Lake v. State Bd. of Elections of North Carolina

• Decision Date: 31 March 1992
• Docket Number: Civ. No. 2:91CV00254.
• Citation: 798 F. Supp. 1199
• Court: U.S. District Court — Middle District of North Carolina
• Parties: I. Beverly LAKE, Jr., John Thomas Edlen, and Pieter Witteveen, on behalf of themselves and others similarly situated, Plaintiffs, v. The STATE BOARD OF ELECTIONS OF NORTH CAROLINA; M.H. Hood Ellis, in his capacity as Chairman of said State Board; William A. Marsh, in his capacity as Member of said State Board; Ruth Turner, in her capacity as Member of said State Board; Gregg O. Allen, in his capacity as Member of said State Board; June K. Youngblood, in her capacity as Member of said State Board; Alex K. Brock, in his capacity as Executive Secretary-Director of said State Board; James G. Martin, in his official capacity as Governor of the State of North Carolina; and Rufus Edmisten, in his capacity as Secretary of State for the State of North Carolina; and The Board of Elections of Durham County, North Carolina; Jo Overman, in her capacity as Chairman of said County Board; Ronald Gregory, in his capacity as Member of said County Board; and Edward Pope, in his capacity as Member of said County Board; and The Board of Elections of Guilford County, North Carolina; Betty J. Pearce, in her capacity as Chairman of said County Board; James S. Pfaff, in his capacity as Member of said County Board; and Robert W. Newsom, III, in his capacity as Member of said County Board, Defendants.

798 F. Supp. 1199

I. Beverly LAKE, Jr., John Thomas Edlen, and Pieter Witteveen, on behalf of themselves and others similarly situated, Plaintiffs, v.The STATE BOARD OF ELECTIONS OF NORTH CAROLINA; M.H. Hood Ellis, in his capacity as Chairman of said State Board; William A. Marsh, in his capacity as Member of said State Board; Ruth Turner, in her capacity as Member of said State Board; Gregg O. Allen, in his capacity as Member of said State Board; June K. Youngblood, in her capacity as Member of said State Board; Alex K. Brock, in his capacity as Executive Secretary-Director of said State Board; James G. Martin, in his official capacity as Governor of the State of North Carolina; and Rufus Edmisten, in his capacity as Secretary of State for the State of North Carolina; and The Board of Elections of Durham County, North Carolina; Jo Overman, in her capacity as Chairman of said County Board; Ronald Gregory, in his capacity as Member of said County Board; and Edward Pope, in his capacity as Member of said County Board; and The Board of Elections of Guilford County, North Carolina; Betty J. Pearce, in her capacity as Chairman of said County Board; James S. Pfaff, in his capacity as Member of said County Board; and Robert W. Newsom, III, in his capacity as Member of said County Board, Defendants.

Civ. No. 2:91CV00254.

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

March 31, 1992.

COPYRIGHT MATERIAL OMITTED

Robert Neal Hunter, Jr., Marshall Hurley, Patton, Boggs & Blow, Greensboro, N.C., I. Beverly Lake, Sr.(Retired Justice, N.C. Supreme Court), Wake Forest, N.C., for plaintiffs.

James M. Wallace, Jr., Edwin M. Speas, Jr., Charles M. Hensey, Tiare B. Smiley, N.C. Dept. of Justice, Atty. General's Office, Raleigh, N.C., for defendants.

Before PHILLIPS, Circuit Judge, BULLOCK, District Judge, and TILLEY, District Judge.

MEMORANDUM OPINION

PER CURIAM:

Plaintiffs have brought this suit alleging violations of § 5 of the Voting Rights Act of 1965,42 U.S.C. § 1973c(1988), of the Due Process and Equal Protection Clauses of the Fourteenth Amendment actionable under 42 U.S.C. § 1983, and of state laws governing the electoral process.The action arises out of alleged irregularities surrounding the conduct of the November 6, 1990, general election in Durham and Guilford Counties, North Carolina, and the remedial efforts of state judges in those counties.Plaintiffs are I. Beverly Lake, Jr., the Republican candidate for the position of Associate Justice of the North Carolina Supreme Court, and two voters, one each from Durham and Guilford Counties.Defendants are the State Board of Elections of North Carolina, the Boards of Elections of Durham and Guilford Counties, the members of each of the three Boards in their official capacities, and the Governor and Secretary of State of North Carolina.Plaintiffs have pursued their claims through the administrative process, culminating with a decision by the State Board of Elections which did not provide the relief sought.¹Plaintiffs seek to enjoin Defendants from certifying the results of the election for Associate Justice of the North Carolina Supreme Court, a declaration that the November 6 election is void, and an order requiring a new election.Defendants have filed motions to dismiss and for partial summary judgment; Plaintiffs have also moved for partial summary judgment.

I.

The November 6, 1990, election in North Carolina included a contest for one of the state's seats in the United States Senate.The high profile nature of that contest, coupled with other congressional, statewide, and local races, resulted in a high voter turnout and associated problems.Among the other races was the race for Associate Justice of the North Carolina Supreme Court between John Webb and I. Beverly Lake, Jr., which is the subject of this litigation.The parties do not disagree that the facts are as found by the county and state Boards of Elections.

