Action NC v. Strach, 1:15-cv-1063

Citation216 F.Supp.3d 597
Decision Date27 October 2016
Docket Number1:15-cv-1063
CourtU.S. District Court — Middle District of North Carolina
Parties ACTION NC, Democracy North Carolina, North Carolina A. Philip Randolph Institute, Sherry Denise Holverson, Isabel Najera, and Alexandria Marie Lane, Plaintiffs, v. Kim Westbrook STRACH, Rick Brajer, Kelly Thomas, and Nick Tennyson, Defendants.

Kirk Sigmon, Steven M. Kaufmann, Morrison & Foerster LLP, Catherine M. Flanagan, Sarah E. Brannon, Project Vote, Dorian L. Spence, Lawyers' Committee for Civil Rights under Law, Washington, DC, Matthew M. D'Amore, Joshua R. Stein, Marta A. Godecki, Morrison & Foerster LLP, Naila S. Awan, Stuart C. Naifeh, Demos, New York, NY, George E. Eppsteiner, Allison Jean Riggs, Southern Coalition for Social Justice, Durham, NC, for Plaintiffs.

Alexander McClure Peters, James Bernier, Jr., Lauren M. Clemmons, Kathryne E. Hathcock, Michael T. Wood, N.C. Department of Justice, Patrick D. Lawler, Smith Anderson Blount Dorsett Mitchell & Jernigan, L.L.P., Thomas A. Farr, Michael Douglas McKnight, Phillip John Strach, Regina W. Calabro, Ogletree Deakins Nash Smoak & Stewart, P.C., Raleigh, NC, Amy M. Pocklington, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Richmond, VA, for Defendants.

MEMORANDUM OPINION

LORETTA C. BIGGS, District Judge

On December 15, 2015, Plaintiffs, Action NC, Democracy North Carolina, and North Carolina A. Philip Randolph Institute ("Organizational Plaintiffs"), and Plaintiffs Sherry Denise Holverson, Isabel Najera, and Alexandria Marie Lane ("Individual Plaintiffs") commenced this action seeking declaratory and injunctive relief, alleging violations of Sections 5 and 7 of the National Voter Registration Act, ("NVRA" or the "Act"). Named as Defendants are Kim Westbrook Strach, in her official capacity as Executive Director of the North Carolina State Board of Elections ("SBE"), Rick Brajer, in his official capacity as Secretary of the North Carolina Department of Health and Human Services ("DHHS"), Kelly Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles ("DMV"), and Nick Tennyson, in his official capacity as Secretary of the North Carolina Department of Transportation ("DOT") (collectively, "Defendants").

Defendant Strach filed her Answer and a Motion to Dismiss, and the remaining Defendants ("Agency Defendants") filed their Answer and a Motion to Dismiss. (ECF Nos. 27, 28, 30, 31.) Before the Court are Defendant Strach's Motion to Dismiss, Agency Defendants' Motion to Dismiss, (ECF Nos. 28, 31), and Plaintiffs' Motion for Preliminary Injunction, (ECF No. 34). The United States filed a Statement of Interest on behalf of the Department of Justice ("DOJ"), which the Court has considered.1 (See ECF No. 84.) For the reasons that follow, Defendants' Motions are denied and Plaintiffs' Motion is granted in part and denied in part.

I. THE NATIONAL VOTER REGISTRATION ACT

Recognizing that the right to vote is a fundamental right, Congress, in 1993, passed the NVRA "to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office." 52 U.S.C. § 20501(b)(1) ; Project Vote/Voting for Am., Inc. v. Long , 682 F.3d 331, 334 (4th Cir. 2012) ("The NVRA reflects the view of Congress that the right to vote ‘is a fundamental right.’ " (quoting 52 U.S.C. § 20501(a)(1) )). The Act requires states to provide at least three ways for citizens to register to vote for federal elections: (1) as part of the application, renewal, or change of address for a driver's license or similar identification; (2) by mail; and (3) through state-designated voter registration agencies. See 52 U.S.C. §§ 20504 –20506 ; Young v. Fordice , 520 U.S. 273, 275, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997). Section 4(a) of the Act identifies a state's general obligation to "establish procedures" for voter registration in each of these circumstances.2 52 U.S.C. § 20503(a). Further, the NVRA sets forth detailed requirements regarding voter registration through each of the following three methods: Section 5 covers voter registration in connection with certain state motor vehicle transactions, often referred to as "motor voter" registration; Section 6 covers voter registration by mail-in application; and Section 7 covers voter registration in connection with transactions for public assistance, disability services, and services provided by other designated agencies. Id. §§ 20504 –20506. At issue in this case are motor voter registration under Section 5 and agency-based registration under Section 7.

