Democracy NC trial over federal elections set for August 2025

The left-leaning activist group Democracy NC has had to wait nearly a year for a hearing in its lawsuit challenging a change in North Carolina election law affecting same-day voter registration.

A federal court document released Thursday tentatively set a trial date of Aug. 4, 2025, before U.S. District Judge Thomas Schroeder in Winston-Salem. A court order issued in June had promised a trial date for the case in “late summer” 2025.

Democracy NC's lawsuit is one of three ongoing lawsuits challenging the same provision in North Carolina's election law. Schroeder has put the other two lawsuits on hold. Unlike in the other two cases, the plaintiffs led by Democracy NC would not comply with the state legislators' request to put their lawsuit on hold.

All three lawsuits challenge a provision of the 2023 bill, Senate Bill 747, the so-called “undeliverable mail provision.” It changes the rules for same-day registration. Schroeder issued a preliminary injunction in January blocking implementation of the challenged provision.

The state election board then adopted temporary rules to address Schroeder's concerns, which will remain in effect for the remainder of the 2024 election cycle.

In April, Republican legislative leaders filed a motion urging Schroeder to stay Democracy NC's lawsuit despite the plaintiffs' objections.

“For the reasons stated herein, the interests of procedural economy, the hardship and injustice that would be caused to defendants in the House and the North Carolina State Board of Elections (NCSBE) without a delay, and the complete lack of potential prejudice to plaintiffs in the event of a delay, a delay of this matter until at least March 9, 2025 is warranted,” wrote attorneys for Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland).

In two other cases, plaintiffs have agreed to put their lawsuits on hold. One case lists the Democratic National Committee and the North Carolina Democratic Party as plaintiffs. The other case lists Voto Latino and other left-leaning activist groups. Attorneys from Democratic activist Marc Elias's firm are helping represent the Voto Latino plaintiffs.

The plaintiffs in the Democratic Party and Voto Latino cases were prepared to stay the lawsuit after Schroeder issued his preliminary injunction in January. Schroeder blocked a provision of SB 747 that dealt with the removal of ballots from voters who registered on the same day. The law required those ballots to be removed if the post office returned an address verification card sent to those voters as undeliverable.

Schroeder issued orders in early April denying motions to dismiss the Voto Latino and Democracy NC cases.

The judge had issued a temporary restraining order on Jan. 21 blocking the challenged provision of SB 747 from going into effect. The state Board of Elections followed suit on Jan. 29 by announcing a temporary interim rule designed to address Schroeder's concerns. The rule change was designed to inform voters that their ballots were being challenged and give them an opportunity to object to the removal.

“The intervening legislature has not demonstrated that the interim rule renders the complaint moot,” Schroeder wrote in Voto Latino v. Hirsch. “Although the NCSBE's interim rule is currently in effect, it remains temporary because of the statutory authority for its adoption.”

The state Board of Elections touted in a January court document “a process that provides notice and an opportunity for redress to same-day registered voters whose first notice is returned as undeliverable.”

The panel's lawyers informed Schroeder of Memo Numbered 2023-05. The memo outlined a “notification and cure” process for voters whose mail could not be delivered on the same day.

“The county council shall mail and email the registrant a 'Notice to Confirm Your Address' within one business day of receiving the undeliverable confirmation card, if it is provided on the registration form,” the memo states. “County council staff shall also call the registrant to verbally communicate the information in the notification if a telephone number is provided on the registration form.”

“The registrant may verify his or her address (i.e. 'cure' the failed mail verification) by submitting a copy of a 'HAVA document' to the county council no later than 5 p.m. on the day before the precinct count for same-day registration,” the memo continues.

HAVA refers to the Help America Vote Act of 2002.

