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

• Docket Number: 1:20CV457
• Decision Date: 10 March 2022
• Citation: 590 F.Supp.3d 850
• Parties: DEMOCRACY NORTH CAROLINA, the League of Women Voters of North Carolina, John P. Clark, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Susan Schaffer, and Walter Hutchins, Plaintiffs, v. The NORTH CAROLINA STATE BOARD OF ELECTIONS, Damon Circosta, in his official capacity as Chair of the State Board of Elections, Stella Anderson, in her official capacity as Secretary of the State Board of Elections, Stacy Eggers IV, in his official capacity as Member of the State Board of Elections, Jeff Carmon III, in his official capacity as Member of the State Board of Elections, Tommy Tucker, in his official capacity as Member of the State Board of Elections, and Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections, Defendants, and Philip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives, Defendant-Intervenors.
• Court: U.S. District Court — Middle District of North Carolina

590 F.Supp.3d 850

DEMOCRACY NORTH CAROLINA, the League of Women Voters of North Carolina, John P. Clark, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Susan Schaffer, and Walter Hutchins, Plaintiffs,

v. The NORTH CAROLINA STATE BOARD OF ELECTIONS, Damon Circosta, in his official capacity as Chair of the State Board of Elections, Stella Anderson, in her official capacity as Secretary of the State Board of Elections, Stacy Eggers IV, in his official capacity as Member of the State Board of Elections, Jeff Carmon III, in his official capacity as Member of the State Board of Elections, Tommy Tucker, in his official capacity as Member of the State Board of Elections, and Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections, Defendants,andPhilip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives, Defendant-Intervenors.

1:20CV457

United States District Court, M.D. North Carolina.

Signed March 10, 2022

Cecilia L. Aguilera, Jonathan L. Sherman, Michelle E. Kanter Cohen, Fair Elections Center, Washington, DC, Rebecca M. Lee, Richard A. Ingram, Wilmer Cutler Pickering Hale and Dorr, LLP, Washington, DC, George P. Varghese, Stephanie Lin, Wilmer Cutler Pickering Hale and Dorr, LLP, Boston, MA, Hilary H. Klein, Jeffrey Loperfido, Mitchell D. Brown, Allison Jean Riggs, Southern Coalition For Social Justice, Durham, NC, Joseph J. Yu, Wilmer Cutler Pickering Hale and Dorr, LLP, New York, NY, for Plaintiffs.

Mary Carla Babb, Neal T. McHenry, Paul M. Cox, Kathryne E. Hathcock, Terence P. Steed, North Carolina Department of Justice, Raleigh, NC, for Defendants North Carolina State Board of Elections, Damon Circosta, Stella Anderson, Jeff Carmon, III, Karen Brinson Bell, Tommy Tucker, Stacy "Four" Eggers, IV.

Nicole Jo Moss, David H. Thompson, Peter A. Patterson, Cooper & Kirk, PLLC, Washington, DC, for Defendant-Intervenors Philip E. Berger, Timothy K. Moore General Counsel Office of Speaker Tim Moore North Carolina House of Representatives 16 West Jones Street, Room 2304 Raleigh, NC 27601.

R. Scott Tobin, Taylor English Duma LLP, Raleigh, NC, Bobby R. Burchfield, Matthew M. Leland, King & Spalding LLP, Washington, DC, for Defendant-Intervenors Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, Republican Party of North Carolina.

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge This matter comes before the court on Defendant-Intervenors Philip E. Berger and Timothy K. Moore's (together, "Legislative Defendants") Motion to Dismiss Plaintiffs’ Fourth Amended Complaint, (Doc. 209), and Defendants the North Carolina State Board of Elections ("State BoE"), Damon Circosta, Stella Anderson, Stacy Eggers IV, Jeff Carmon III, Tommy Tucker, and Karen Brinson Bell's (together, "State Board Defendants") Motion to Dismiss, (Doc. 211). For the reasons that follow, this court will grant in part and deny in part the motions.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs originally brought this suit in May 2020 in anticipation of the 2020 general election, alleging "North Carolina's election code impose[d] numerous restrictions" on voting "that, in light of the COVID-19 pandemic, unduly burden[ed] Plaintiffs’ right to vote in violation of the First and Fourteenth Amendments." (Compl. (Doc. 1) ¶ 3.)¹ Plaintiffs have amended their complaint several times during this litigation, (First Am. Compl. (Doc. 8); Second Am. Compl. (Doc. 30); Third Am. Compl. (Doc. 192)), and have now filed a Fourth Amended Complaint, (Fourth Am. Compl. (Doc. 208)), challenging North Carolina's laws against requesting, marking and completing, and delivering absentee ballots for others, and the absence of a statutory procedure "by which voters ... receive notice and an opportunity to be heard regarding any perceived material errors on their absentee ballot application envelopes," (id. ¶ 1).

