Skip Navigation
Analysis

In Victory for Voting Rights, Judge Permanently Blocks North Carolina Purge Loophole

Officials can’t avoid federal protections for purges by calling them challenges

  • Jonathan Brater
August 9, 2018

A federal judge yester­day perman­ently blocked elec­tion offi­cials in North Caro­lina from remov­ing “chal­lenged” voters from the rolls en masse without feder­ally mandated protec­tions.

At issue was a provi­sion of state law that permits one voter to chal­lenge another’s regis­tra­tion, a provi­sion that activ­ist groups used to try to disen­fran­chise thou­sands of voters in three North Caro­lina counties before the 2016 elec­tion. The chal­lenges were filed and processed in large batches, making the activ­ity tantamount to a voter purge — the often-flawed process by which elec­tion offi­cials remove large numbers of voters from regis­tra­tion lists. 

In Novem­ber 2016, federal district court Judge Loretta Biggs issued a prelim­in­ary injunc­tion against the prac­tice after the North Caro­lina NAACP and others brought suit, saying that it likely viol­ated the National Voter Regis­tra­tion Act of 1993 (NVRA). 

During a hear­ing on the prelim­in­ary injunc­tion, Judge Biggs said she was “horri­fied” by the “insane” process in which voters were disen­fran­chised without their know­ledge. The law allows indi­vidu­als to easily file hundreds or even thou­sands of chal­lenges at the same time, with little evid­ence to support the claims. In many cases, a piece of returned mail was the only basis. “This looks like some­thing that was put together in 1901,” she said, refer­ring to the state’s Jim Crow laws.   

Judge Biggs recog­nized that call­ing the process a “chal­lenge” does­n’t exempt voters from federal protec­tions. A voter purge by any other name smells just as fishy. 

Wednes­day’s order perman­ently blocks the removals unless the voter is given notice and a wait­ing period, and unless the removals happen at least 90 days before federal elec­tions. Although the ruling was not a surprise given the history of the case, it does provide some insights on how care­less voter purges can affect voters and how the law — if enforced — can protect them.

Here are three insights from the order:

1. Import­ant federal protec­tions against voter purges remain.

Many expressed concern at the Supreme Court’s June decision in Husted v. A. Philip Randolph Insti­tute, which upheld Ohio’s contro­ver­sial prac­tice of using fail­ure to vote in a single elec­tion to initi­ate a purge process. The decision allows voters to be purged when there is not a strong basis for determ­in­ing ineligib­il­ity, as the Bren­nan Center and the League of Women Voters noted in an amicus brief. Nonethe­less, as the North Caro­lina decision shows, the decision was not a green­light to purge at will. 

One crit­ical safe­guard is the require­ment of a notice and a two-elec­tion wait­ing period before voters can be considered to have moved and there­fore be deleted from the rolls. Husted expressly upheld this require­ment, and Judge Biggs cited the case for that propos­i­tion. An Indi­ana federal judge blocked a state law (which uses the Crosscheck program to imme­di­ately purge voters) on the same basis only days before the Court issued its Husted ruling. 

Another protec­tion is the require­ment that system­atic purges — ones that remove large numbers of voters without mean­ing­ful indi­vidu­al­ized inquiry — must be completed at least 90 days before an elec­tion. This is crit­ical to allow voters time to catch and correct errors.

2. Laws that allow chal­lenges to voter regis­tra­tion are prone to abuse.

Although the order will prevent mass chal­lenges without proper protec­tions, “chal­lenger” laws remain vulner­able to abuse in North Caro­lina and the 14 other states that have them. (Many more also allow chal­lenges at the polls.) Although these laws are designed with indi­vidual cases in mind, the North Caro­lina incid­ent shows how they can be abused to conduct voter purges without adher­ing to the require­ments of federal law. Hancock County, Geor­gia, tried some­thing similar before being chal­lenged in court. Elec­tion offi­cials in Color­ado and Iowa have also tried to use a chal­lenge process to purge large numbers of voters.  

These efforts have either been rebuffed or aban­doned when ques­tioned, but the meth­ods remain in place. Allow­ing one citizen to chal­lenge another’s voter regis­tra­tion, with little or no evid­ence, and then forcing the chal­lenged voter to re-prove their eligib­il­ity — when they have already gone through the process of regis­ter­ing to vote — is unfair and vulner­able to abuse. 

3. Activ­ist groups threaten voting rights but can be thwarted.

The North Caro­lina case also shows the damage “voter integ­rity” activ­ists can cause when unchecked. A few self-appoin­ted voter fraud vigil­antes almost deprived thou­sands of their voting rights. 

These organ­iz­a­tions have pres­sured hundreds of counties nation­wide to aggress­ively purge their rolls, some­times prob­lem­at­ic­ally. In Noxu­bee County, Missis­sippi, two of these groups success­fully forced an aggress­ive purge after the county could not marshal the resources to defend itself. Yet, when these groups meet resist­ance, such as in Broward County, Flor­ida, they are far less success­ful.   

This is exactly what happened in North Caro­lina. When the chal­lenges them­selves were chal­lenged in court, they could not with­stand legal scru­tiny. Yester­day’s ruling is a reminder that vigil­ance is neces­sary and fight­ing for voting rights can pay off. 

(Image: Sergey Tinyakov/Shut­ter­stock.com)