Two legal challenges against the disputed “undeliverable mail provision” in North Carolina election law would end under a proposal filed Tuesday in federal court. A court order blocked election officials from enforcing the provision in 2024.
A third lawsuit challenging the provision continues to proceed before US District Judge Thomas Schroeder.
The undeliverable mail provision was included in Senate Bill 747, a 2023 election reform measure approved over then-Gov. Roy Cooper’s veto. The provision required election officials to discard a ballot from a same-day voter if one address verification card mailed to the voter was returned by the US Postal Service as undeliverable.
A proposed consent judgment filed Tuesday shows that the Democratic National Committee, North Carolina Democratic Party, and left-of-center activist groups represented by Democratic operative Marc Elias’ law firm reached an agreement with the State Board of Elections and state legislative leaders to end legal action related to the disputed provision.
The state and national Democratic Party groups targeted other portions of SB 747 that are not part of the proposed deal.
“Defendants believe that continued litigation over the Undeliverable Mail Provision will result in the unnecessary expenditure of State resources, and is contrary to the best interests of the State of North Carolina,” according to the proposed judgment.
Elections officials would be blocked from using the undeliverable mail provision to remove a same-day voter’s ballot “without first providing such voter notice and an opportunity to remedy the address verification failure,” according to the court filing. “Such notice shall be provided to the voter via U.S. mail and, if the voter provided additional contact information, by telephone and email, within one business day of receiving the undeliverable mail notice.”
A voter targeted by the undeliverable mail provision “must be permitted to remedy the address verification failure with documentation submitted in person, by mail, by email, or by fax,” the court filing continued. “The documentation must be received by 5 p.m. on the day before county canvass; provided, however, that a voter who is unable to provide the documentation by this deadline may also provide documentation in person at the county canvass, or may address the county board at the county canvass.”
Election officials also would be blocked from removing a same-day voter’s ballot if it’s “returned by the Postal Service as undeliverable after the close of business on the second business day before the county canvass.”
A third set of plaintiffs led by activist group Democracy North Carolina did not take part in the deal unveiled Tuesday.
Before SB 747, elections officials could remove a same-day voter’s ballot after receiving two pieces of undeliverable mail sent to the voter’s address. SB 747 would have cut the number of undeliverable mailings from two to one.
The Democracy NC suit accused lawmakers of targeting young voters in violation of the 26th Amendment. The complaint also argued that the change in state law violated voters’ due process rights and created an undue burden on the right to vote.
The law’s actual goal was “enhancing public confidence in elections,” according to an April 11 court filing from legislative leaders. Lawmakers and the State Board of Elections both filed motions for summary judgment in the case.
If Schroeder grants summary judgment, he would not proceed with a trial scheduled for “late summer.”
“The Undeliverable Mail Provision stemmed from concerns with difficulties in verifying addresses close in time to the election,” legislators’ court filing continued. “Under the pre-747 scheme, there was little time for completion of two mailers before canvass — especially for voters using [same-day registration] towards the end of early voting.”
“Indeed, the normal lag time with two mailers frequently meant the second mailer was returned as undeliverable after canvass, resulting in counted votes from unregistered persons,” legislative lawyers wrote.
“Plaintiffs attempt to minimize these real concerns and paint a picture of legislation designed to target 18–25-year-olds,” the court filing added. “The undisputed facts show otherwise. It is undisputed that the NCSBE, after careful thought, suggested moving to a one verification mailing system, which the General Assembly adopted.”
“Plaintiffs also ignore several substantive recommendations made by NCSBE which were adopted in full that enhanced the Undeliverable Mail Provision’s administrative practicability — including a specific recommendation that a [Help America Vote Act] document serve as proof of residence, which was aimed at helping college students.”
“Central to Plaintiffs’ case are allegations that the General Assembly enacted S.B. 747 in order to obstruct or limit young voters from utilizing SDR. But the factual record shows that age was never a consideration when drafting S.B. 747,” lawmakers’ lawyers argued.
Schroeder issued an injunction in January 2024 blocking the challenged provision from taking effect. The State Board of Elections then adopted temporary rules designed to address Schroeder’s concerns.
“Here, Plaintiffs are likely to show that the undeliverable mail provision of S. 747 imposes a substantial burden on SDR voters because it lacks notice and opportunity to be heard before removing the votes of a cast ballot from the count,” Schroeder wrote when issuing his injunction.
“For SDR voters, the lack of notice and opportunity to be heard is inconsistent with the State’s interest in counting all eligible voters’ ballots,” Schroeder concluded. “Moreover, given the lack of showing of an administrative burden on county boards of elections, the risk of irreparable injury, the balance of equities, and the public interest all weigh in favor of requiring notice and an opportunity to be heard.”
Schroeder rejected all other arguments plaintiffs offered to block other sections of SB 747.
The post Deal would end two legal challenges of NC’s ‘undeliverable mail provision’ first appeared on Carolina Journal.