A. Section 5

Section 5 provides that "[e]ach State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application." 52 U.S.C. § 20504(a)(1). Further, Section 5 provides that a voter registration application shall be integrated with the driver's license application. If an applicant is already registered to vote, a driver's license application or renewal must include the opportunity to update the registrant's existing voter registration. Id. § 20504(a)(2). In addition, a change of address form submitted for driver's license purposes must also serve as notification of a change of address for voter registration, absent a written declination by the registrant. See id. § 20504(d). Section 5 also requires that each State's motor vehicle authority transmit the completed voter registration portion of an application for a driver's license to the appropriate election official within ten days. Id. § 20504(e).

B. Section 7

Section 7 of the NVRA requires states to designate public assistance agencies and disability services offices as agencies providing voter registration services, without exception. Specifically, the Act requires that states must designate as voter registration agencies ("VRAs") all offices in the state that provide (1) public assistance, or (2) state-funded programs primarily serving persons with disabilities. 52 U.S.C. § 20506(a)(2)(A)(B).

Section 7 prescribes what these designated VRAs must do. Section 7(a)(4) requires all designated VRAs to distribute voter registration application forms, offer assistance in completing such forms, and accept and timely transmit completed registration forms to appropriate state election officials. 52 U.S.C. § 20506(a)(4)(A). Under Section 7(a)(6), VRAs "that provide [ ] service or assistance in addition to conducting voter registration" must also "distribute with each application for such service or assistance, and with each recertification, renewal, or change of address ... the mail voter registration application form" unless "the applicant, in writing, declines to register to vote." Id. § 20506(a)(6)(A). Section 7(a)(6) also requires that these VRAs provide their clients with a voter preference form that, among other things, provides the opportunity to record in writing a client's desire to register to vote or decline the opportunity to register. Id. § 20506(a)(6)(B). For a client who wishes to register to vote, Section 7(a)(6) requires VRAs to provide not only general assistance, but "the same degree of assistance with regard to the completion of the registration application form as is provided by the office with regard to the completion of its own forms, unless the applicant refuses such assistance." Id. § 20506(a)(6)(C).

II. THE COMPLAINT

The Complaint in this action was filed by Individual Plaintiffs and Organizational Plaintiffs. The Individual Plaintiffs are citizens and residents of North Carolina who allege that in the 2014 election they were denied the right to have their votes counted. (ECF No. 1 ¶¶ 32, 35, 37.) Specifically, each Individual Plaintiff alleges that in 2014 she (a) went to the DMV and applied for a driver's license or change of address; (b) either requested to update her voter registration information or answered "yes" when asked if she wished to register; (c) attempted to vote in the November 2014 election but was told that she was not on the voter registration rolls; and (d) was allowed to submit a provisional ballot but later learned that the ballot was not counted. (Id. ¶¶ 33, 36, 38.) Individual Plaintiffs further allege that their ballots were not counted because of DMV's failure to comply with the NVRA by not transmitting their voter registration and/or their change of address information to the SBE as required by Section 5 of the Act. (Id. )

The Organizational Plaintiffs are non-profit organizations that provide voter registration and other services to low income individuals. (Id. ¶¶ 22, 25, 28.) They allege, among other things, that Defendants have violated Sections 5 and 7 of the NVRA because (a) DMV is failing to submit voter registration information to SBE after in-person covered transactions, (id. ¶ 11); (b) public assistance agencies are failing to register eligible voters during in-person transactions, (id. ¶ 8); and (c) both DMV and public assistance agencies are failing to meet the mandate of NVRA with regard to registering eligible voters during remote transactions, (id. ¶ 14). Organizational Plaintiffs also allege that because of the Defendants' failure to comply with both Sections 5 and 7 of the NVRA, they have been forced to divert limited resources to assist voters with registrations that should have been accomplished through DMV or the public assistance agencies and therefore have been unable to conduct other activities important to their respective missions. (Id. ¶ 31.) Plaintiffs seek injunctive relief that requires, among other things, Defendants to develop, implement, and enforce practices and policies to ensure compliance with Sections 5 and 7 of the Act.3 (Id. at 34–35.)

Defendant Strach is the Executive Director of the SBE and is responsible for, among other things, the...

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