WASHINGTON, D.C. — On Friday, Sept. 9, the Republican National Committee (RNC), the North Carolina Republican Party and the chairwoman of the Clay County Republican Party filed a lawsuit challenging North Carolina State Board of Elections (NCSBE) guidance extending the absentee ballot receipt deadline and regulating partisan poll observers. Absentee ballots in North Carolina are due three days after Election Day. Because the deadline this year falls on Nov. 11, which is Veterans Day, a state and federal holiday, the board of elections extended the deadline from Nov. 11 to the next business day, which is Nov. 14. The plaintiffs also challenge the four-hour, one observer rule for poll observers, which requires at-large partisan election observers — party-designated observers who are permitted to attend any polling place on Election Day — to spend a minimum of four hours at a given polling site on Election Day and only permits one at-large observer to be present at a time. The plaintiffs claim that the implementation of such a restriction violates the plaintiffs’ “substantive and procedural due process rights, in that they deprive Plaintiffs of life, liberty, or property.” The plaintiffs are challenging these rules, stating that the NCSBE and its executive director do not have the authority to change the ballot receipt deadline or the election observer rules.
The complaint invokes a version of the radical independent state legislature (ISL) theory by arguing that the authority to set federal election rules lies solely with the North Carolina General Assembly. Under the ISL theory, the plaintiffs allege that the NCSBE’s guidance allowing three more days to return absentee ballots “usurps the General Assembly’s authority.” The plaintiffs further allege that the four-hour, one observer mandate violates the Elections Clause of the U.S. Constitution by altering the manner in which elections are administered is outside the NCSBE’s authority and it also “harms the RNC and NCGOP because Republican party observers will be improperly restricted from observing the election process as ‘[they] may desire.’”