A. Parties

Plaintiffs League of Women Voters of North Carolina and Democracy North Carolina (together, "Organizational Plaintiffs") are both nonpartisan organizations dedicated to encouraging voting and voter education. (See id. ¶¶ 6–7.) Individual Plaintiffs John P. Clark, Lelia Bentley, Regina Whitney Edwards, and Robert K. Priddy II are North Carolina citizens who voted by mail-in absentee ballot out of necessity for their health in 2020 and intend to continue voting by mail in future North Carolina elections. (Id. ¶¶ 8–10.) Individual Plaintiff Walter Hutchins is a North Carolina citizen who is legally blind and lives in a nursing home. (Id. ¶ 11.) In the 2020 election, Plaintiff Hutchins "request[ed] and cast a mail-in absentee ballot with the assistance of his wife and his nursing home staff," and "[h]e intends to continue voting in North Carolina's elections, and wants his nursing home staff to continue to help him to vote even if his wife is able to also help him." (Id. ¶ 12.) Individual Plaintiff Susan Schaffer lives in North Carolina and volunteers in assisting people with registering to vote as well as completing absentee ballots. (Id. ¶ 13.)

Defendant State BoE is the executive agency responsible for administering election laws in North Carolina. (Id. ¶ 14.) State Board Defendants are all associated with the State BoE. (Id. ¶¶ 15–20.) Defendant-Intervenor Philip E. Berger is the President Pro Tempore of the North Carolina Senate, and Defendant-Intervenor Timothy K. Moore is the Speaker of the North Carolina House of Representatives. (Id. ¶¶ 21–22.)

B. Changes to North Carolina Absentee Ballot Voting

Since 2001, "North Carolina law has permitted all eligible citizens to vote by mail in all federal and state elections." (Id. ¶ 23.) In November 2019, the North Carolina General Assembly enacted Senate Bill 683, An Act to Amend the Laws Governing Mail-In Absentee Ballots ("S.B. 683"). (Id. ¶ 24.) "SB 683 imposes restrictions on who can assist voters with completing mail-in absentee ballot request forms.... There are also restrictions on who may help return a completed absentee ballot request." (Id. ¶¶ 24–25.) Plaintiffs allege "SB 683 has effectively banned organizations like the Organizational Plaintiffs and individuals like Plaintiff Schaffer from assisting voters with requesting absentee ballots." (Id. ¶ 27.)

C. House Bill 1169

On June 11, 2020, the North Carolina General Assembly passed House Bill 1169, An Act to Make Various Changes to the Laws Related to Elections and to Appropriate Funds to the State Board of Elections in Response to the Coronavirus Pandemic ("H.B. 1169"), signed into law on June 12, 2020, by Governor Roy Cooper, which amended several of North Carolina's election laws in response to the COVID-19 pandemic. 2020 N.C. Sess. Laws 2020-17 (H.B. 1169). Relevant to this lawsuit, H.B. 1169 amended several provisions relating to witness requirements, poll workers, and multipartisan assistance teams ("MATs"). H.B. 1169 added a provision allowing for MATs to assist registered voters in "hospitals, clinics, nursing homes, assisted living or other congregate living situations ...." Id. § 2.(b). H.B. 1169 also expanded voters’ ability to request absentee ballots by making it possible for voters to request absentee ballots online. Id. § 7.(a).

D. Laws at Issue

Plaintiffs challenge several of North Carolina's voting and election laws. Specifically, Plaintiffs challenge N.C. Gen. Stat. §§ 163-230.2, (Fourth Am. Compl. (Doc. 208) ¶¶ 39–40), 163-226.3(a)(1), (4)–(6) and 163-231(b)(1), (id. ¶¶ 59–60), and the absence of a statutory process for curing defective absentee request forms and ballots, (id. ¶¶ 41–54).

1. Absentee Ballot Requests

Plaintiffs challenge several restrictions on how a voter may request an absentee ballot. First, Plaintiffs seek to enjoin restrictions placed on who may assist a voter in filling out and returning an absentee ballot request and how they may assist a voter in doing so (the "Request Assistance Ban").

N.C. Gen. Stat. § 163-230.2(e)(2), (4) restricts who can assist in requesting an absentee ballot and how an absentee ballot request may be returned:

(e) Invalid Types of Written Requests.--If a county board of elections receives a request for absentee ballots that does not comply with this subsection or subsection (a) of this section, the board shall not issue an application and ballots under [N.C. Gen. Stat.] 163-230.1. A request for absentee ballots is not valid if any of the following apply:

....

(2) The completed written request is completed, partially or in whole, or signed by anyone other than the voter, or the voter's near relative or verifiable legal guardian. A member of a multipartisan team trained and authorized by the county board of elections pursuant to [N.C. Gen. Stat.] 163-226.3 may assist in completion of the request.

....

(4) The completed written request is returned to the county board by someone other than a person listed in subsection (c) of this section,^{[2 ]} the United States Postal Service, or a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2).

This law has been in effect since January 1, 2020. 2019 N.C. Sess. Laws 2019-239 (S.B. 683) § 1.3(a).

H.B. 1169 also provides that a MAT may "assist any voter in the completion of a request form for absentee ballots or in delivering a completed request form for absentee ballots to the county board of elections and may serve as a witness for the casting of absentee ballots." 2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(c).

N.C. Gen. Stat. § 163-230.2(e1) governs who may assist a voter who needs assistance "completing the written request form due to blindness, disability, or inability to read or write and there is not a near relative or legal guardian available to assist that voter."

2. Absentee Ballots

Plaintiffs also seek to enjoin several laws relating to the marking, completing, and delivering...