As long as there are elections, there will be lawsuits — and in many cases, election protests.
This is true particularly in North Carolina, a swing state where “margins matter,” Western Carolina University political science professor Chris Cooper said.
“North Carolina is often ground zero for not just redistricting litigation, but election litigation work generally,” he said. “We have often been the case, the state that brings many of these critical cases to national light, and so I think that is likely to continue.”
Two of the election lawsuits filed before the 2024 election are especially relevant now, as several runner-up candidates in judicial and legislative contests attempt to flip their close races through election protests. These protests underscore the urgency for courts to resolve key election disagreements sooner rather than later.
Other lawsuits could emerge as the State Board addresses a second series of election protests referred or appealed from the county boards of elections.
The law, a faulty form and admin error
The first election challenges center around the Help America Vote Act, a federal law passed in 2004 meant to make voting easier. It requires state elections boards to collect voter registrants’ driver’s license numbers or the last four digits of their Social Security numbers, if they have either, before processing their voter registrations.
If they have neither number, they may check a box and get a unique voter identification number, which means they will be required to present additional HAVA documentation — a current utility bill, bank statement, government check paycheck or other government document with their current name and address — before they may vote for the first time.
At some point after HAVA passed, North Carolina’s voter registration form did not make it clear that registrants were required to provide one of these numbers, if the registrant had them. While the form was corrected in late 2023, the State Board declined to identify and verify each voter who registered during the earlier timeframe who did not have either a driver’s license or Social Security number on file.
The board argued that the requirement to present additional HAVA documentation at the polls the first time voters showed up, if they didn’t have one of the numbers, was sufficient to prevent any ineligible voting.
In August, the Republican National Committee and the North Carolina Republican Party filed a lawsuit over the board’s inaction in Wake County Superior Court. They asked the court to order the board to either purge the approximately 225,000 voters without a driver’s license or Social Security number on file from the voter rolls or require them to vote a provisional ballot to determine whether they were ineligible voters during the canvass period.
The courts did neither. Before the election, a federal district judge dismissed part of the lawsuit; another part is ongoing in the same court. The judge issued an order in late November declaring that any legal remedy or outcome would not apply to the 2024 general election, but instead future elections.
However, the claims presented in Republican National Committee v. North Carolina State Board of Elections reappeared in several election protests filed by Republican Court of Appeals judge Jefferson Griffin, who trails in his bid for North Carolina Supreme Court to incumbent Democrat Allison Riggs by 734 votes after a recount.
Alongside several Republican legislative runner-up candidates, Griffin challenged the eligibility of over 60,000 voters who cast ballots in the 2024 general election but whose voter registration database records did not include either their driver’s license numbers or the last four digits of their Social Security numbers.
The protesters asked the State Board to either remove the challenged ballots from the count or provide voters on protest lists a window of time to prove their eligibility before their vote could be counted.
Last week, the Board voted 3-2 along party lines to dismiss these protests, both on technical and substantive grounds. The Board’s Democrats argued that any issue in the voter rolls was not the voters’ fault, but instead an administrative error.
“A violation, irregularity or misconduct does not occur when a voter does everything the government requires of them to register, they possess the qualifications to vote, and they vote,” the board’s written decision stated.
Because of this, the protest does not meet the probable cause threshold for a full hearing, they decided.
The courts will have the final say on the matter, both for this election and future elections. The case is currently in the U.S. District Court for the Eastern District of North Carolina, to be decided by federal Judge Richard E. Myers II.
The Republican National Committee and North Carolina Republicans are arguing that the State Board violated the North Carolina Constitution’s equal protection clause by registering people to vote who did not include a driver’s license or Social Security number under the faulty registration form, in breach of HAVA. They argue that this left room for ineligible voters to register and vote, which would dilute the vote of eligible voters.
Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation. said he doubts a judge would toss out votes implicated in the HAVA voter registration issue, since the blame lies with county boards and the State Board’s “administrative failures.”
“Once you fix the problems in this case, you’re going to find out that the majority of those registrations are valid registrations,” he said. “And there may be some in there that are not valid, that are illegal, and they should be removed. And the State Board should do proper data work to make sure they can tell the difference.”
The suit is currently in the discovery phase, which will likely extend into 2025.
Gerry Cohen, adjunct instructor at Duke Sanford School of Public Policy and Wake County Board of Elections member, said he doesn’t see any remedy for Griffin besides a new election, since “there’s no way that I can see that the court could determine that he won.”
The State Board’s decision in the Griffin protests could be appealed to the courts, while the legislative protest decision could be appealed to the General Assembly. Either could call for a new election if they could not determine who won the contest. If that happened, it would likely happen well into 2025, Cohen said.
