A federal judge today ordered North Carolina election officials to reinstate the voting rights of thousands of voters, many of them African American, who were illegally purged from the rolls just weeks before Election Day.
More than 4,000 North Carolina voters had their voter registration canceled in recent weeks after a handful of Republican activists filed coordinated challenges against them, using mass mailings that were returned as undeliverable to argue that voters no longer lived in the county and were ineligible to vote.
“There is little question that the County Boards’ process of allowing third parties to challenge hundreds and, in Cumberland County, thousands of voters within 90 days before the 2016 General Election constitutes the type of ‘systematic’ removal prohibited by the (National Voter Registration Act),” wrote U.S. District Judge Loretta C. Biggs.
In North Carolina, any voter can challenge someone in his or her county’s right to vote up to 25 days before an election. A random citizen can present a single piece of returned mail to a local election board as evidence that a voter has changed addresses and is now ineligible to vote. That triggers a whole process in which a challenged voter has to prove that he or she lives in the county and is qualified to vote.
After an individual presents the returned mail to an election board, the board sends a letter to the challenged voter’s address explaining why his or her right to vote is in jeopardy and gives the person the time and place of an in-person hearing, where he or she can give an explanation. If a voter doesn’t attend the hearing – or doesn’t submit an affidavit to the board swearing he or she lives in the county – the voter registration is canceled.
A handful of North Carolina Republicans in Cumberland, Moore and Beaufort counties jumped on this challenge process and sent mass mailings, some of which read “Do not Forward,” to thousands of registered voters. In Beaufort County, four people – including two 2015 candidates for local office – filed challenges against 138 registered voters. Their only basis for these challenges was a mass campaign mailer sent out in 2015 that was returned from these voters’ addresses as undeliverable.
The NAACP filed a lawsuit earlier this week seeking to reinstate the registrations of these purged voters, saying the last-minute challenges violated the National Voter Registration Act. That law says voter registrations can be canceled only if a voter either confirms the residence change in writing or is given a notice and then fails to respond or vote for two federal election cycles. It also prohibits all systemic voter removal programs within 90 days of a federal election.
In many cases in North Carolina, voters who were purged still live at the addresses where they are registered to vote or have moved within the county, according to the NAACP complaint.
“This emergency injunction will help make sure not a single voter’s voice is unlawfully taken away,” said the Rev. William Barber II, president of the North Carolina NAACP. “The NAACP is defending rights of all North Carolinians to participate in this election and we will not back down and allow this suppression to continue. This is our Selma.”
Earlier this week, Judge Biggs called North Carolina’s voter challenge law an “insane” remnant of the past, but the Tar Heel State is hardly alone. Forty-six states have laws that allow private citizens to challenge someone’s right to vote on or before Election Day, according to a report in 2012 by the Brennan Center for Justice, a nonpartisan public policy institute.
Thirty-nine states allow random citizens to contest a person’s right to vote at the polls on Election Day. Of those states, at least 24 don’t require a challenger to provide any evidence that the voter shouldn’t be voting.
That’s led to Election Day mayhem in the past.
In May 2011, poll-watchers in Massachusetts with ties to local tea party groups reportedly targeted Latino voters for challenges during a primary election. Dozens of challenges were filed, creating an environment so tense that some local polling officials refused to work the following election “after feeling stressed by the outside groups during the primary,” according to the report.
Twenty-eight states, including North Carolina and Georgia, allow private citizens to challenge registered voters before an election, but in only eight states must citizens identify a specific reason for bringing a challenge.
The report found that these challenge laws have historically been used to target minorities, students and people with disabilities.
“Over the past several election cycles, challengers have stationed themselves at polling places in predominantly African-American and Latino neighborhoods, on university campuses, and even near residential mental health care facilities to contest the eligibility of voters who live in these areas,” according to the report. “These patterns reveal a heightened focus on challenging specific groups of new and vulnerable voters.”
Many of these challenge laws were enacted decades ago specifically to suppress the vote of African Americans and women. Virginia, for example, passed its first challenger law right after Reconstruction, along with poll taxes and literacy tests that were aimed at newly freed slaves, according to the report. Florida, Ohio and Minnesota also passed challenge laws in the late 19th century to discourage voting in black communities.
Even in states where these laws weren’t created with an obviously discriminatory intent, the report found that “political operatives still often used challenges to discriminate against newly enfranchised groups of voters.”
The Brennan Center’s report said lawmakers should ban private citizens from challenging voters at the polls on Election Day. Some states, such as Alabama, Ohio and Texas, already have repealed laws that allow private citizens to challenge voters at the polls. Pre-election challenges are a better option, according to the report, but challengers should be required to provide reliable evidence about why a voter is ineligible. And finally, voters should be shielded from frivolous challenges and be given plenty of time to correct any inconsistencies in their voter registration before Election Day, the report said.
In North Carolina, lawyers for the state defended the voter purges this week, saying only a fraction of the millions of registered voters in the state have had their voter registrations canceled.
But Harry Watson, a professor of history and an expert on Southern culture at the University of North Carolina at Chapel Hill, says that while these challenges affected only a few thousand voters, that can be huge in a swing state such as North Carolina.
“The implication of suppressing just a few votes in North Carolina can have very huge national consequences,” Watson said in an interview with Reveal from The Center for Investigative Reporting. “The reason is that President (Barack) Obama won all the electoral votes in this state in his first election by only a few thousand votes. It was the narrowest margin of any of the states. He lost North Carolina in 2012 by the narrowest margin of any of the states. So in that context, having just a few votes be suppressed could make a huge difference.”