Military and overseas voters whose votes are set to be thrown out in the long-running dispute over North Carolina’s 2024 state supreme court race have filed a new lawsuit alleging a series of constitutional violations. Harvard Law School’s Election Law Clinic is part of the team of attorneys representing these voters. Here are some excerpts from the complaint:

This case seeks to avert an unprecedented effort to change the results of a statewide election by discarding up to 5,509 votes from military and overseas voters five months after their votes were cast, confirmed, and counted. Those voters, drawn from a selectively targeted subset of four counties, did everything election officials told them to do to successfully vote in 2024. But their vote in one race is in jeopardy because the losing candidate has completed his campaign to force state election officials to retroactively invalidate their votes. The need for federal court intervention to prevent such a grave subversion of the democratic process is urgent. . . .

Now, nearly five months after the votes were cast and counted (and twice recounted), the state of North Carolina has acquiesced in an unprecedented effort to reverse this outcome. At Griffin’s behest, the North Carolina Court of Appeals has ordered the North Carolina State Board of Elections (“NCSBE”) to declare up to 5,509 votes cast by eligible, qualified voters as presumptively invalid.

These voters all registered to vote, cast their ballots, and had those ballots counted under the settled—and widely communicated—rules in place prior to and at the time of the 2024 elections. Specifically, they are overseas civilian and military voters who voted in accordance with the provisions of Article 21A, Chapter 163 of the North Carolina General Statutes, the Uniform Military and Overseas Voters Act (“UMOVA”). . . .

The U.S. Constitution prohibits North Carolina from retroactively applying novel election rules articulated months after the 2024 election to arbitrarily disenfranchise eligible, qualified voters like Plaintiffs. Voters relied on election officials to maintain and enforce lawful election rules, and they relied on election officials’ assurances that they had fulfilled all applicable requirements to register and to vote in the Seat Six election. Articulating new rules months after the votes were counted, and then retroactively applying those rules to overturn the democratic choice of the voters, deprives Plaintiffs of their fundamental rights to vote and to due process, which “protects the right of qualified citizens to vote and to have their votes counted as cast.” Hendon v. N. Carolina State Bd. of Elections, 710 F.2d 177, 180 (4th Cir. 1983) (emphasis added).

Moreover, the NCSBE’s selective application of new vote counting rules to Plaintiffs and other similarly situated voters violates the U.S. Constitution’s Equal Protection Clause. The NCSBE has presumptively invalidated votes cast by Plaintiffs and other overseas and military voters who voted absentee in up to four Democratic-voting counties—Buncombe, Guilford, Durham, and Forsyth—but not votes cast by similarly situated voters who voted absentee in North Carolina’s other 96 counties. This “arbitrary and disparate treatment in the valuation of one person’s vote in relation to another’s” cannot stand. Wise v. Circosta, 978 F.3d 93, 100 (4th Cir. 2020) (emphasis added).