Election lawsuit challenges North Carolina’s absentee-by-mail requirements

by Lindsay Marchello

Raleigh, NC – A small group of N.C. voters are suing the state and the N.C. State Board of Elections over absentee voting regulations, but demands in the lawsuit may lead to election fraud, or the appearance thereof, legal and political analysts say.

Marc Elias, a Democratic campaign attorney, is representing seven voters in Stringer Et Al. v. the State of North Carolina, alleging a number of absentee-by-mail voting regulations will disenfranchise voters come November, when a second wave of COVID-19 infections may make in-person voting too risky. The case must be heard by a three-judge panel, the lawsuit says. 

The complaint focuses on: 

  • A requirement for voters to pay for their own stamps to submit mailed ballots
  • The enforcement of a receipt deadline while mail disruptions and budgetary shortfalls plague the U.S. Postal Service
  • The requirement that all absentee ballots must be signed by two witnesses or notarized
  • The practice in some counties of rejecting absentee ballots because of signature discrepancies

“Taken together, these restrictions on mail ballots are at best unduly burdensome and pose significant risks to voters’ health and safety, and, at worst, impossible to comply with during a global pandemic, and will result in the disenfranchisement of an unprecedented number of North Carolinians, especially those who are medically and financially vulnerable,” the complaint reads. 

David McLennan is a political science professor at Meredith College and director of Meredith Poll. Certain issues are valid, but there’s a caveat, he said.

“Reducing the number of witness signatures and providing postage would certainly reduce barriers that would prevent some from using the absentee ballot.” 

North Carolina may see a small increase in turnout from removing those barriers, McLennan said, but changes might raise questions about the integrity of results. 

Regardless, the plaintiffs may not have standing to bring the lawsuit, said Jon Guze, director of legal studies at the John Locke Foundation. 

Standing is usually determined by a three-step process, Guze said. First, has there been or is there likely to be an invasion of a legally protected interest that is concrete? Second, is the injury fairly linked to what the defendant claims? Third, is it likely that a favorable decision from the court would resolve the problem? 

“Using that test, it is hard to see how the Stringer plaintiffs can possibly have standing to proceed,” Guze said. “Far from being actual or imminent, all of their claims are extremely conjectural and speculative.”

But the criteria are fairly vague and subjective, Guze said, which gives the courts a lot of room to reach a different conclusion. 

“Bottom line: It all depends which judges hear the case,” Guze said. 

Karen Brinson Bell, state BOE executive director, in March submitted a request to the General Assembly asking it to loosen some restrictions on absentee ballots as COVID-19 continues to interrupt a variety of state functions. 

The NCSBE anticipates 30-40% of general election ballots to be cast by mail. In a presidential-year general election, officials normally would expect 4-5% of ballots to be submitted by mail, WECT reported

The request includes things such as creating an online portal for absentee voting and establishing a fund to pay for postage for returned absentee ballots. Like the lawsuit, NCSBE recommends removing, reducing, or eliminating the witness requirement in light of social-distancing rules. 

The General Assembly didn’t provide any money for election services in the massive $1.6 billion COVID-19 relief package passed May 2, but legislative leaders said they would address the issue later. 

“While everyone should agree about taking reasonable steps to ensure that COVID-19 doesn’t disrupt elections, the ideas put forward in this lawsuit stray far from the bounds of reasonable precautions,” said Mitch Kokai, senior political analyst at the John Locke Foundation. 

Elias’ involvement leads to questions about the true motives of the lawsuit, Kokai said.

“Marc Elias is a go-to option for Democrats seeking to sway election processes and results in their favor,” Kokai said. 

Elias has played a role in numerous voter related lawsuits and has represented several high profile Democrats. In 2016, Elias was a lawyer for Hillary Clinton’s presidential campaign, and he worked for John Kerry’s presidential campaign in 2004. 

In North Carolina, Elias represented Democratic candidate Dan McCready in the 2018 controversy involving absentee ballot harvesting in the 9th U.S. Congressional District. The Rev. Mark Harris, a Republican, unofficially won the 9th District election, but the elections board twice refused to certify the results because of concerns over irregularities. Leslie McCrae Dowless, a GOP political operative, was indicted on charges of illegal ballot handling and obstruction of justice.

Considering the problems that arose from that election, it makes little sense to call for changes that would open the door to even more fraud and abuse, Kokai said. 

That’s true, McLennan said. 

“Removal of the more stringent requirements could raise questions among voters and political watchers about the possibility of a similar situation happening,” he said. 

The N.C. Department of Justice is reviewing the filings, said Laura Brewer, communications director for the justice department.