Suit: Dem-Run Election Board’s Mail-In Ballot Rule Breaks NC Law

Guidance on mail-in ballot envelopes issued by North Carolina’s Democrat-controlled election board violates state law, a legal challenge filed Tuesday alleges.

Brought by the Republican National Committee, North Carolina GOP, and a state resident, the lawsuit alleges that the rules put forward by the North Carolina State Board of Elections (NCSBE) governing absentee ballot security envelopes contradict statutory requirements approved by the state general assembly. Individual members of the NCSBE are named as defendants in the suit.

At issue is a 2021 memo issued by the board to local election officials that plaintiffs argue “undermines the protections afforded by the General Assembly’s carefully drafted absentee-voting statutes.”

Under North Carolina law, an absentee elector is mandated to place his completed ballot — which, according to the lawsuit, must satisfy “several statutorily prescribed requirements” — in a “container-return envelope.” After the voter “securely seal[s]” his container-return envelope “or ha[s] this done in [his] presence,” the container-return envelope must be signed by the voter and two witnesses or one notary public before it can be submitted to his local election board for tabulation.

According to plaintiffs, the 2021 memo sent to local officials by the NCSBE allegedly “conflicts with several provisions” of state law governing this process. Specifically, they claim the board’s directive “advises county boards of elections that an absentee ballot may be counted even if it is not submitted in a sealed container-return envelope.”

“[A]ccording to pages 3 and 4 of the Numbered Memo, county boards of elections should count an absentee ballot even if the ballot is not received in a sealed container-return envelope, so long as the ballot is received in some other sealed envelope,” the lawsuit reads. But neither of the North Carolina laws relevant to this matter “even mentions an outer return envelope, much less provides that if an outer return envelope is sealed, the container-return envelope in which the absentee ballot is stored need not be sealed.”

“To the contrary, both statutes expressly provide that ballots must be placed in the container-return envelope which, in turn, must be sealed,” it added.

Plaintiffs submitted a request for a declaratory ruling to the NCSBE on May 20, arguing the board’s guidance contradicts the requirements specified by state law. The board subsequently responded in a ruling on Aug. 2, in which it claimed its directive governing container-return envelopes “is the correct application of the law.”

“This decision by the NCSBE is inconsistent with state law and diminishes protections for absentee ballots,” RNC Chair Michael Whatley said in a statement. “State law lays out clear requirements, and the NCSBE must follow them — we will continue to fight for election integrity in the Old North State.”

Plaintiffs have requested that the Wake County Superior Court reverse the NCSBE’s declaratory ruling on container-return envelopes “and/or enter a declaratory judgment” mandating that all laws on the matter must be followed as written. They also asked the court to issue a preliminary and permanent injunction requiring the state board to “immediately notify” local election boards of these requirements and to “[r]escind or delete all parts of the Numbered Memo that state or in any way imply that an absentee ballot received by a county board of elections may be counted even if the absentee ballot” does not meet such requirements.