In the past month, five lawsuits have been filed against the North Carolina State Board of Elections highlighting alleged issues with the state’s voter rolls and absentee ballot counting.
Many directly or indirectly point to the same fear — amplified by national political figures like former president Donald Trump — that deficiencies in electoral processes are allowing noncitizens to vote or register to vote en masse.
Where there’s smoke, there’s fire. Or maybe, there’s just a smoke machine, NC State political science professor Steven Greene told Carolina Public Press.
He said the lawsuits may be an attempt by Republicans to prepare post-election “stolen election” arguments.
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“It’s all about perception,” Greene said. “It’s politics. It’s trying to sow doubt, so that when, let’s just say the election does come down to North Carolina … and they want to contest things, they can say, ‘Well see, look, we had already raised these issues about immigrants voting and we had our lawsuits.’ So it’s kind of setting the political groundwork.”
The groups filing the suits deny any ulterior motive.
“On our part, it’s not some kind of conspiracy to file them at this time,” said Marly Hornick, co-founder of United Sovereign Americans, a plaintiff in one of the lawsuits. “We have to file them, and this was when they got out the door.”
Elections officials will send out the first batch of ballots to absentee voters in a week or so, leaving little time to resolve lawsuits before the election is officially underway. Nonetheless, even without a resolution, the lawsuits may affect the perception of the election among voters.
Are noncitizens voting?
While the U.S. Constitution requires residents to be U.S. citizens to vote in federal elections, and every state bans noncitizens from voting in statewide elections, a group of high-profile politicians and political groups have raised concerns about noncitizens voting in large numbers.
In addition to eliciting a series of lawsuits, these efforts have led various states to put constitutional amendments on the ballot reiterating that only citizens can vote in elections held within the state. North Carolina is one.
On a national level, congressional Republicans recently attempted to link the passage of a key spending bill to another bill that would ban undocumented immigrants from voting in U.S. elections. The only elections noncitizens may vote in are local or school board elections in a handful of municipalities across the country.
In the recent presidential debate, former president Trump gave the movement more steam, falsely claiming that his political opponents wanted to let undocumented immigrants into the country to get them to vote.
The catch? There is no evidence suggesting that noncitizens are voting in electorally significant numbers.
In North Carolina, only eight cases of noncitizens voting or registering to vote were referred for further investigation by the State Board between 2015 and 2022.
In 2016, the Brennan Center for Justice conducted a study of 42 jurisdictions during the election, including eight of the 10 jurisdictions nationally with the highest share of noncitizen residents.
They found that an estimated 30 incidents of suspected noncitizen voting were referred for further investigation, out of 23.5 million votes.
The Cato Institute, a libertarian political think tank, also asserts that claims of noncitizens illegally voting in large numbers are incorrect.
The New York Times recently debunked claims by the conservative think tank Heritage Foundation that a high percentage of noncitizens in Georgia were registered to vote. The Heritage Foundation itself found only 24 proven instances of noncitizens voting between 2003 and 2023.
“There’s just zero evidence for any kind of organized, widespread voter registration fraud, especially by illegal immigrants,” Greene said. “So for groups that are making claims of this, it just gives them no credibility.”
So, why are political groups continuing to file lawsuits that directly or indirectly assert a threat of non-citizens voting?
Greene said it’s part of the Republican Party’s broader strategy of “demonization of immigrants,” as well as a way to combine two of their party’s concerns, immigration and elections.
In North Carolina, Andy Jackson, director of the Civitas Center for Public Integrity, said a high volume of election lawsuits is nothing new, and “strong disagreements about the rules and the process” of voting exist.
“It’s kind of a sad fact of life in North Carolina that we’re going to have these, mostly led by the (Democrat and Republican) parties because the parties believe if they can change the rules through the lawsuits in one way or another, it will benefit them,” Jackson said.
“But there are other folks too who have a genuine belief that there are problems with the system, and if they can’t get a resolution that they like from the State Board or from the General Assembly, they’ll see what they can get in the courts.”
Democracy North Carolina Policy Director Katelin Kaiser called the lawsuits “a rhetorical ploy to sow distrust, as well as really hurt folks who are just trying to get by and live and be able to have beautiful, thriving families.”
If so, it’s working, at least among a portion of the voting population.
An August survey of a thousand North Carolinians by YouGov and Catawba College found that 37% were not too confident or not confident at all that people who are not U.S. citizens are prevented from voting in North Carolina.
The distrust rose to 59% among Republicans, but remained at a relatively low 10% even among Democrats. About 39% of Independents surveyed said they lacked confidence.
What do the lawsuits allege?
North Carolina Republican Party v. North Carolina State Board of Elections
The first lawsuit, filed on Aug. 22, alleges that the State Board violated a recently passed law requiring the Board to remove certain noncitizens from the voter rolls.
