Latino v. Hirsch

• Jurisdiction: North Carolina,United States,Federal
• Parties: VOTO LATINO, WATAUGA COUNTY VOTING RIGHTS TASK FORCE, DOWN HOME NORTH CAROLINA, and SOPHIE JAE MEAD, Plaintiffs, v. ALAN HIRSCH, in his official capacity as Chair of the State Board of Elections, JEFF CARMON, in his official capacity as Secretary of the State Board of Elections, STACEY EGGERS IV, in his official capacity as Member of the State Board of Elections, KEVIN N. LEWIS, in his official capacity as Member of the State Board of Elections, SIOBHAN O'DUFFY MILLEN, in her official capacity as Member of the State Board of Elections, KAREN BRINSON BELL, in her official capacity as Executive Director of the State Board of Elections, MICHAEL BEHRENT, in his official capacity as Chair of the Watauga County Board of Elections, ERIC ELLER, in his official capacity as Member of the Watauga County Board of Elections, MATT WALPOLE, in his official capacity as Member of the Watauga County Board of Elections, LETA COUNCILL, in her official capacity as Member of the Watauga County Board of Election, and ELAINE ROTHENBERG, in her official capacity as Member of the Watauga County 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, and REPUBLICAN NATIONAL COMMITTEE, NORTH CAROLINA REPUBLICAN PARTY, VIRGINIA A. WASSERBERG, and BRENDA M. ELDRIDGE, Defendant-Intervenors. DEMOCRATIC NATIONAL COMMITTEE and NORTH CAROLINA DEMOCRATIC PARTY, Plaintiffs, v. NORTH CAROLINA STATE BOARD OF ELECTIONS, KAREN BRINSON BELL, in her official capacity as Executive Director of the State Board of Elections, ALAN HIRSCH, in his official capacity as Chair of the State Board of Elections, JEFF CARMON, in his official capacity as Secretary of the State Board of Elections, STACEY EGGERS IV, in his official capacity as Member of the State Board of Elections, KEVIN N. LEWIS, in his official capacity as Member of the State Board of Elections, SIOBHAN O'DUFFY MILLEN, in her official capacity as Member 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, and REPUBLICAN NATIONAL COMMITTEE, NORTH CAROLINA REPUBLICAN PARTY, VIRGINIA A. WASSERBERG, and BRENDA M. ELDRIDGE, Defendant-Intervenors.
• Decision Date: 21 January 2024
• Court: U.S. District Court — Middle District of North Carolina
• Docket Number: 1:23-CV-861,1:23-CV-862

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VOTO LATINO, WATAUGA COUNTY VOTING RIGHTS TASK FORCE, DOWN HOME NORTH CAROLINA, and SOPHIE JAE MEAD, Plaintiffs, v. ALAN HIRSCH, in his official capacity as Chair of the State Board of Elections, JEFF CARMON, in his official capacity as Secretary of the State Board of Elections, STACEY EGGERS IV, in his official capacity as Member of the State Board of Elections, KEVIN N. LEWIS, in his official capacity as Member of the State Board of Elections, SIOBHAN O'DUFFY MILLEN, in her official capacity as Member of the State Board of Elections, KAREN BRINSON BELL, in her official capacity as Executive Director of the State Board of Elections, MICHAEL BEHRENT, in his official capacity as Chair of the Watauga County Board of Elections, ERIC ELLER, in his official capacity as Member of the Watauga County Board of Elections, MATT WALPOLE, in his official capacity as Member of the Watauga County Board of Elections, LETA COUNCILL, in her official capacity as Member of the Watauga County Board of Election, and ELAINE ROTHENBERG, in her official capacity as Member of the Watauga County 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, and REPUBLICAN NATIONAL COMMITTEE, NORTH CAROLINA REPUBLICAN PARTY, VIRGINIA A. WASSERBERG, and BRENDA M. ELDRIDGE, Defendant-Intervenors. DEMOCRATIC NATIONAL COMMITTEE and NORTH CAROLINA DEMOCRATIC PARTY, Plaintiffs, v. NORTH CAROLINA STATE BOARD OF ELECTIONS, KAREN BRINSON BELL, in her official capacity as Executive Director of the State Board of Elections, ALAN HIRSCH, in his official capacity as Chair of the State Board of Elections, JEFF CARMON, in his official capacity as Secretary of the State Board of Elections, STACEY EGGERS IV, in his official capacity as Member of the State Board of Elections, KEVIN N. LEWIS, in his official capacity as Member of the State Board of Elections, SIOBHAN O'DUFFY MILLEN, in her official capacity as Member 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, and REPUBLICAN NATIONAL COMMITTEE, NORTH CAROLINA REPUBLICAN PARTY, VIRGINIA A. WASSERBERG, and BRENDA M. ELDRIDGE, Defendant-Intervenors.

