North Carolina: COVID-19 Litigation

The Southern Coalition for Social Justice, Fair Elections Center, and pro bono counsel from the law firm Wilmer Hale filed a lawsuit demanding North Carolina take the necessary steps to guarantee a fair, safe election in November 2020, given the likelihood that the state and the country would still be experiencing the effects of the COVID-19 pandemic. The suit was filed on behalf of Democracy North Carolina, the League of Women Voters of North Carolina and eight individual voters.

Defendants of the suit, filed in the U.S. Middle District of North Carolina, include the North Carolina State Board of Elections, the North Carolina Department of Transportation and the North Carolina Department of Health and Human Services as well as leaders of the three organizations in their official capacities.

The plaintiffs asked the Court to take immediate action including:

Waiving the requirement that voter registration applications be submitted at least 25 days before the election.
Making it easier to request and submit an absentee ballot, including waiving the witness requirement and allowing absentee ballots to be requested via phone, email or online.
Creating a process for absentee ballots to be submitted in a manner other than by mail, such as contactless drop boxes where they could be delivered.
Making in-person voting safer, including loosening restrictions on poll worker recruitment, creating greater flexibility in early voting sites and providing personal protective equipment to all precinct workers.

In August 2020, the court partially granted the plaintiffs’ request by ordering the defendants to implement procedures by which voters could be notified of and correct disqualifying defects in their mail ballots. It also ordered the defendants to permit one plaintiff to vote with the assistance of nursing home staff, which North Carolina law forbids.

Following the court’s ruling and a settlement agreement in a state court proceeding brought by other plaintiffs, the North Carolina State Board of Elections issued a memo outlining the cure process to be used in processing mail ballots. The state legislature, the President’s political campaign, the Republican National Committee, Congress members, and individual voters then filed two lawsuits in federal court to block enforcement of the process. The cases eventually reached the United States Supreme Court, where the Democracy North Carolina plaintiffs filed an amicus brief. The Supreme Court denied their request and the procedures remained in place for the November 2020 election.

The plaintiffs have since amended their complaint to continue pushing for an order requiring the defendants to put in place a permanent set of procedures for curing defective mail ballots, and to bring state law in compliance with Section 208 of the Voting Rights Act, which entitles people who require assistance voting by reason of blindness, disability, or inability to read or write to receive that assistance from a person of their choice.