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Inside The Case: Why Federal Judge Reinstated Thousands Of Voter Registrations

Erik (HASH) Hersman

A federal judge late Friday ordered North Carolina to reinstate thousands of voter registrations that were canceled within the past three months. The North Carolina NAACP sued over the cancellations in three counties in the eastern half of the state. WFAE's Michael Tomsic has been covering the case and joined Nick de la Canal for analysis.

Remind us the backstory here.

A handful of private citizens challenged thousands of voter registrations. Essentially, they went fishing with mail and saw what came back undeliverable. The two people who handled almost all the challenges are tied to the Voter Integrity Project, a small group in Raleigh that's been criticized for how it tries to prevent voter fraud.

The court record is unclear on exactly how many of those challenges were successful, but the judge estimates at least 3,400.

What did the judge say about those cancellations?

Judge Loretta Biggs ruled, "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."

That federal law specifies what states can and can't do when it comes to voter registrations. North Carolina's attorneys had argued there was no violation because there was no state action - it was private citizens driving the process. But Judge Biggs pointed out regardless of who starts the challenge, it's the county boards of election under the state that ultimately remove a voter from the rolls.

So you can't have a systematic removal of voters within three-months of the election. But if the challenges had happened earlier this year, would they be OK?

Based on Judge Biggs' ruling, no. She references another part of the National Voter Registration Act that requires states to wait two federal elections before canceling a registration. That's two elections after the state tries to get in touch.

In some of these cases, the time from the first mailing to cancellation was only a few months.

And as we reported after the court hearing this week, Judge Biggs also had questions about relying on those mailings as the only evidence.

She asked attorneys for the state and county boards about that again and again: what other evidence besides unreturned mail were you going off of? The answer, for the most part, was no other evidence. The county would hold two hearings, but the voters almost never showed up.

An attorney for the North Carolina NAACP put it this way: the right to vote should not depend on responding to mass mailings from a private party. Judge Biggs was clearly concerned about the possibility that some voters had no idea they had been challenged. "Voter enfranchisement cannot be sacrificed when citizens through no fault of their own have been removed from the voter rolls," she wrote. 

Most other states also allow private citizens to challenge registrations. What does this mean for them?

That was a key part of North Carolina's argument: Judge Biggs would set a new standard here. A couple points on that:

First, this was not a final ruling in the case, but what in legalese is called a preliminary injunction. Basically, it's when a judge says those suing are likely to succeed in their argument, so they deserve changes before the whole thing plays out.

Second, there's room even with Judge Biggs' order for private challenges to still happen. They just can't rise to the level of a systematic purge within three months of the election. And if they're only based on undeliverable mail, counties have to wait two federal elections before crossing the voter off.

Is there much history with private challenges rising to this level in North Carolina?

Not based on the court arguments this week. The Moore County elections director said in her 30-year career, she had never seen these kinds of large-scale challenges until recently.

The original idea of private challenges was that someone would have personal information about someone else. But today, anybody can download voter rolls - and with enough data mining expertise and postage stamp money - file thousands of challenges against people they've never met. In court, attorneys and officials with county boards of elections said they have concerns with how this has evolved.

Nick de la Canal is a reporter for WFAE covering breaking news, arts and culture, and general assignment stories. His work frequently appears on air and online. Periodically, he tweets: @nickdelacanal