18BD,APPEAL,CASREF,MEDIATION
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:20−cv−00457−WO−JLW

DEMOCRACY NORTH CAROLINA et al v. NORTH CAROLINA STATE BOARD OF ELECTIONS et al Assigned to: JUDGE WILLIAM L. OSTEEN, JR Referred to: MAG/JUDGE JOE L. WEBSTER Case in other court: Fourth Circuit, 20−01728 Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 05/22/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA

represented by GEORGE P. VARGHESE WILMER CUTLER PICKERING HALE AND DORR, LLP 60 STATE ST. BOSTON, MA 02109 617−526−6524 Fax: 617−526−5000 Email: George.Varghese@wilmerhale.com ATTORNEY TO BE NOTICED

HILARY H. KLEIN SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. HWY. 54, STE. 101 DURHAM, NC 27707 919−323−3802 Email: hilaryhklein@scsj.org ATTORNEY TO BE NOTICED

JEFFREY LOPERFIDO SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. HWY. 54, STE. 101 DURHAM, NC 27707 919−323−3380 Fax: 919−323−3942 Email: jeffloperfido@scsj.org ATTORNEY TO BE NOTICED

JONATHAN L. SHERMAN FAIR ELECTIONS CENTER 1825 K ST NW SUITE 450 WASHINGTON, DC 20006 845−596−9081 Email: jsherman@fairelectionscenter.org ATTORNEY TO BE NOTICED

JOSEPH J. YU WILMER CUTLER PICKERING HALE AND DORR, LLP 7 WORLD TRADE CENTER 250 GREENWICH STREET NEW YORK, NY 10007 212−295−6551 Fax: 212−230−8888 Email: Joseph.Yu@wilmerhale.com ATTORNEY TO BE NOTICED

MICHELLE E. KANTER COHEN

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Plaintiff DEMOCRACY NORTH CAROLINA

FAIR ELECTIONS CENTER 1825 K ST NW SUITE 450 WASHINGTON, DC 20006 202−248−5347 Email: mkantercohen@fairelectionscenter.org ATTORNEY TO BE NOTICED
REBECCA M. LEE WILMER CUTLER PICKERING HALE AND DORR, LLP 1875 PENNSYLVANIA AVE., NW WASHINGTON, DC 20006 202−663−6496 Fax: 202−663−6363 Email: Rebecca.Lee@wilmerhale.com ATTORNEY TO BE NOTICED
RICHARD A. INGRAM WILMER CUTLER PICKERING HALE AND DORR, LLP 1875 PENNSYLVANIA AVE., NW WASHINGTON, DC 20006 202−663−6114 Fax: 202−663−6363 Email: Rick.Ingram@wilmerhale.com ATTORNEY TO BE NOTICED
STEPHANIE LIN WILMER CUTLER PICKERING HALE AND DORR, LLP 60 STATE ST. BOSTON, MA 02109 617−526−6789 Fax: 617−526−5000 Email: Stephanie.Lin@wilmerhale.com ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. HWY. 54, STE. 101 DURHAM, NC 27707 919−323−3380 ext. 117 Fax: 919−323−3942 Email: allison@southerncoalition.org ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff DONNA PERMAR

JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address)

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Plaintiff JOHN P. CLARK
Plaintiff MARGARET B. CATES

ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED

Case: 1:20-cv-457 document<docnum> filed <datefiled> 4 of 33

Plaintiff LELIA BENTLEY
Plaintiff REGINA WHITNEY EDWARDS

MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address)

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Plaintiff ROBERT K. PRIDDY II

ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE

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Plaintiff SUSAN SCHAFFER
Plaintiff WALTER HUTCHINS

(See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED
JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED
represented by GEORGE P. VARGHESE (See above for address) ATTORNEY TO BE NOTICED
HILARY H. KLEIN (See above for address) ATTORNEY TO BE NOTICED

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JEFFREY LOPERFIDO (See above for address) ATTORNEY TO BE NOTICED
JONATHAN L. SHERMAN (See above for address) ATTORNEY TO BE NOTICED
JOSEPH J. YU (See above for address) ATTORNEY TO BE NOTICED
MICHELLE E. KANTER COHEN (See above for address) ATTORNEY TO BE NOTICED
REBECCA M. LEE (See above for address) ATTORNEY TO BE NOTICED
RICHARD A. INGRAM (See above for address) ATTORNEY TO BE NOTICED
STEPHANIE LIN (See above for address) ATTORNEY TO BE NOTICED
ALLISON JEAN RIGGS (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
NORTH CAROLINA STATE BOARD OF ELECTIONS

represented by ALEXANDER MCCLURE PETERS N.C. DEPARTMENT OF JUSTICE POB 629 RALEIGH, NC 27602−0629 919−716−6913 Fax: 919−716−6763 Email: apeters@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY N. C. DEPARTMENT OF JUSTICE POB 629 RALEIGH, NC 27602−0629 919−716−6813 Fax: 919−716−6758 Email: nmchenry@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK N. C. DEPARTMENT OF JUSTICE POB 629 RALEIGH, NC 27602−0629 919−716−6650 Fax: 919−716−6708 Email: khathcock@ncdoj.gov ATTORNEY TO BE NOTICED