This court was convened under 42 U.S.C. § 1973cand28U.S.C. § 2284.Once convened, a three-judge court has pendent jurisdiction over and may dispose of all claims that are substantially related to the claim that required convening of the three-judge court.United States v. Georgia Pub. Serv. Comm'n,371 U.S. 285, 287-88, 83 S.Ct. 397, 398-99, 9 L.Ed.2d 317(1963);Weintraub v. Hanrahan,435 F.2d 461, 463(7th Cir.1970);see alsoClayton v. North Carolina State Bd. of Elections,317 F.Supp. 915, 919-20(E.D.N.C.1970).Plaintiffs' § 1983 and state election law claims come under our pendent jurisdiction as substantially related claims and will be considered by the three-judge court on that basis.

A.

Early on election day, voting machines in Durham County began experiencing problems and breaking down in some precincts, resulting in lines requiring a wait of over two hours to vote.The long lines were caused by the high voter turnout, an inadequate number of voting machines, malfunctioning of some machines, and the length and complexity of the ballot.Malfunctioning machines were taken out of service, exacerbating the problems associated with an already inadequate number of machines at each precinct.As a result of the problems, the Durham County Board of Elections met at approximately 1:00 p.m. and voted to extend voting hours from 7:30 p.m. to 8:30 p.m. as allowed by North Carolina General Statute § 163-2(1987).Thereafter, some time after 2:30 p.m., counsel for the county Democratic Party presented approximately thirty affidavits and a motion to extend the voting hours until 10:00 p.m. and to authorize the use of paper ballots to a superior court judge at the Durham County Courthouse.The judge granted the motion.

Conditions at the precincts did not improve significantly, and the court order created additional problems.Precincts began to use the paper ballots for all voters even though they were statutorily authorized only for curbside balloting by those unable to enter the voting area.N.C.Gen.Stat. § 163-162(1987).As a result, there was an insufficient number of curbside ballots for the elderly and handicapped.Additionally, in one precinct, photocopied paper ballots were used.These ballots were administered by volunteers under protest by precinct officials and were collected both in the official ballot box and in an unsecured trash bag.Election officials at precincts also made errors.State law requires officials to compile a list of voters who are in line at the time set by statute for closing the polls.N.C.Gen.Stat. § 163-168(1987).Only those persons are allowed to vote after the polls close.As many as 1,998 persons allegedly entered the line to vote after 8:30 p.m. and were allowed to vote.The Durham County Board of Elections concluded that there was substantial evidence to believe that the irregularities which occurred might have affected the outcome of the election, and recommended to the State Board of Elections that a new election be conducted in Durham County for the office of Associate Justice of the North Carolina Supreme Court.

B.

In Guilford County, at approximately 10:30 a.m., the chairperson of the county Democratic Party filed a request with the Board of Elections that the polls remain open past the statutory closing time of 7:30 p.m. because of voting machine malfunctions, an inadequate number of registration books, and high voter turnout.A second request was filed at approximately 3:00 p.m.After an independent investigation, the county Board of Elections met at 5:00 p.m. to consider the request.A motion was made to extend the voting time to 8:30 p.m. pursuant to North Carolina General Statute § 163-2, but failed for lack of a second.

Following the Board's failure to extend voting hours, representatives of the county Democratic Party presented affidavits and a complaint and motion to a superior court judge to extend the voting hours to 8:30 p.m.At 7:20 p.m., ten minutes before the polls were to close, the judge entered an order requiring the polls to remain open until 8:30 p.m. Due to the lateness of the order, not all polls were notified in time, and some closed at 7:30 p.m.Some persons who tried to vote at precincts after 7:30 were not allowed to do so.Some were able to vote at open precincts between 7:30 and 8:30 p.m.; however, the number of persons actually voting after 7:30 p.m. is not clear because election officials did not make a list of voters who voted after the normal 7:30 p.m. closing.The Guilford County Board of Elections determined that the irregularities and violations of election law were sufficiently serious and pervasive to cast doubt on the correctness of the results and recommended to the State Board of Elections that a new election be held in Guilford County for the office of Associate Justice of the North Carolina Supreme Court.

II.

Plaintiffs complain of the irregularities in both counties.In Durham County, they allege specifically: (1) failure of the Durham County Board of Elections to provide voting machines in working order in twenty-four precincts and in the precinct transfer station; (2) failure of the Durham County Board of Elections to prepare and maintain properly the voting machines in twenty-four precincts and in the precinct transfer station; (3) failure of the Durham County Board of Elections to prevent extremely long lines in numerous precincts, thereby preventing voters from voting after a reasonable wait; (4) failure of the Durham County Board of Elections to distribute voting machines among the voting places as required by North Carolina General Statute § 163-161;(5) failure of the Durham County Board of Elections to provide proper curbside and paper ballots and ballot boxes with adequate security in numbers sufficient to accommodate voters in precincts with voting machine failures; (6) failure of the Durham County Board of Elections to distribute and collect paper ballots in the manner prescribed by North Carolina General...