Nos. 1:23-CV-861, 1:23-CV-862

United States District Court, M.D. North Carolina

January 21, 2024

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

In these two actions,^[1] Plaintiffs contest recent changes to North Carolina's rules for voters who register and cast a ballot during the State's seventeen-day same-day registration (“SDR”) period that ends the Saturday before election day. Pursuant to the State's address verification process, the county board of elections sends all same-day registrants a card by non-forwardable mail. Under Senate Bill 747 (“S. 747”), which became law on October 10, 2023, as 2023 N.C. Sess. Laws 140 if, before the close of business on the day before the canvass, the United States Postal Service returns the verification card to the county board as undeliverable - even through no fault of the voter - the county board “shall not register the applicant and shall retrieve the applicant's ballot and remove that ballot's votes from the official count.” 2023 N.C. Sess. Laws 140 § 10. (a) (codified as N.C. Gen. Stat. § 163-82.6B (2024)).

Before the court are motions for preliminary injunction by Plaintiffs Voto Latino, Watauga County Voting Rights Task Force, Down Home North Carolina, and Sophie Jae Mead (“Voto Latino Plaintiffs”) (VL Doc. 44) and Plaintiffs Democratic National Committee and North Carolina Democratic Party (“Party Plaintiffs”) (DNC Doc. 6) (collectively, “Plaintiffs”).^[2] Defendants Karen they raise identical issues. A third case raising similar issues is also pending before this court, 1:23-cv-878. The plaintiffs there have Brinson Bell, Alan Hirsch, Jeff Carmon, Stacy Eggers IV, Kevin N. Lewis, Siobhan O'Duffy Millen, and as to 1:23-cv-862, North Carolina State Board of Elections (“NCSBE”) (“State Board Defendants”), Defendant-Intervenors Senator Philip E. Berger and Speaker Timothy K. Moore (“Legislative Intervenors”), and Defendant-Intervenors Republican National Committee, North Carolina Republican Party, Virginia Ann Wasserberg, and Brenda M. Eldridge (“Party Intervenors”) (collectively, “Intervenors”) have responded in opposition. (VL Docs. 51, 52, 54, 60; DNC Docs. 51, 52, 53.)^[3] Plaintiffs have replied. (VL Doc. 59; DNC Doc. 58.)

Voto Latino Plaintiffs seek injunctive relief, claiming violations of the First and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983. (VL Doc. 1 ¶¶ 83-98.) Party Plaintiffs allege violations of the First and Fourteenth Amendments to the United States Constitution, Article I, sections 10 and 19 of the North Carolina Constitution, the Civil Rights Act, 52 U.S.C. § 10101(a)(2)(A), the Help America Vote Act (“HAVA”), 52 U.S.C. § 21082, and the Voting Rights Act, 52 U.S.C. § 10307(b). (DNC Doc. 1 ¶¶ 52-100.) Legislative Intervenors and Party Intervenors have intervened in both cases to oppose Plaintiffs' claims and to represent the interests of the North Carolina General Assembly and their political party, respectively. (VL minute entry Nov. 15, 2023; DNC Docs. 47, 48.)

