Judicial Watch, Inc. v. North Carolina

• Decision Date: 20 August 2021
• Docket Number: Civil Action 3:20-CV-211-RJC-DCK
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. STATE OF NORTH CAROLINA, NORTH CAROLINA STATE BOARD OF ELECTIONS, KAREN BRINSON BELL, MECKLENBURG COUNTY BOARD OF ELECTIONS, CHARLIE COLLICUTT, MICHAEL G. DICKERSON, HORACE KIMEL, JR., CAROL HILL WILLIAMS, and GUILFORD COUNTY BOARD OF ELECTIONS, Defendants.
• Court: U.S. District Court — Western District of North Carolina

JUDICIAL WATCH, INC., Plaintiff,
v.
STATE OF NORTH CAROLINA, NORTH CAROLINA STATE BOARD OF ELECTIONS, KAREN BRINSON BELL, MECKLENBURG COUNTY BOARD OF ELECTIONS, CHARLIE COLLICUTT, MICHAEL G. DICKERSON, HORACE KIMEL, JR., CAROL HILL WILLIAMS, and GUILFORD COUNTY BOARD OF ELECTIONS, Defendants.

Civil Action No. 3:20-CV-211-RJC-DCK

United States District Court, W.D. North Carolina, Charlotte Division

August 20, 2021

MEMORANDUM AND RECOMMENDATION

DAVID C. KEESLER UNITED STATES MAGISTRATE JUDGE

THIS MATTER IS BEFORE THE COURT on “The League Of Women Voters Of North Carolina And The North Carolina A. Philip Randolph's Motion To Intervene As Defendants” (Document No. 19); the “The State And Guilford County Defendants' Motion To Dismiss” (Document No. 38); “The Mecklenburg County Board Of Elections, Michael G. Dickerson, And Carol Hill Williams' Motion To Dismiss” (Document No. 39); “Proposed Defendant-Intervenors' Motion For Expedited Consideration Of Their Motion To Intervene” (Document No. 41); and Plaintiff's “Motion To Extend Time To Serve Complaint” (Document No. 42).

These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and are ripe for disposition. Having carefully considered the arguments, the

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record, and applicable authority, the undersigned will respectfully recommend that the motions be granted in part and denied in part.

I. BACKGROUND

Judicial Watch, Inc. (“Plaintiff” or “Judicial Watch”) initiated this action with the filing of its “Complaint” (Document No. 1) on April 9, 2020. Plaintiff “is a not-for-profit, educational organization” with a mission “to promote transparency, integrity, and accountability in government and fidelity to the rule of law.” (Document No. 1, pp. 2, 6).

Plaintiff seeks declaratory and injunctive relief against the State of North Carolina (the “State”); the North Carolina State Board of Elections (“State Board”); Karen Brinson Bell (“Bell”) (together the “State Defendants”), in her capacity as the Executive Director of the State Board of Elections; the Mecklenburg County Board of Elections (“Mecklenburg Board”); Michael G. Dickerson (“Dickerson”), in his capacity as the Director of Elections for Mecklenburg County; Carol Hill Williams (“Williams”) (together the Mecklenburg Defendants), in her capacity as Chair of the Mecklenburg County Board of Elections; the Guilford County Board of Elections (“Guilford Board”); Charlie Collicutt (“Collicutt”), in his official capacity as Director of Elections for Guilford County; and Horace Kimel, Jr., (“Kimel”) (together the “Guilford Defendants”) in his capacity as Chair of the Guilford County Board of Elections (all together “Defendants”).^[1] (Document No. 1, pp. 1-2). By bringing this action,

Plaintiff seeks . . . to compel the State of North Carolina the North Carolina State Board of Elections, the Mecklenburg County Board of Elections, and the Guilford County Board of Elections to comply with their voter list maintenance obligations and their record production obligations under Section 8 of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20507

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(Document No. 1, p. 2).

Plaintiff contends that

[w]hen the number of voter registrations in a jurisdiction is close to, at, or above the number of citizens over the age of 18 residing in that jurisdiction, it is an indication that that jurisdiction is not taking the steps required by law to remove ineligible registrations from the voter rolls.

. . . Judicial Watch's analysis showed that, at the time of the EAC report, a significant proportion of North Carolina's 100 counties had registrations rates close to, at, or above 100% of their age-eligible citizenry.

(Document No. 1, pp. 8-9).

