By: Forrest Via
It’s no news to anyone that the COVID-19 pandemic has significantly changed how Americans go about their daily lives, affecting many activities that we once took for granted as safe. Voting has not been spared from this list. With the November 2020 election quickly approaching, states across the country have adopted measures aimed at ensuring the safety of those casting ballots and supervising the polls on November 3.
North Carolina is one such state. This summer, the North Carolina General Assembly passed HB 1169 (now Session Law (NCSL) 2020-17 after Governor Roy Cooper’s signature in June), a bipartisan piece of legislation that, among its many provisions, lowers the state’s absentee ballot witness requirement to one person; allows individuals to request absentee ballots via email or fax; and provides funding for election officials to carry out their duties in the face of challenges presented by the pandemic.
NCSL 2020-17 has won accolades from state legislators and advocates on both sides of the aisle. But, nevertheless, the session law’s provision of funds and loosening of absentee-ballot regulations have not stopped those seeking further changes from filing lawsuits. One commentator predicted that NCSL 2020-17 would be the death knell of challengers’ arguments, but multiple cases remain pending.
Several cases challenge NCSL 2020-17’s witness requirement. For example, the complaint in North Carolina Alliance for Retired Americans v. State of North Carolina, filed on behalf of plaintiffs by attorney Marc Elias, argues the witness requirement violates provisions of the North Carolina constitution, including the Free Elections and Equal Protection clauses. Despite these challenges, in Chambers v. State of North Carolina, the Wake County Superior Court denied plaintiffs’ motion for a preliminary injunction seeking to bar enforcement of the witness requirement, holding that the plaintiffs were unlikely to succeed on the merits and the equities weighed in favor of the defendants: If the motion were granted, the state would have to “replace or modify” existing ballot materials at significant monetary expense. As such, the Chambers court rejected arguments that essentially mirror those of the Alliance for Retired Americans plaintiffs.
Additionally, Holmes v. Moore involves a challenge to a provision in NCSL 2020-17 that implements a voter ID requirement. State legislators inserted the voter ID provision in HB 1169 in response to federal and state courts’ blocking of a 2018 voter ID law, SB 824, which the North Carolina Court of Appeals found to be motivated by discriminatory intent due to the exclusion of public-assistance ID cards from the law’s list of permissible IDs. The North Carolina Court of Appeals remanded the case to a lower court with instructions to grant a preliminary injunction blocking SB 824’s voter ID requirement from taking effect. On remand, after HB 1169’s introduction, the defendants, Republican members of the General Assembly, argued that the preliminary injunction should be lifted because HB 1169’s voter ID provision, one, was adopted with Democrat legislators’ support, and, two, remedied the Court of Appeals’ concerns by permitting use of public-assistance ID cards to vote. Nevertheless, the Wake County Superior Court denied the defendants’ request, leaving the injunction in place until a court addresses the case’s merits after the November election.
While NCSL 2020-17 remains safe, if not in full effect, for now, it remains to be seen whether the session law, and its constituent provisions, will be upheld.