Democracy North Carolina v. Hirsch

On October 17, 2023, the League of Women Voters of North Carolina (LWVNC), Democracy North Carolina, and the North Carolina Black Alliance filed a federal lawsuit in the United States District Court for the Middle District of North Carolina challenging several provisions of SB 747, an omnibus election law passed by the North Carolina legislature.  

At issue were changes to same-day voter registration and voting during the early voting period. North Carolina allows citizens to register and vote on the same day at the polls during early voting if they complete the voter registration application form and present the following proof of identity with their current address:

• North Carolina driver’s license.
• Other photo identification issued by a government agency, provided that the card includes the voter’s current name and address.
• A copy of a current utility bill, bank statement, government check, paycheck, or other government document showing the voter’s name and address.
• For students living on campus, a document from an educational institution with the student’s name and on-campus housing address. Alternatively, an educational institution may also provide the county board of elections a list of students residing in particular campus housing, which will suffice if a student living in campus housing shows a valid student photo identification card. 

The applicant is then allowed to vote after presenting a valid voter ID at the early voting site, should they choose to do so. 

Prior to SB 747’s passage, the county board of elections would verify an applicant's address by checking their driver's license or Social Security number. If the county board determined the applicant was not qualified, it would mail the would-be applicant a notice of denial, which includes the opportunity to appeal the decision in a public hearing.  

If the county board tentatively found the applicant was qualified to vote, the mail verification process began. The board would send two notices using non-forwardable mail to the address provided by the applicant on the voter registration form. If the notice was not returned as undeliverable, the applicant was added to the registered voter database. If the first notice was returned as undeliverable, a second notice was sent to the same address, and if that was also returned as undeliverable, the voter registration application was denied.  

Under SB 747, several changes were made to these processes.  

A citizen using same-day registration will only be sent a single notice under the mail verification process for same-day applicants and voters. If that single notice is returned as undeliverable before the close of business the day before canvassing of the votes, the applicant would not be registered to vote and the ballot they cast would be thrown out.  

Changes to the ID accepted as proof of address were also made. Under SB 747, the list of acceptable ID’s was narrowed to the following: a current utility bill, bank statement, government check, paycheck, another government document, or a document “issued from the institution who issued the photo identification shown by the voter pursuant to G.S. 163-166.16.”  

Furthermore, SB 747 made it easier to challenge the eligibility of voters casting ballots in early voting by allowing any voter registered in the same county as a challenged voter to file a challenge until 5pm on the fifth business day after a primary or general election for absentee ballots. 

Prior to SB 747, challenges could only be brought if the following conditions were met:  

1. Only a voter registered in the same precinct as the challenged voter, a chief judge of the challenged voter’s precinct, or an official conducting elections at an early voting site could bring a challenge. 
2. The challenge had to be filed between 12pm and 5pm on Election Day at the county board office. Ballots cast during early voting could also be challenged during the early voting period at the county board office or when the voter came to cast their ballot at their early voting site. 

The plaintiffs asserted the changes violated the right to procedural due process and were an undue burden on the right to vote based upon the First and Fourteenth Amendments, by subjecting voters to having their registration and ballot cancelled because of a single piece of undeliverable mail while denying them notice and an opportunity to be heard, without any justifiable state interest.  

Finally, the plaintiffs contended the provisions discriminated against younger voters on the basis of their age, violating the Twenty-Sixth Amendment. LWV of North Carolina and its co-plaintiffs pointed out that younger voters experience high rates of failed mail verification and that North Carolina’s legislature had repeatedly sought to restrict youth voting in various fashions. 

As a remedy, the plaintiffs requested the provisions of SB 747 be declared unconstitutional and unenforceable.  

LWV North Carolina was represented in this matter by Southern Coalition for Social Justice and Steptoe and Johnson, LLP.