The fate of student voting in North Carolina may come down to how courts define one word: “card.” It’s one of several elections lawsuits before various North Carolina courts as litigation filed before Election Day 2024 continues into 2025.
In the run-up to the 2024 general election, at least half a dozen lawsuits were filed against the State Board of Elections over various elections and voting issues. In most cases, courts issued temporary, preliminary rulings ahead of the election.
Now that all votes have been cast and counted, the courts may resume legal proceedings. Where does each lawsuit stand after the election? How long might they take to resolve? What impact will court rulings have on North Carolina voters? Will litigation continue at all or die a quiet death?
Carolina Public Press consulted experts to find out.
Two of the ongoing election lawsuits have become the foundation of separate election protests filed by Court of Appeals Judge Jefferson Griffin in his plea to remove some ballots from the 2024 electoral count in the close race for a North Carolina Supreme Court seat.
Court decisions in those cases could have an immediate impact on Griffin’s race as well as some close legislative contests.
Now that the 2024 election has passed, the remaining elections lawsuits are more focused on the future.
“I know some people think … we’re just trying to get stuff out there before the election as kind of a precursor to challenging ballots,’” said Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation.
“And there may have been an element of that, but there’s still underlying issues that are unresolved. So I expect that at least some of these lawsuits are still going to go forward until a judge makes a ruling one way or another.”
About a month before Election Day, after the first batch of absentee ballots were sent to voters, the state Court of Appeals ruled that digital student IDs were not acceptable forms of voter identification.
In August, the State Board approved UNC-Chapel Hill’s digital student ID as a valid form of voter identification – a first.
Republicans quickly objected, arguing that North Carolina statute did not allow for digital identification cards. Instead, they said that explicit legislative action would be required to permit them.
The State Board replied that the law does not define “card,” and so identification cards do not necessarily have to be tangible as long as they meet other requirements.
While a lower court sided with the State Board, the appellate court reversed that decision in favor of the Republican plaintiffs. UNC’s mobile ID was not allowed for the 2024 general election – and neither was any other digital student identification.
However, that was a temporary decision enforced for the 2024 election. The broader case may continue.
While turnout rates appeared high at UNC this election cycle, voter registration numbers faced a steep decline from 2016, according to Gunther Peck, an associate professor and director of the Student Voting Rights Lab at Duke University.
This year, the turnout rate among 18 to 25 year olds in UNC precincts was about 83%. However, only 7,600 in that demographic were registered to vote as opposed to 13,000 in the same precincts during 2016.
“That’s a big drop,” Peck said. “We don’t know yet, but our hypothesis is that that is a reflection of UNC students not having time or knowledge of where to go get the physical ID.”
UNC students could set up an appointment to get a physical card on campus, but only had a few weeks to do so. In comparison, Duke University pre-printed physical student IDs and made them available near the campus’ early-voting site. Duke also focused heavily on messaging about provisional balloting before the election. Peck attributes this to a record high turnout.
Duke is the exception that proves the rule, he said. Many students do not have North Carolina driver’s licenses, and their digital student ID is their only proof of address. Since proof of address is required for same-day registration, Peck said the digital ID ban might be preventing students from being able to register to vote. Most students don’t have a physical student ID.
“When you have a split ID system with digital (ID cards) counting for most things, and the physical card really only being useful for voting, it creates an extra hurdle for the students,” Peck said.
Jackson said he could see universities return to issuing more physical student IDs to get around the issue.
The Student Voting Rights Lab is gathering more evidence this spring. The group hopes to renew the lawsuit after more data analysis on voter ID’s impact on student voting in the 2024 election, Peck said.
The next step would be for the State Board or another defendant to file a notice of appeal in the Court of Appeals to ask for a hearing with a full briefing and arguments before the court, Fair Elections Center counsel Beauregard Patterson said. From there, the case could be appealed to the state Supreme Court.
Patterson sees a high likelihood that the case will continue.
“The use of digital IDs as a form of voter ID as an issue isn’t going to go away anytime soon,” he said. “I know that in my work, numerous states are being confronted with the question of what to do with digital IDs and whether or not they are an acceptable form of voter ID as digital IDs get rolled out in other spaces.”
Patterson estimated that thousands of North Carolina students are impacted by the ban. By not allowing the use of digital IDs, it not only suppresses the college vote, but bars out-of-state students from a simple pathway to get more invested in their new community and potentially stick around after graduation.
It’s unclear when this case could end. If a notice of appeal is filed, Patterson guessed that it would likely be resolved by either the Court of Appeals or the state Supreme Court within a year.
Ballot selfies for all?
This election, only one voter in the entire state was allowed to take a ballot selfie — Susan Hogarth, a plaintiff in another lawsuit against the State Board of Elections.
Before the election, Hogarth v. Bell resulted in a special deal between Hogarth and Wake County District Attorney Lorrin Freeman: Freeman would allow Hogarth to take photos of herself and her voted ballot in the voting booth, in violation of state law, if only she was allowed to do so.
