N. Carolina Green Party v. N. Carolina State Bd. of Elections

• Decision Date: 05 August 2022
• Docket Number: 5:22-CV-276-D
• Parties: NORTH CAROLINA GREEN PARTY, et al., Plaintiffs, v. NORTH CAROLINA STATE BOARD OF ELECTIONS, et al., Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

NORTH CAROLINA GREEN PARTY, et al., Plaintiffs, v. NORTH CAROLINA STATE BOARD OF ELECTIONS, et al., Defendants.

No. 5:22-CV-276-D

United States District Court, E.D. North Carolina, Western Division

August 5, 2022

ORDER

JAMES C. DEVER III, UNITED STATES DISTRICT JUDGE

On July 21, 2022, the North Carolina Green Party ("Green Party"), Anthony Ndege, Michael Trudeau, Matthew Hoh Samantha Worrell, Samantha Spence, K. Ryan Parker, and Aaron Mohammed (collectively, "plaintiffs") filed an amended complaint seeking declaratory and injunctive relief arising from their efforts to have the Green Party certified as a new political party and to have their candidates placed on the ballot ahead of the November 8, 2022 general election [D.E. 27]. Plaintiffs named the North Carolina State Board of Elections and all five Board of Elections members and the Board of Elections executive director, in their official capacities, as defendants (collectively, the "Board" or "defendants"). Plaintiffs seek (1) a declaratory judgment that defendants unconstitutionally applied N.C. Gen. Stat. § 163-96(a)(2) to the Green Party, (2) "an order directing [the Board] to certify [the Green Party] as a new political party entitled to place its candidates on North Carolina's November 8, 2022 general election ballot," and (3) an order "enjoining [the Board] from enforcing the July 1 filing deadline under § 163-98 as applied to Plaintiffs." Id. at 25.

The same day, plaintiffs moved for a preliminary injunction and filed a memorandum and exhibits in support [D.E. 28,30]. On July 29, 2022 defendants responded in opposition and filed exhibits in support [D.E. 51-53]. On August 2, 2022, plaintiffs replied [D.E. 58].

On July 17, 2022, before plaintiffs filed their amended complaint the Democratic Senatorial Campaign Committee ("DSCC") and the North Carolina Democratic Party ("Democratic Party") (collectively, "intervenors") moved to intervene as defendants in this action and filed a memorandum in support [D.E. 15, 16]. On July 19, 2022, the intervenors moved to expedite the briefing for and consideration of their motion to intervene [D.E. 21]. On July 28, 2022, plaintiffs responded in opposition to the motionto intervene [D.E. 45]. Defendants have not responded. On July 29, 2022, the intervenors filed a proposed response and exhibits in opposition to plaintiffs' motion for a preliminary injunction [D.E. 50]. On August 2, 2022, the intervenors replied to plaintiffs' response in opposition to their motion to intervene [D.E. 57].

On July 26, 2022, the National Republican Senatorial Committee ("NRSC") movedfor leave to file as amicus curiae and filed a proposed brief in support of plaintiffs' motion for a preliminary injunction [D.E. 42,43]. Neither plaintiffs nor defendants oppose NRSC's participation as amicus curiae, see [D.E. 42] 2, and the court grants their motion for leave to file.

As explained below, the court grants the intervenors' motion to intervene and grants in part and denies in part plaintiffs' motion for a preliminary injunction. The court enjoins defendants in their official capacities from enforcing the July 1 candidate-filing deadline in N.C. Gen. Stat. § 163-98 against the Green Party and its candidates and orders defendants in their official capacities to place Green Party candidates Matthew Hon and Michael Trudeau on North Carolina's November 8, 2022 general election ballot in accordance with this order.

I.

The North Carolina Green Party is the state affiliate of the Green Party of United States. See Am. Compl. ¶ 6. The Green Party seeks to place Matthew Hoh ("Hoh") and Michael Trudeau ("Trudeau") on the ballot as candidates in North Carolina's November 8, 2022 general election. See Id. ¶¶ 6, 8-9, 31-32. Although the Green Party was a recognized political party in North Carolina and had candidates on the 2020 general election ballot, the party failed to garner enough votes to automatically qualify as a political party entitled to place candidates on the 2022 general election ballot. See Cox Decl. [D.E. 52] ¶¶ 3-4. Thus, to re-certify as a political party and to place Hoh and Trudeau on the ballot as candidates in the 2022 general election, the Green Party had to comply with the statutory requirements in N.C. Gen Stat. §§ 163-96 and 163-98. See id. ¶ 5; Am. Compl. ¶¶ 21-26; [D.E. 51] 5.