On July 1, a new elections law went into effect in North Carolina. One section of the law mandates that court officials report anyone who is summoned for jury duty, but is recused because they say they are not a U.S. citizen, to the State Board of Elections.
The board must then check the identified individuals’ citizenship status and determine whether they’ve registered to vote. If the board detects any noncitizens who are also registered voters, the board must pass along that information to the relevant county boards of elections, which remove these names from the voter rolls after giving the individuals a 30-day period to object.
The entire process can take up to 90 days, if the voter does not object to removal, according to statute.
The North Carolina Republican Party, joined by the Republican National Committee, alleges in court filings that the State Board of Elections has not sufficiently proven that it is complying with the law.
Neither the state board nor the North Carolina Republican Party responded to requests for comment regarding any of the lawsuits mentioned in this story. The State Board has not filed any responses with the courts, either.
However, North Carolina Asian Americans Together and El Pueblo, groups that help newly naturalized citizens to register to vote, joined the lawsuits as defendants.
In court filings, the groups argue that there was not time for the state board to comply with the law before the federal deadline for “systematically” removing ineligible voters from the rolls, 90 days before an election. This year, that was Aug. 7.
The new state law went into effect July 1, meaning elections officials would have had to complete the removal process in 37 days.
“More than 130,000 North Carolinians have become naturalized citizens since 2013, and they face a particularly acute threat from Plaintiffs’ effort to force a rushed removal of all voters who self-identified as noncitizens at some point in time,” the groups’ motion to intervene reads.
Jackson said the lawsuit comes down to whether removing the handful of noncitizens implicated so far counts as “systematic” removal, which is not allowed at this point in the election cycle, or individualized removal, which includes removing voters on a case-by-case basis if they’ve died or been convicted of a felony.
“The state board has asked those folks to voluntarily remove themselves rather than removing them, because they’re treating this as a database issue rather than an individualized evidence issue,” Jackson said.
Republican National Committee v. North Carolina State Board of Elections
The second lawsuit, filed a day after the first by the same parties, alleges that the State Board is violating state law by not verifying the identity of 225,000 registered voters who used an older voter registration form.
In October 2023, an individual made a complaint about North Carolina’s voter registration form, which did not clarify at the time that registrants had to provide either their driver’s license number or the last four digits of their social security number, if they had one, in accordance with the federal Help America Vote Act.
In December, the State Board granted the request to change the form going forward, but declined to identify and contact the 225,000 registered voters who allegedly were registered without the required HAVA documentation.
The State Board has said that those who registered in this way will have to produce photo identification when engaging in other parts of the election process, like absentee or in person voting. Republicans say that’s not enough.
Jackson said it would be the same if voters could only provide their driver’s license or Social Security number to vote, but “we have a kind of expansive list of possible IDs,” which also includes a U.S. Passport, approved student and government-employee IDs and military or veterans photo IDs.
For a subset of people without any driver’s license or Social Security number, federal law allows them to check a box attesting so on voter registration forms, but Jackson said he doubts 225,000 people would meet that criteria. He also doubts a judge would remove anyone’s registration before this year’s election.
“We are inside the 90-day window that federal judges have said, ‘Well, you’re not going to do any large-scale changes in the voter rolls,’ ” he said. “… I think the plaintiffs are aware of that, I think that’s that part’s kind of going through the motions.”
In the lawsuit, the Republican National Committee and North Carolina Republican Party ask the court to require those who did not provide HAVA documentation but were registered to cast a provisional ballot, if they can’t be removed from the voter rolls.
United Sovereign Americans v. North Carolina State Board of Elections
On Aug. 28, conservative legal group United Sovereign Americans filed its latest lawsuit in North Carolina, “amidst fears that noncitizens will impact the electoral outcome of 2024 races nationwide,” according to a press release from the group.
The legal group has also sued elections officials in Pennsylvania, Michigan, Ohio, Maryland, Florida, Texas, Montana and Massachusetts. A federal judge tossed out the Maryland lawsuit, but it has been appealed.
Their lawsuits allege potential issues in states’ voter rolls, claiming that systemic issues in the 2022 elections will continue in 2024 if no corrective action is taken.
USA co-founder Marly Hornick said her group used North Carolina’s statewide voter registration list and detected certain “facially invalid” registrations, including situations where it appeared as if the same voter was registered twice based on their name and birthdates.
But Hornick said they do not have access to Social Security numbers, driver’s licenses or other identifying information that “would absolutely confirm, in an ironclad manner” that two people on the voter rolls with the same name and birthdate who live in different North Carolina cities “ are definitely the same person.”
While they cannot prove that any of the 2022 election results were invalid, she said the State Board cannot prove that the outcome was correct.
“We have to investigate and make sure that no adversary to America has got their thumb on the scale somehow,” she said. “We’re not saying they do, but we can’t just be naive and say they don’t until we’re certain.”
