiracy to file them at this time.” “We must file them, and this was when they left.”
In about a week, elections authorities will deliver absentee voters their initial ballots, leaving little time to resolve lawsuits before the election. Even without a resolution, the lawsuits may alter voter view of the election.
Are noncitizens voting?
While the U.S. Constitution requires citizens to vote in federal elections and every state bars noncitizens from voting in statewide elections, high-profile politicians and political parties have raised concerns about large numbers of noncitizens voting.
Besides lawsuits, these efforts have caused several states to put constitutional amendments on the ballot stating that only citizens can vote in state elections. Example: North Carolina.
Nationally, congressional Republicans tried to link the passage of a funding bill to a bill banning unauthorized immigrants from voting. Noncitizens can only vote in local or school board elections in a few cities.
Former president Trump falsely claimed in the latest presidential debate that his political opponents wanted to let undocumented immigrants in to persuade them to vote, bolstering the movement.
The catch? Nobody has shown that noncitizens vote in considerable numbers.
The State Board investigated only eight noncitizen voting or registering to vote incidents in North Carolina between 2015 and 2022.
The Brennan Center for Justice studied 42 jurisdictions during the 2016 election, including eight of the 10 jurisdictions with the most noncitizen residents.
Out of 23.5 million votes, 30 alleged noncitizen voting occurrences were investigated.
The libertarian Cato Institute similarly disputes reports of large-scale illicit voting by noncitizens.
The Heritage Foundation claimed that many noncitizens in Georgia were registered to vote, but the New York Times disproved this. The Heritage Foundation detected 24 noncitizen votes between 2003 and 2023.
“There’s just zero evidence for any kind of organized, widespread voter registration fraud, especially by illegal immigrants,” Greene said. “So groups making claims like this lose credibility.”
Why do political groups keep suing over non-citizens voting?
Greene said it’s part of the Republican Party’s “demonization of immigrants” plan and a tactic to link immigration and elections.
The Civitas Center for Public Integrity’s Andy Jackson said high election lawsuit volumes are nothing new and “strong disagreements about the rules and the process” of voting persist in North Carolina.
“It’s a sad fact of life in North Carolina that we’ll have these, mostly led by the (Democrat and Republican) parties because they believe lawsuits will change the rules to benefit them,” Jackson said.
“But there are others who believe there are systemic issues, and if they can’t get a resolution from the State Board or General Assembly, they’ll go to court.”
Democracy Katelin Kaiser, North Carolina Policy Director, termed the lawsuits “a rhetorical ploy to sow distrust, as well as really hurt folks who are just trying to get by and live and have beautiful, thriving families.”
If so, it’s working for some voters.
YouGov and Catawba College surveyed 1,000 North Carolinians in August and found that 37% were not confident that non-citizens could vote.
Republican skepticism reached 59%, while Democratic distrust stayed at 10%. About 39% of Independents surveyed lacked confidence.
What do the lawsuits allege?
North Carolina Republican Party v. North Carolina State Board of Elections
The first action, filed Aug. 22, claims the State Board violated a new legislation mandating it to remove noncitizens from voter records.
North Carolina’s new elections law took effect July 1. Court authorities must notify the State Board of Elections of anyone called for jury duty who claims to be a non-citizen.
The board must verify citizenship and voter registration for the listed persons. If the board finds noncitizens who are registered voters, it must notify the county boards of elections, which delete their names from the voter lists after 30 days.
Statute says the process can take 90 days if the voter does not oppose to removal.
In court filings, the North Carolina Republican Party and Republican National Committee claim the State Board of Elections has not established its legal compliance.
The state board and North Carolina Republican Party did not comment on any of the lawsuits in this report. The State Board hasn’t filed court responses either.
North Carolina Asian Americans Together and El Pueblo, which help naturalized citizens register to vote, joined the lawsuits as defendants.
The groups contend in court that the state board did not have time to comply with the legislation before the federal deadline for “systematically” eliminating illegal voters 90 days before an election. August 7 this year.
Election officials have 37 days to remove candidates after the new state law took effect July 1.
“More than 130,000 North Carolinians have become naturalized citizens since 2013, and they face a particularly acute threat from Plaintiffs’ effort to force a rushed removal of all voters who self-identified as noncitizens at some point in time,” the groups’ motion to intervene read
Jackson said the lawsuit hinges on whether removing the handful of noncitizens implicated so far is “systematic” removal, which is prohibited at this point in the election cycle, or individualized removal, which includes removing voters who have died or been convicted of a felony.
Jackson said the state board is approaching this as a database issue rather than an individualized evidence issue, therefore they’ve asked those folks to voluntarily withdraw themselves.
Republican National Committee v. North Carolina State Board of Elections
The same parties filed a second lawsuit a day later alleging that the State Board is breaking state law by not validating the identity of 225,000 registered voters who utilized an older voter registration form.
An individual complained about North Carolina’s voter registration form in October 2023 because it did not specify that registrants had to provide their driver’s license number or the last four digits of their social security number, if they had one, in accordance with the federal Help America Vote Act.
In December, the State Board approved the form update but did not identify or contact the 225,000 registered voters who purportedly lacked HAVA documentation.
The State Board says those who register this manner must show photo ID while voting in person or absentee. Republicans argue more is needed.
Jackson said it would be the same if voters could just use their driver’s license or Social Security number, but “we have a kind of expansive list of possible IDs,” including a U.S. passport, approved student and government-employee IDs, and military or veterans picture IDs.
Federal law enables persons without driver’s licenses or Social Security numbers to check a box on voter registration forms, but Jackson thinks 225,000 would fulfill that criterion. He doubts a judge would withdraw registration before the election.