Under N.C. Gen. Stat. § 163-96(a)(2), a group of voters can qualify as a new political party if they file with the Board petitions "which are signed by registered and qualified voters... equal in number to one-quarter of one percent (0.25%) of the total number of voters who voted in the most recent general election for Governor. Also the petitions must be signed by at least 200 registered voters from each of three congressional districts in North Carolina." N.C. Gen.,Stat. § 163-96(a)(2). Such petitions are due to the Board by 12:00 p.m. on the June 1 preceding the general election in which the putative political party desires to participate. See id.

Before a putative political party can submit its petitions to the Board, however, the party must submit its petitions "to the chairman of the board of elections of the county in which the signatures were obtained." Id. § 163-96(c). Upon receiving such petitions, the county chair must "examine the signatures on the petition and place a check mark on the petition by the name of each signer who is qualified and registered to vote in his county." Id. § 163-96(c)(1). After validating the signatures, the county chair then attaches a signed certificate to the petition "[s]tating that the signatures on the petition have been checked against the registration records and... [indicating the number found qualified and registered to vote in his county." Id. § 163-96(c)(2). The county chair then returns the petition and certificate to the party. See Id. § 163-96(c)(3). Putative parties must submit their petitions to the county chairs "no later than 5:00 P.M. on the fifteenth day preceding the date the petitions are due to be filed with the State Board of Elections." Id. § 163-96(c). County boards of elections have two weeks to complete the verification process after the putative party submits its petitions. Id.

When petition signatures are presented to county boards of elections for validation, the boards' review is fairly limited. They "check and certify the signatures using the SEIMS Petition Checking module"^[1] to confirm that: (1) they are able to find the voter, (2) the "[j]urisdiction/eUgibility matches," (3) the signer's address matches the petition and is within the district, and (4) the signature bears a "reasonable resemblance" in light of the boards of elections not being "handwriting experts." [D.E. 52-9] 4; see Cox Decl. ¶ 26 (noting that these instructions have "[f]or many years" been the "the State Board's interpretation of N.C. G.S. § 163-96(c)"); [D.E. 52-10] (email from the Board's general counsel reiterating these requirements to the county boards of elections). "If verified, signature counts towards total." [D.E. 52-9] 4. "If not able to be verified, signature does not count." Id. Any evidence of fraud or forgery must be referred "to state board investigators." Id.

Once a putative party submits its verified petitions to the Board by the June 1 deadline, the Board "shall forthwith determine the sufficiency of petitions filed with it and shall immediately communicate its determination to the State chair of the proposed new political party." N.C. Gen. Stat. § 163-96(a)(2). If the Board certifies a new party, the party must then certify to the Board the candidates it seeks to place on the general election ballot. "For the first general election following the date on which it qualifies under G.S. 163-96, a new political party shall select its candidates by party convention." Id. § 163-98. A party must hold the convention and certify its candidates to the Board not later than the July 1 preceding the general election in which the party's candidates propose to run. See id.

To meet the statutory requirements for certification in N.C. Gen. Stat. § 163-96(a)(2), the Green Party needed to submit 13,865 valid signatures to the Board by June 1, 2022. See Am. Compl. ¶ 26; [D.E. 52-1] (Green Party petition request form).^[2] The Green Party's petitions were due to the county boards of elections not later than 5:00 p.m. on May 17, 2022, so that the county boards of elections could validate the Green Party's petition signatures. See Cox Decl. ¶ 5; [D.E. 52-1].

In February 2021, the Green Party began a new petition drive to collect signatures to try to meet the May 17, 2022 deadline to submit signatures to the county boards of elections for validation. See Am. Compl. ¶ 25; Cox Decl. ¶ 5. Three issues emerged regarding the Green Party's petition drive. First, in October 2021, the Board received queries from county boards in roughly five counties because it appeared that the Green Party had submitted outdated petition sheets from prior petitions. See Cox Decl. ¶ 6. The Board was unable to address that issue with the Green Party at the time. See id. ¶¶ 7-8; [D.E. 52-2].

Second, in March 2022, the Green Party told the Board they did not intend to seek party recognition in 2022 but instead were starting their petition drive for 2024. See Cox. Decl. ¶ 9; [D.E. 52-4].

In response, the Board changed the deadline in the SEIMS Petition Module for the Green Party to submit petitions to county boards to May 17, 2024. See Cox Decl. ¶ 9. When the Green Party later decided to seek certification in 2022 the reversion back to the May 17, 2022 deadline caused confusion. Some county boards accidentally validated signatures submitted after the May 17, 2022 deadline, mistakenly believing they were timely under the May 17, 2024 d...