In its court filings, USA presented a myriad of other potential issues, including incomplete addresses and registration dates on weekends or state holidays. Overall, they allege that 15% of voter registrations during the 2022 election contained some sort of potential error.
On Sept. 9, the U.S. Department of Justice issued guidance to elections officials in response to similar lawsuits across the country attempting to remove people from the voter rolls.
The guidance said voter roll maintenance conducted by “comparing voter files to outdated or inaccurate records or databases, taking action that erroneously affects a particular class of voters (such as newly naturalized citizens), or matching records based solely on first name, last name, and date of birth” may violate the National Voting Rights Act.
Wassenberg v. North Carolina State Board of Elections
On Sept. 3, the same parties, plus voter Virginia Wassenberg, sued the State Board over the way absentee ballots are counted.
When voters fill out absentee ballots, they are supposed to place the actual ballot with their marked votes in a specific container-return envelope. The envelopes have to be filled out with certain information, including the signatures of the voters and their witnesses and photocopies of photo identification or photo ID exception forms. The container-return envelopes are then placed in a larger, outermost envelope to protect each voter’s privacy.
The State Board told county boards of election that they could accept absentee ballots when the outermost envelope was sealed even when the inner container-return envelope was not.
In court filings, the Republican National Committee, North Carolina Republican Party and Wassenberg said this violates North Carolina law, which directs voters to “securely seal” the container-return envelope. They asked the court to make the State Board take back its guidance and only count ballots with both envelopes sealed.
Republican National Committee v. State Board
The lawsuits show little signs of stopping.
On Sept. 12, the Republican National Committee and North Carolina Republican Party sued the State Board once again, on grounds that their approval of a digital student ID as a valid voter ID violates state law.
They asked the court to ban the use of the UNC mobile One Card for the upcoming election.
Is perception reality? The impact of election lawsuits
In 2020, a statewide election for Chief Justice of the North Carolina Supreme Court was decided by 401 votes. Republican Paul Newby defeated Democrat Cheri Beasley by less than a hundredth of a percentage point.
People are still complaining about the results today, Jackson said, based on the idea that some voters may not have had driver’s licenses or Social Security numbers on file.
Similarly, Jackson said issues raised in recent lawsuits, proven or not, “could lead folks to question the results, certainly.”
Election night results are unofficial. The official results are tallied during a post-election canvass 10 days later in each county. Elections officials work between Election Day and the canvass to ensure that votes are audited and reviewed for accuracy.
“It seems that these lawsuits may be teeing up arguments for candidates to use later as to why they think those carefully tabulated results are not accurate, and if they succeed, the result will be that lawfully registered voters, votes will be thrown out from both parties,” Common Cause North Carolina Policy Director Ann Webb said.
Once results are certified at the post-election canvass, there’s no going back. Votes cannot be retroactively changed or removed. But the perception of an election can still change.
Webb questioned the timing of recent lawsuits.
She said most are based on information that’s been in the public record for a while, which “suggests that the choice to file them this late in the process is not really about the substance of these lawsuits, but is is actually about the strategy to cause disruption in the election process, to foment uncertainty about our elections in North Carolina and to support potential efforts to undermine the outcome of the elections.”
USA co-founder Hornick denied this. She said as a volunteer organization, USA members are working in their free time outside of normal working hours to get things done.
“This is how long it takes,” she said.
Western Carolina University political science professor Christopher Cooper said both options are possible.
“Lawsuits should not be understood in a vacuum,” he said. “Part of it is the legal challenge itself, and part of it is communication about that challenge to the voting public, and both are in play. If it was only about the law, then they wouldn’t have put out a press release saying that they had filed the suit.”
While the lawsuits may not be resolved before the election, Kaiser said the lawsuits may divide, anger or call to action voters ahead of the election.
“Other folks may say it’s clear that my voice is not needed in this election,” she said.
Newly naturalized citizens in particular may be confused and discouraged from voting, Kaiser added.
Cooper said he expects the lawsuits will continue a decline in trust in elections.
On the other hand, Jackson said the lawsuits raise issues the state board should fix to earn more trust.
“The hopeful thing in this process is that this prods the state board to do things that it’s supposed to do,” he said. “And that may cause some short-term questioning of results, but hopefully this will lead to a longer-term greater trust in the system.”
Regardless of outcome, Cooper said North Carolina may see legislation next year along similar lines of the lawsuits. For example, the General Assembly could mandate more specifically how voter list maintenance should be done, or take some bureaucratic discretion away from the State Board of Elections.
“There’s a lot of ways to get a policy outcome,” Cooper said.
“You get it through the courts, you get it through the legislature and the legislative process. So I think we’re going to see more and more bills to try to accomplish this goal.”
Editor’s note: This article is part of U.S. Democracy Day, a nationwide collaborative on Sept. 15, the International Day of Democracy, in which news organizations cover how democracy works and the threats it faces. To learn more, visit usdemocracyday.org.
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