“The notice requires the registrant to provide a document other than the one he used to register during early voting,” the memo states. “The copy of the document may be provided by email (with scanned or photographed document), fax, mail, or in person during business hours. The notice provides the registrant with the opportunity to come to the campaign meeting in person to confirm his address if he is unable to provide an acceptable 'HAVA document' by the deadline noted above. In this case, the county board will accept the registrant's testimony under the first oath in G.S. § 163-86(c) and consider all documentation provided by the registrant.”

If undeliverable mail arrives at the district council on the day before the vote count or later, the election staff will not send a notification.”[T]The voter's ballot must be included in the official count,” the memo said. “At this point, there is insufficient time to notify the voter and provide them with a meaningful opportunity to remedy the situation.”

Plaintiffs in three federal court cases had challenged the new state election law's “undeliverable mail” provision. Under the old law, election officials could throw out a voter's ballot that arrived on the same day after receiving two undeliverable letters sent to the voter's address. SB 747, which took effect last October, would have reduced the number of mailings from two to one.

“Here, plaintiffs will likely show that the undeliverable mail provision in S. 747 imposes a significant burden on SDR voters because they lack notice and an opportunity to be heard before a cast ballot's votes are removed from the count,” Schroeder wrote in granting his preliminary injunction.

“In the last four even-numbered elections, 1,799 of 100,578, 696 of 45,666, 2,151 of 116,326, and 391 of 34,289 voters registered on the same day failed address verification,” the judge wrote. “However, these figures are based on the state's previous two-card system, and the court can reasonably assume that there would be no fewer errors if the state board defendants sent only one postcard.”

“State Board defendants and interveners, meanwhile, have not presented any evidence at this time that any of the several thousand same-day registered voters who have failed address verification since its inception in 2008 were ineligible to vote due to improper residency,” Schroeder wrote.

“Plaintiffs will also likely demonstrate that section 163-82.6B(d) deprives same-day registered voters of notice and an opportunity to be heard before their ballots are rejected through no fault of their own,” the judge added.

“For SDR voters, the lack of notice and opportunity to be heard is inconsistent with the state's interest in counting the votes of all eligible voters,” Schroeder concluded. “In addition, given the lack of evidence of an administrative burden on county election boards, the risk of irreparable harm, the balance of equity, and the public interest support the requirement for notice and opportunity to be heard.”

Schröder rejected all other arguments put forward by the plaintiffs, which aimed to block other sections of the new electoral law.

Under previous state law, election officials mailed notification cards to the address listed on a voter registration form for the same day. If two notifications were returned as undeliverable to a local election office, election officials would pick up the voter's ballot from the same day, which did not count in the vote count.

As of Jan. 1, SB 747 requires election officials to discard a same-day ballot if a mail-in ballot could not be delivered. Schroeder's injunction blocked that provision.

Plaintiffs in one of the cases had argued in their original complaint that the controversial provision threatened to “undermine” same-day voter registration in North Carolina.

“Before the passage of S 747, the votes of same-day registered voters in North Carolina were counted unless the Post Office returned two 'undeliverable' letters,” the October lawsuit states. “At worst, two notices of undeliverability could result in the votes of same-day registered voters being publicly challenged, provided the challenge was received by 5 p.m. on Election Day. But even if the votes of same-day registered voters were challenged, the voter was entitled to notice and a hearing to defend his or her vote in the face of such a challenge.”

“The undeliverable mail provision of Section 747 prohibits Defendants from registering and counting a voter's ballot on the same day that the United States Postal Service returns as 'undeliverable' a single notice sent to that voter before the close of business on the business day before the vote count,” the suit continued. “Now, these voters receive no notice that their ballot has been removed from the official count, let alone an opportunity to speak in their defense. Nor are they informed that their registration was not processed. Instead, they are automatically incapacitated and not registered to vote – all without being afforded any process to challenge the removal of their votes from the count or their exclusion from the voter rolls.”

The lawsuit states that in 2022, 104,336 voters used same-day registration and in the last presidential election in 2020, 116,065 voters used same-day registration.

The plaintiffs asked the federal court to declare the “undeliverable mail provision” unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution.