Anderson v. N.C. State Bd. of Elections

Decision Date21 June 2016
Docket NumberNo. COA14–1369.,COA14–1369.
Citation788 S.E.2d 179,248 N.C.App. 1
Parties Stella ANDERSON, Pam Williamson, Marianne Clawson, Alaina Doyle, Lauren Larue Joyner, Ian O'keefe, and David Sabbagh, Petitioners v. The NORTH CAROLINA STATE BOARD OF ELECTIONS, Respondent.
CourtNorth Carolina Court of Appeals

Bailey & Dixon, LLP, by and William R. Gilkeson, Jr., Raleigh, for petitioner-appellees.

Attorney General, Roy Cooper, by Special Deputy Attorney General, Katherine A. Murphy, for respondent-appellant.


Respondent North Carolina State Board of Elections ("the Board") appeals from the superior court's order requiring it to adopt an early voting plan in Watauga County that included at least one site on Appalachian State University's campus during the 2014 general election. Because we hold that this appeal is moot, it must be dismissed.

I. Background

Pursuant to our General Statutes, registered voters in North Carolina may, as an alternative to voting in person at their assigned precincts on Election Day, vote by mail-in absentee ballot. N.C. Gen.Stat. §§ 163–226, –227.2 (2015). Registered voters may also cast ballots through a procedure called "one-stop absentee voting," which is also known as "early voting." Id. § 163–227.2 (2015).

From 2006 until its 2013 municipal election, Watauga County elections included an early voting and an Election–Day voting site in Boone on the Appalachian State University campus ("ASU"). Subsequently, the Watauga County Board of Elections ("WCBOE") made numerous changes and departed from the customary voting sites. Specifically, the early voting plan for the 2014 primary did not include any Boone site other than the required site at the WCBOE office and four sites located in rural parts of Watauga County

On 23 July 2014, the WCBOE met to adopt an early voting plan. (R. p. 1112 ) The three-member board submitted two early voting plans for the 2014 general election. One plan included an early voting site on ASU campus ("minority plan") and the other plan, ("the majority plan") had five sites but did not include an early voting site on ASU's campus. Although the WCBOE voted on the competing proposals, they did not reach a unanimous agreement on an early voting plan for Watauga County.

N.C. Gen.Stat. § 163–227.2(g) provides that

[i]f a county board of elections ... has been unable to reach unanimity in favor of a Plan, a member or members of that county board of elections may petition the State Board of Elections to adopt a plan for it. If petitioned, the State Board may also receive and consider alternative petitions from another member or members of that county board. The State Board of Elections may adopt a Plan for that county. The State Board, in that plan, shall take into consideration factors including geographic, demographic, and partisan interests of that county.

N.C. Gen.Stat. § 163–227.2(g) (2015). At the time of the 2014 general election, subsection 163–227.2(g) further provided that the Board could make available a plan that did not offer early voting at the county board of elections office, but "only if the Plan include[d] at least one site reasonably proximate to the county board of elections office and the ... Board [found] that the sites in the Plan as a whole provide[d] adequate coverage of the county's electorate." Id. § 163–227.2(g) (2014).

Since the WCBOE members were unable to adopt a unanimous early voting plan, they petitioned the Board to adopt a plan for Watauga County pursuant to subsection 163–227.2(g). As a result, the competing proposals for the minority and majority plans were submitted for the Board's consideration. After the Board considered proposals at a 21 August 2014 hearing, it adopted the WCBOE's majority plan without significant changes. On 29 August 2014, the Board memorialized its decision in a form letter addressed to the WCBOE's Director.

On 19 September 2014, seven registered voters in Watauga County ("Petitioners") filed a Petition for Judicial Review in Wake County Superior Court. The petition requested that the superior court determine whether the Board abused its discretion by adopting the majority plan for Watauga County, and it was filed pursuant to N.C. Gen.Stat. 163–22(l ), which provides:

Notwithstanding any other provision of law, in order to obtain judicial review of any decision of the State Board of Elections rendered in the performance of its duties or in the exercise of its powers under this Chapter, the person seeking review must file his petition in the Superior Court of Wake County.

N.C. Gen.Stat. § 163–22(l ) (2015). Petitioners alleged that the Board made no findings to explain how it took the geographic, demographic, and partisan interests of Watauga County into consideration. They also alleged that the Board violated Article I, Section 19 and Article VI, Section I of the North Carolina Constitution and the 14th and 26th Amendments to the United States Constitution by erecting barriers for voters aged 18 to 25. Based on these allegations, petitioners asked the court to remand the majority plan to the Board to enter findings and explain its bases for adopting it.

In response, the Board filed a motion to dismiss the petition on seven enumerated grounds, the majority of which challenged the trial court's subject matter jurisdiction to hear and rule on the petition. According to the Board, the petition was improperly brought because it did not seek judicial review of either a "contested case" brought under Chapter 150B of North Carolina's General Statutes or a decision of the Board "made in its quasi-judicial capacity under Chapter 163 of the General Statutes." Rather, the Board contended, the petition impermissibly sought review of the Board's decision, which was made pursuant to subsection 163–227.2(g) and "in its supervisory capacity over the [WCBOE]." After conducting a hearing on the Board's motion, the superior court entered an order on 13 October 2014. The order concluded that "[u]nder the unique circumstances of this case, [the Board's] early voting plan for [Watauga County was] subject to review by the Wake County Superior Court under [subsection] 163–22(l )." After reviewing the entire record before it, the superior court could find "no other intent from [the WCBOE's majority plan] other than to discourage student voting," and as a result, the court concluded that the plan "r[ose] to the level of a constitutional violation of [students'] right to vote." The superior court's order also denied the Board's motion to dismiss in its entirety and remanded the case for the Board to adopt an early voting plan for Watauga County for the 2014 November general election that included at least one voting site on the ASU campus. The Board appeals.

II. Analysis
A. Mootness and the Generally Applicable Law

Since the 2014 election is over and petitioners were granted the relief they sought, we must address whether the issues presented by this appeal are moot.

"A case is ‘moot’ when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." Roberts v. Madison Cnty. Realtors Ass'n, 344 N.C. 394, 398–99, 474 S.E.2d 783, 787 (1996) (citation omitted). For well over a century, our state courts and the federal courts have largely refused to address questions deemed moot. See, e.g., Crawley v. Woodfin, 78 N.C. 4, 6 (1878) ; Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293, 293–94 (1895). While the mootness doctrine has been formulated in different ways, it must be understood as a core concept of justiciability, a general term which refers to whether a legal controversy is "appropriate or suitable" for judicial adjudication. Black's Law Dictionary 696 (9th ed. 2009); see also Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 257, 400 S.E.2d 435, 437 (1991) ("A justiciable issue has been defined as an issue that is ‘real and present as opposed to imagined or fanciful.’ " (quoting K & K Dev. Corp. v. Columbia Banking Fed. Sav. & Loan, 96 N.C.App. 474, 479, 386 S.E.2d 226, 229 (1989) )) (citations omitted). However, whether a moot case is appropriate for judicial disposition may depend largely upon the tribunal that confronts it.

In the federal context, mootness was generally applied as though it were a prudential or discretionary doctrine until the mid-twentieth century. Honig v. Doe, 484 U.S. 305, 330, 108 S.Ct. 592, 608, 98 L.Ed.2d 686, 711 (1988) (Rehnquist, J. concurring) ("[I]t seems very doubtful that the earliest case I have found discussing mootness, Mills v. Green, ... was premised on constitutional constraints[.]"). However, in 1964, The United States Supreme Court recognized mootness as a constitutional limitation on the jurisdiction of federal courts, which pursuant to Article III, Section 2 of the United States Constitution may decide only actual, ongoing cases and controversies. Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394 n. 3, 11 L.Ed.2d 347, 351 n. 3 (1964) ("Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy."). The mootness doctrine is also rooted in the prohibition against advisory opinions. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413, 415 (1971). For these reasons, "Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ " while confining them "to resolving ‘real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ " Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400, 411 (1990) (quoting Rice, 404 U.S. at 246, 92 S.Ct. at 404, 30 L.Ed.2d at 415 ). All told, the constitutional...

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