Hogarth did so, posting her selfie on social media.
Now, the case continues in federal district court. The next step is for the court to schedule a hearing to decide whether the case should be heard or dismissed, and then rule on its merits.
Hogarth argues that banning ballot selfies is a violation of her free speech.
However, according to the State Board, there are security concerns with allowing ballot selfies and that Hogarth has other avenues to make political speech.
In other states like Michigan, Indiana and New Hampshire, courts have struck down bans on ballot selfies. Jeff Zeman, a staff attorney for the Foundation of Individual Rights and Expression, is helping Hogarth in the case and agrees with those courts.
“We use not only those cases, but also long-standing case law on the First Amendment and on political speech and on the limits of what the government can do to suppress speech, to try to convince the court that yes, Susan and all North Carolina voters have the right to take and share ballots,” Zeman said.
Court cases can last a long time, and Zeman is prepared to go through multiple elections while this case is ongoing.
The paper chase
While Gerry Cohen, an adjunct instructor at Duke Sanford School of Public Policy and Wake County Board of Elections member, checked absentee ballots coming into the Wake County Board of Elections, he kept an informal count on a notepad.
He scribbled down the error rate — more specifically, how often an absentee voter didn’t seal the inner envelope but sealed the outer envelope, put the photo ID photocopy in the wrong place or made another technical error.
In the beginning of the count, it was about a 3% error rate. By the last day, it was closer to 8%, Cohen said.
Absentee voting includes two envelopes: an inner envelope used to contain a ballot, and an outer envelope needed to put a photocopy of one’s ID or an exception form. Both should be sealed under state law, but State Board guidance allows county boards to count absentee ballots in which only the outer envelope is sealed.
Their guidance led to Wasserberg v. North Carolina State Board of Elections, filed in September. A Republican voter, the Republican National Committee and North Carolina Republican Party asked the court to take back their guidance and only count absentee ballots with both inner and outer envelopes sealed.
The case is now in federal district court. U.S. Attorney General Merrick Garland got involved; he argued that the materiality provision of the Civil Rights Act of 1964 prevents denying the right to vote because of a paperwork issue.
It may not matter. The case will almost certainly run past Jan. 20, 2025, when President-elect Donald Trump will be inaugurated. His attorney general will likely pull out of the case, Jackson said. The other defendants may continue.
No hearing has been set yet.
Cohen said the legislature could pass a law to specifically forbid elections staff from counting absentee votes with unsealed inner envelopes. He suspects that the lawsuit was filed for a partisan reason.
“If the courts want to determine that anyone who makes any sort of mistake, their vote doesn’t count, then, I mean, so be it,” he said. “But I don’t think it has any connection whatsoever to fraud. Maybe it has a connection to do with disqualifying ballots from a pool of Democratic voters.”
Jury duty and non-citizens
In July, the North Carolina legislature passed a law that would require county court clerks to record whenever someone was excused from jury duty for self-identifying as a non-citizen.
The clerks would send the list to the State Board, which would then disperse it to county election boards to remove ineligible voters.
In August, the North Carolina Republican Party sued, alleging that the State Board hadn’t taken steps to remove identified ineligible voters.
The State Board said that they couldn’t remove any of the identified people within 90 days of the election, in accordance with the National Voter Registration Act which prohibits systematic purging of the voter roll close to elections to avoid accidentally disenfranchising voters.
August data from clerks identified nine individuals who may need to be removed under the new law.
The State Board said it would check its databases to determine whether those people had obtained citizenship, and if not, would send them letters asking them to voluntarily remove themselves from the voter rolls.
In December, the board was set to begin removing those voters who were identified.
But that doesn’t necessarily make the case moot, Jackson said.
“There may be an underlying administrative problem that somebody would want to go ahead and keep pushing in the courts,” Jackson said.
“They might say, ‘Well, yes, they’re getting pulled, but we’re going to have another batch and then another batch and another batch.’ I mean, the basic argument here is, does being on this list constitute individual evidence?”
The jury duty lawsuit is awaiting a hearing and decision in Wake County Superior Court on a motion to dismiss filed by the State Board.
While the 2024 election may be over, the issues raised during the cycle aren’t likely to die. Elections lawsuits filed to obtain pre-election relief may have to pivot, but most will probably continue, Western Carolina University political science professor Chris Cooper said.
While the original plaintiffs may be upset about a specific outcome, the groups financing the elections lawsuits often care about the bigger picture, he said.
In the end, all the elections lawsuits may be just more noise in the back of voters’ minds.
“I think they’ll keep going because they’re all using a specific example to drive a bigger point that the Republicans in all these cases actually have been trying to drive home for a while,” Cooper said.
“I see these as kind of the wallpaper of North Carolina politics. We have so many lawsuits, we kind of forget that they’re there.”
Related
This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License. You may republish our stories for free, online or in print. Simply copy and paste the article contents from the box below. Note, some images and interactive features may not be included here.