Judge rejects idea that NC election laws require ‘one-way ratchet’

Two sentences in a recent federal court order captured a recurring theme in North Carolina’s legal disputes over election reforms since 2011.

“A legislature is not precluded from improving the system because of its inability to perfect it. Nor should election changes become a one-way ratchet, incapable of improvement merely because voting may become marginally harder.”

US District Judge Thomas Schroeder included those lines in a 108-page ruling last month. Schroeder upheld a 2023 election change that prompted three separate federal lawsuits.

Senate Bill 747, approved in 2023, included an “undeliverable mail provision.” It addressed a problem linked to same-day voter registration.

Prior to the disputed provision, state law called for election officials to disqualify a ballot cast by a same-day registration voter if the postal service returned two address verification cards as undeliverable.

Election officials discovered that proof of the second undeliverable mailing often arrived too late to affect a voter’s ballot. That meant that at least some people might have had ballots counted despite being ineligible to vote.

SB 747 mandated disqualification of a same-day voter after a single piece of undeliverable mail. Critics pounced with multiple federal lawsuits.

Schroeder did not dismiss the criticism out of hand. He issued an injunction blocking the requirement for the 2024 elections.

The State Board of Elections responded with a “notice-and-cure” process designed to address the judge’s concerns. That process helped settle two of three federal lawsuits.

Yet Democracy North Carolina, the North Carolina Black Alliance, and the League of Women Voters continued to pursue the third complaint. They argued that SB 747 intentionally discriminated against young voters.

After weighing all arguments, Schroeder determined on March 26 that the plaintiffs “failed to demonstrate that the law’s changes are unconstitutional.”

The judge placed same-day registration changes in perspective.

“North Carolina is one of the minority states which allows SDR voting in the first place,” Schroeder wrote. “SDR creates unique challenges for a state’s ability to verify a voter’s qualifications, given SDR’s temporal proximity to election day.”

Critics say SB 747 “singles out an identified class of voters,” but “it is more accurate to characterize SB 747’s changes to the verification system for SDR as North Carolina’s condition on the use of a form of voting that the state was not required to provide in the first place,” he added. The previous two-card verification method “faces practical limitations.”

“Of course, the voters who use SDR are entitled to make timely use of traditional registration on any of the 340 days of the year before an election,” Schroeder added.

The judge was “unpersuaded” that SB 747 treated same-day registration voters as a “disfavored class.”

“[I]ndeed, it does not single out a class of voters at all,” his order explained. “Because its requirements for SDR verification are relevant to a voter’s qualifications, SB 747 does not fit within the class of restrictions courts have found to be ‘invidiously’ discriminatory.”

Plaintiffs view the state’s “electoral scheme from the wrong vantage point,” Schroeder wrote. “It is true, as Plaintiffs point out, that at the time of SDR voting, traditional registration methods are no longer available because of the proximity to election day. But to suggest that North Carolina has forced SDR users into this situation is meritless.”

North Carolina “offers extensive opportunities for voting and registration, including five more days of traditional registration than is required under federal law, 2,600 polling places, no-excuse absentee voting, and curbside voting,” Schroeder added. “An individual’s decision to forego traditional registration is almost certainly the product of his or her own choice.”

SB 747 addressed a legitimate government interest while creating a “minimal burden,” Schroeder determined. “SB 747 serves the efficient administration of elections, aids in the prevention of fraud and the appearance of fraud, and promotes public confidence in the integrity of the electoral process.”

While imperfect, the new law “goes some length toward addressing the problem of conducting a second verification too late in the process … and promoting public confidence in election security,” the judge wrote. Loosening election rules to provide same-day voter registration did not have to create a “one-way ratchet” limiting improvements.

Though targeted to one particular dispute, Schroeder’s comments apply equally well to multiple lawsuits filed over the past 15 years. First, reformers seek to tighten state rules to boost election integrity. Then they face cries of voter suppression and illegal discrimination.

Schroeder’s ruling suggests that federal courts will not simply accept the notion that a new, more stringent election standard cannot survive judicial scrutiny.

Mitch Kokai is senior political analyst for the John Locke Foundation.