Beyond the briefs, the parties to the suit brought by Voto Latino Plaintiffs have filed declarations concerning the backgrounds and allegations of the organizational and individual Plaintiffs, depositions from leaders of the organizational Plaintiffs and Plaintiff Mead, two preliminary expert opinions and corresponding depositions, and several NCSBE “Numbered Memos,” which provide guidance to county election boards. The parties to the suit brought by Party Plaintiffs likewise rely on NCSBE Numbered Memos.

The parties have requested resolution of these motions ahead of the 2024 primary election, for which same-day registration begins on February 15, 2024. The court heard argument on the motions on December 28, 2023. For the reasons set forth below, the motions will be granted in part and denied in part.

I. BACKGROUND

The North Carolina General Assembly passed S. 747 over Governor Roy Cooper's veto on October 10, 2023. 2023 N.C. Sess. Laws 140, available at https://ncleg.gov/Sessions/ 2023/Bills/Senate/PDF/S747v6.pdf. The relevant provisions of S. 747, “[a]n act to make various changes regarding elections law,” became effective January 1, 2024. Id. § 50. While the bill amends several provisions of the election laws in Chapter 163 of the North Carolina General Statutes, the present motions specifically seek to enjoin the enforcement of portions of section 10. (a), codified as N.C. Gen. Stat. § 163-82.6B, which makes changes to North Carolina's SDR procedures.

A. Voter Registration

All adult citizens, except felons, are entitled to vote in North Carolina. N.C. Const. art VI, §§ 1-2; N.C. Gen. Stat. § 163-55(a). To be eligible to vote in a given county, a voter must have resided in that county for at least 30 days prior to election day, N.C. Gen. Stat. § 163-55(a), and register there, id. § 163 54.

North Carolina offers two general methods of registration. Under the first method used by nearly all North Carolinians, called “traditional registration” or “non-SDR” herein, an eligible voter may register 25 days or more before an election day. Id. § 163-82.6(d). These registrants must complete a registration application that requires name, date of birth, residential address, and mailing address, if different. Id. § 163-82.4(a); see also North Carolina Voter Registration Application, Form 06W, at https://dl.ncsbe.gov/VoterRegistration/NCVoterRegForm06W.pdf (last accessed Jan. 18, 2024). The mailing address need not be in the same precinct or even county as the residential address. (DNC Doc. 62 at 59:8-13.) The application also requests identifying information, such as a driver's license number, last four digits of a social security number, and gender and ethnicity, and allows an applicant to select a political party affiliation. N.C. Gen. Stat. § 163-82.4(a). The applicant must attest that he is a citizen, is 18 years old or will be on election day, and that the contents of the application are true under penalty of perjury. Id. § 163-82.4(c), (e) . The non-SDR applicant need not provide any document that proves residency.

When a county board of elections receives the application, it must make a “tentative determination that the applicant is qualified to vote at the address given.” Id. § 163-82.7(a).^[4] If the applicant is found not qualified, the county board of elections will mail him a notice within two days of the denial which informs him of alternatives to exercise the franchise and of the opportunity to appeal under section 163-82.18.^[5] Id. § 163-82.7(b).

If the applicant is “tentantive[ly] determin[ed]” to be qualified, the county board will implement the statutory procedures for “Verification of Address by Mail,” or “address verification.” Id. § 163-82.7(c). First, the county board will mail a “notice” (commonly referred to as “voter registration card”; hereinafter, “card”) confirming the precinct and voting place of the voter by non-forwardable mail to the address provided on the application. Id. If the mailing address differs from the residence address, the county board will mail the verification card to the mailing address. (DNC Doc 62 at 59:8-13); see also N.C. Gen. Stat. § 163-57(1)(c) (“Residence shall be broadly construed to provide all persons with the opportunity to...