It would cost money county boards and the State Board don’t have, he added. In the meantime, Riggs would stay in office unless and until a successor is elected and duly qualified. The General Assembly may keep contested legislative seats vacant or temporarily seat someone until the issue is resolved, Cohen said.
‘Never residents’ eligibility to vote
The second election protest mirroring a pre-existing lawsuit deals with so-called “never residents,” individuals whose parents or legal guardians were last eligible to register in North Carolina before moving overseas but who have never legally resided in the state.
In early October, the RNC and North Carolina Republican Party filed another lawsuit against the State Board, this time asking the courts to block a state law, passed along bipartisan lines in 2011, that allows these so-called “never residents” to vote in local and state elections. They argued that the state law violated the state Constitution’s residency requirement for voting in state and local elections.
They also asked the court to remove any ballots cast by these individuals in the 2024 general election. That did not happen.
Before the election, the North Carolina Court of Appeals sided with a lower court that ruled against North Carolina Republicans. The courts denied the request to block the state law or deem voters who voted under it ineligible for the 2024 general election.
The decision was appealed to the state Supreme Court, but the court did not act before the election.
Griffin and legislative candidates filed election protests challenging the ballots of these voters. According to the State Board, this subset of election protests included 266 ballots statewide.
The State Board also dismissed these protests in a 3-2 vote, arguing that they were beholden to the law at the time of the election and couldn’t ignore it even if they thought it might be unconstitutional.
Secure Families Initiative and Count Every Hero weighed in on the case through amicus briefs, supplementary briefs that present additional arguments or evidence for courts to consider in a case.
Secure Families Initiative is a nonpartisan organization made up of military partners, parents, kids and loved ones whose goal is to support civic engagement among people connected to military service.
SFI Executive Director Sarah Streyder said the timing of the lawsuit, over a decade after the state law first passed, felt “disingenuous” and “disheartening” to the military and overseas community of U.S. citizens.
Within a week, lawsuits were filed in Pennsylvania, Michigan and North Carolina over the issue. All are swing states. Streyder said the timing of the lawsuits “casts aspersions as to the intentions behind lawsuits like this.”
“These are U.S. citizens who have a right to vote, and because our country is set up where our states are the ones who conduct elections … the only way that an overseas U.S. citizen can exercise their constitutional right to vote is through a state,” she said.
North Carolina Republicans have argued in the lawsuit and in election protest hearings that these overseas voters are not part of the local and state political community of North Carolina, and therefore should not be able to vote in those elections.
Streyder disagreed. Those voters might have friends and family in North Carolina, visit during holidays, pay income tax through the state or have other ties to the political community.
“Theoretically, this might be a community they intend to come back and establish roots in someday,” she added.
The State Board’s election protest decision may be appealed to the courts and the General Assembly. Or the legislature could go ahead and change the law to bar this class of individuals from voting, Cohen said.
Meanwhile, the lawsuit is pending at the state Supreme Court. Campaign Legal Center counsel Valencia Richardson, who is working with SFI and Count Every Hero on the case, said the state Supreme Court is where the buck stops, since the case deals with state law, but there’s no predicting how long it will take to resolve.
“In my experience as a voting rights litigator, it really just is up to the court that’s hearing it at the time,” she said. “And I think we’ll see how the North Carolina Supreme Court decides ultimately, but there’s really no way to truly know when they’re going to do it.”
Potential for more election lawsuits
The State Board’s work isn’t done.
In addition to the election protests the body has already considered, it will have to make a decision in election protests under the jurisdiction of county boards of election that are referred or appealed to the State Board. The results of these decisions could lead to further lawuits.
These protests deal with the alleged inclusion in the final election count of groups including deceased voters, active felon voters and voters who failed mail verification tests and therefore do not have valid voter registrations.
The State Board gave jurisdiction of these protests to county boards, since they were more factually based. But at least 13 county decisions were appealed to the State Board and at least 22 counties referred all or part of their election protests to the Board. In 45 counties, all the protests were dismissed for a lack of probable cause that an election violation, misconduct or irregularity occurred.
The Board has not yet set a date for when it will consider these referred and appealed protests.
The first deals with voters who died between the time they cast their ballots and Election Day. There was some confusion over whether the law required those deceased voters to be removed from the count, particularly in Wake County.
The second involves voters who, protesters allege, might be active felons, based on the information available to them. The third factual protest centers around voters who failed the mail verification test to validate their residency, and therefore do not meet voter eligibility requirements.
Overall, a total of 817 voters’ ballots were challenged for one or more of these reasons, according to a State Board analysis. While that’s enough ballots to bridge the gap between Griffin and Riggs, it would require almost all of the challenged votes to have been cast for Riggs to flip the race.
Whenever the State Board makes its decision, it will be appealable — to the courts in the Griffin case, and to the General Assembly in the legislative races.
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