The Complaint notes that the National Voter Registration Act of 1993 (“NVRA”) “requires states to ‘conduct a general program that makes a reasonable effort to remove the names of ineligible votes from the official lists of eligible voters' by reason of death or change of address.” (Document No. 1, p. 4) (quoting 52 U.S.C. § 20507(a)(4)). The Complaint further describes the statutory background as follows:

15. Under Section 8 of the NVRA, a voter becomes “ineligible, ” and subject to removal from a jurisdiction's voter rolls, when the voter asks to be removed from the rolls, does not respond to an address inquiry and fails to vote during a specified statutory period, dies, or is disqualified from voting under state law because of a criminal conviction or mental incapacity; or when an erroneous registration record is corrected. 52 U.S.C. § 20507(a)(3), (4)(A), 4(B), (c)(2)(B)(ii).

16. The NVRA provides that a voter may be removed from a jurisdiction's voter rolls if the voter either (1) confirms in writing that he or she has moved outside the jurisdiction or (2) fails to respond to an address confirmation notice, then fails to vote during a statutory waiting period extending from the date of the notice through the next two general federal elections. 52 U.S.C. § 20507(d)(1). Federal law makes this removal mandatory. Id. § 20507(d)(3); 52 U.S.C.§ 21083(a)(4)(A).

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20. Section 8(i) of the NVRA grants the public the right to request information concerning voter list maintenance. It provides that “[e]ach State shall maintain for at least 2 years and shall make available for public inspection” and copying “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.” 52 U.S.C. § 20507(i).

(Document No. 1, pp. 4-5).

Plaintiff asserts two causes of action in this case, apparently against all Defendants. (Document No. 1, pp. 15-17). First, Plaintiff alleges that “Defendants have failed to fulfill their obligations under Section 8(a)(4) of the NVRA to conduct a general program that makes a reasonable effort to cancel the registrations of registrants who are ineligible to vote in North Carolina's federal elections.” (Document No. 1, p. 15); see also 52 U.S.C. § 20507(a)(4). Second, Plaintiff alleges that “Defendants have failed to fulfill their obligations under Section 8(i) of the NVRA to make available to Plaintiff ‘all records' within the past two years ‘concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.'” (Document No. 1, p. 16); see also 52 U.S.C. § 20507(i).

“The League Of Women Voters Of North Carolina And The North Carolina A. Philip Randolph's Motion To Intervene As Defendants” (Document No. 19) was filed on April 21, 2020. The proposed Defendant-Intervenors summarize their position by stating that they “oppose any requested court-ordered purging of voting rolls in North Carolina, including Guilford County and Mecklenburg County, and will seek a judgment on the pleadings in favor of Defendants on Count I of the Complaint.” (Document No. 19, p. 2).

Following several consent motions to extend time, Defendants responded to the Complaint by filing “The State And Guilford County Defendants' Motion To Dismiss” (Document No. 38)

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and “The Mecklenburg County Board Of Elections, Michael G. Dickerson, And Carol Hill Williams' Motion To Dismiss” (Document No. 39) on July 27, 2020. Defendants contend that dismissal is appropriate under Fed.R.Civ.P. 12(b)(1), (2), (5), and (6). (Document Nos. 38 and 39).

Also pending before the Court are: the “Proposed Defendant-Intervenors' Motion For Expedited Consideration Of Their Motion To Intervene” (Document No. 41); Plaintiff's “Motion To Extend Time To Serve Complaint” (Document No. 42); and Plaintiff's “Motion For Oral Argument Regarding Motions To Dismiss” (Document No. 55).

The pending motions are ripe for review and recommended disposition to the Honorable Robert J. Conrad, Jr.

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(1) seeks to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). “The subject matter jurisdiction of federal courts is limited and the federal courts may exercise only that jurisdiction which Congress has prescribed.” Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

A motion to dismiss based on Eleventh Amendment immunity concerns the Court's jurisdiction. Martin v. Wood, 772 F.3d 192, 195 (4th Cir. 2014). Statutory standing under the

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NVRA is also jurisdictional. Bellitto v. Snipes, 221 F.Supp.3d 1354, 1361 (S.D. Fla. 2016) (“Plaintiffs' standing to bring suit depends on compliance with the statute”).

Under Rule 12(b)(5), failure to properly serve process on a defendant deprives the Court of personal jurisdiction. Scott v. N.C. Dep't of Revenue, No. 3:13-CV-294-MOC-DSC, 2014 WL 1267248, at *1 (W.D. N.C. Mar. 26, 2014). For a motion regarding insufficient service of process, “affidavits and other materials outside the pleadings may be properly submitted and considered.” Id. (citation omitted).

III. DISCUSSION

The undersigned finds that a “history of the NVRA and its relevant provisions, ” as recently described by the United States Court of Appeals for the Fourth Circuit, is a helpful starting point for the Court's analysis of the issues here.

In enacting the NVRA, Congress explained that the right to vote is a “fundamental right” and that governments must “promote the exercise of that right.” National Voter Registration

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