“We are inside the 90-day window that federal judges have said, ‘Well, you’re not going to do any large-scale changes in the voter rolls,’” he added. “I believe the plaintiffs are aware of this, as they are going through the motions.”
The Republican National Committee and North Carolina Republican Party in the complaint ask the court to order registered voters without HAVA documents to cast a provisional ballot if they cannot be removed from the voter lists.
United Sovereign Americans v. North Carolina State Board of Elections
Conservative legal group United Sovereign Americans filed its latest action in North Carolina on Aug. 28 “amidst fears that noncitizens will impact the electoral outcome of 2024 races nationwide,” according to a press release.
The group has sued Pennsylvania, Michigan, Ohio, Maryland, Florida, Texas, Montana, and Massachusetts election officials. A federal judge dismissed the Maryland claim, but it was appealed.
If state voter rolls are not fixed, systemic issues from the 2022 elections will persist in 2024, according to their lawsuits.
USA co-founder Marly Hornick said her group identified “facially invalid” voter registrations on North Carolina’s statewide voter registration list, including instances where the same person was registered twice based on their name and birthday.
Hornick said they do not have Social Security numbers, driver’s licenses, or other identifying information that “would absolutely confirm, in an ironclad manner” that two North Carolina voters with the same name and birthdate who live in different cities are “definitely the same person.”
While the State Board cannot establish any 2022 election results were unlawful, she added they cannot prove the right outcome.
“We must investigate and make sure no adversary to America has got their thumb on the scale,” she stated. We can’t be foolish and say they don’t until we’re sure.
USA cited several other concerns in its court pleadings, including incomplete addresses and registration dates on weekends and state holidays. In the 2022 election, 15% of voter registrations were allegedly incorrect.
In response to nationwide voter roll purge litigation, the U.S. Department of Justice issued guidelines to elections officials on Sept. 9.
Voter roll maintenance that “compares voter files to outdated or inaccurate records or databases, takes action that erroneously affects a particular class of voters (such as newly naturalized citizens), or matches records based solely on first name, last name, and date of birth” may violate the National Voting Rights Act.
Wassenberg v. North Carolina State Board of Elections
On Sept. 3, the same parties and voter Virginia Wassenberg sued the State Board over absentee ballot counting.
Absentee voters must return their marked ballots in a container-return envelope. The envelopes must contain voter and witness signatures and photocopies of photo ID or exception forms. To safeguard voter privacy, container-return envelopes are enclosed in a bigger, outermost envelope.
County boards of election might accept absentee ballots if the outermost envelope was sealed but the inner container-return envelope was not, according to the State Board.
The Republican National Committee, North Carolina Republican Party, and Wassenberg claimed this violated North Carolina law, which requires voters to “securely seal” the container-return envelope. They requested that the State Board reverse its guidance and count ballots with both envelopes sealed.
Republican National Committee v. State Board
Lawsuits are continuing.
Republican National Committee and North Carolina Republican Party sued the State Board again on Sept. 12 for approving a digital student ID as a voter ID, citing state law violations.
They petitioned the court to ban the UNC mobile One Card for the election.
Is perception reality? The impact of election lawsuits
North Carolina’s 2020 Supreme Court Chief Justice election was decided by 401 votes. Republican Paul Newby beat Democrat Cheri Beasley by 0.001%.
Jackson said voters may not have had driver’s licenses or Social Security numbers on file, so they’re still complaining about the results.
Jackson said recent cases, proven or not, “could lead folks to question the results, certainly.”
Election night results are unofficial. Each county canvasses 10 days after the election to determine the results. Between Election Day until the canvass, election officials audit and verify votes.
“It seems that these lawsuits may be teeing up arguments for candidates to use later as to why they think those carefully tabulated results are not accurate, and if they succeed, lawfully registered voters’ votes from both parties will be thrown out,” Common Cause North Carolina Policy Director Ann Webb said.
Once validated at the post-election canvass, results are final. No votes can be modified or eliminated afterward. But election perceptions can change.
Webb questioned recent litigation timing.
She said most are based on public record information, which “suggests that the choice to file them this late in the process is not really about the substance of these lawsuits, but is actually about the strategy to cause disruption in the election process, to foment uncertainty about our elections in North Carolina and to support potential efforts to undermine the outcome of the elections.”
USA co-founder Hornick disagreed. As volunteers, USA members work outside of work hours to complete tasks, she noted.
«This is how long it takes», she said.
Western Carolina University political science professor Christopher Cooper thinks both are possible.
He said, “Lawsuits should not be understood in a vacuum.” “Both the legal challenge and communicating about it to voters are involved. If it was solely about the law, they wouldn’t have released a press release announcing the complaint.”
The lawsuits may not be settled before the election, but Kaiser said they may divide, enrage, or motivate voters.
“Others may say it’s clear that my voice is not needed in this election,” she remarked.
Kaiser noted that newly naturalized citizens may be confused and discouraged from voting.
Cooper anticipates the litigation will further erode election faith.
However, Jackson said the lawsuits highlight concerns the state board should address to gain trust.
The aim is that this procedure motivates the state board to perform its job, he said. “That may cause some short-term questioning of results, but hopefully this will lead to longer-term greater system trust.”
Despite the ruling, Cooper suggested North Carolina may pass legislation similar to the cases next year. The General Assembly could specify voter list upkeep or remove bureaucratic discretion from the State Board of Elections.
“There’s a lot of ways to get a policy outcome,” Cooper added.
You receive it through the courts, legislation, and legislative process. I expect more bills will be introduced to achieve this goal.”