Case: 1:20-cv-457 document<docnum> filed <datefiled> 8 of 33

Defendant DAMON CIRCOSTA in his official capacity as CHAIR OF THE STATE BOARD OF ELECTIONS
Defendant STELLA ANDERSON in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS
Defendant KEN RAYMOND in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS
Defendant JEFF CARMON, III in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS
Defendant

represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED

Case: 1:20-cv-457 document<docnum> filed <datefiled> 9 of 33

KAREN BRINSON BELL in her official capacity as EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS
Defendant NORTH CAROLINA DEPARTMENT OF TRANSPORTATION
Defendant J. ERIC BOYETTE in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant MANDY COHEN in her official capacity as SECRETARY

represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address)

Case: 1:20-cv-457 document<docnum> filed <datefiled> 10 of 33

OF HEALTH AND HUMAN SERVICES
Defendant DAVID C. BLACK in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS
Amicus PUBLIC INTEREST LEGAL FOUNDATION
V. Intervenor PHILIP E. BERGER in his official capacity as President Pro Tempore of the North Carolina Senate

LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by ALEXANDER MCCLURE PETERS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEAL T. MCHENRY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYNE E. HATHCOCK (See above for address) ATTORNEY TO BE NOTICED
represented by JOSHUA BRIAN HOWARD GAMMON, HOWARD & ZESZOTARSKI, PLLC 115 1/2 W. MORGAN ST. RALEIGH, NC 27601 919−521−5878 Fax: 919−882−1898 Email: jhoward@ghz−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
KAYLAN PHILLIPS PUBLIC INTEREST LEGAL FOUNDATION 32 E. WASHINGTON STREET SUITE 1675 INDIANAPOLIS, IN 46204 317−203−5599 Email: kphillips@publicinterestlegal.org ATTORNEY TO BE NOTICED
represented by NICOLE JO MOSS COOPER & KIRK, PLLC 1523 NEW HAMPSHIRE AVE., NW WASHINGTON, DC 20036 910−270−8768 Email: nmoss@cooperkirk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID H. THOMPSON

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Intervenor TIMOTHY K. MOORE General Counsel Office of Speaker Tim Moore North Carolina House of Representatives 16 West Jones Street, Room 2304 Raleigh, NC 27601 in his official capacity as Speaker of the North Carolina House of Representatives
Intervenor REPUBLICAN NATIONAL COMMITTEE

COOPER & KIRK, PLLC 1523 NEW HAMPSHIRE AVE., NW WASHINGTON, DC 20036 202−220−9659 Fax: 202−220−9601 Email: dthompson@cooperkirk.com ATTORNEY TO BE NOTICED
PETER A. PATTERSON COOPER & KIRK, PLLC 1523 NEW HAMPSHIRE AVE., NW WASHINGTON, DC 20036 202−220−9600 Fax: 202−220−9601 Email: ppatterson@cooperkirk.com ATTORNEY TO BE NOTICED
represented by NICOLE JO MOSS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID H. THOMPSON (See above for address) ATTORNEY TO BE NOTICED
PETER A. PATTERSON (See above for address) ATTORNEY TO BE NOTICED
represented by R. SCOTT TOBIN TAYLOR ENGLISH DUMA LLP 4206 SIX FORKS ROAD SUITE 1000 RALEIGH, NC 30339 404−640−5951 Fax: 770−434−7376 Email: stobin@taylorenglish.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOBBY R. BURCHFIELD KING & SPALDING LLP 1700 PENNSYLVANIA AVE., NW, STE. 200 WASHINGTON, DC 20006−4707 202−626−5524 Fax: 202−626−3737 Email: bburchfield@kslaw.com ATTORNEY TO BE NOTICED
MATTHEW M. LELAND KING & SPALDING LLP 1700 PENNSYLVANIA AVE., NW, STE. 200 WASHINGTON, DC 20006−4707 202−626−5527 Fax: 202−626−3737 Email: mleland@kslaw.com ATTORNEY TO BE NOTICED

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Intervenor NATIONAL REPUBLICAN SENATORIAL COMMITTEE
Intervenor NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE
Intervenor REPUBLICAN PARTY OF NORTH CAROLINA

represented by R. SCOTT TOBIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOBBY R. BURCHFIELD (See above for address) ATTORNEY TO BE NOTICED
MATTHEW M. LELAND (See above for address) ATTORNEY TO BE NOTICED
represented by R. SCOTT TOBIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOBBY R. BURCHFIELD (See above for address) ATTORNEY TO BE NOTICED
MATTHEW M. LELAND (See above for address) ATTORNEY TO BE NOTICED
represented by R. SCOTT TOBIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOBBY R. BURCHFIELD (See above for address) ATTORNEY TO BE NOTICED
MATTHEW M. LELAND (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/22/2020
05/22/2020 05/22/2020 05/26/2020

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0418−2811511.), filed by REGINA WHITNEY EDWARDS, DEMOCRACY NORTH CAROLINA, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, ROBERT K PRIDDY II, LELIA BENTLEY, DONNA PERMAR, JOHN P. CLARK, MARGARET B CATES. (Attachments: # 1 Exhibit 1 − March 26 Letter, # 2 Exhibit 2 − April 22 Letter, # 3 Exhibit 3 − CD11 Letter)(RIGGS, ALLISON) (Entered: 05/22/2020)
2 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff DEMOCRACY NORTH CAROLINA. (RIGGS, ALLISON) (Entered: 05/22/2020)
3 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA. (RIGGS, ALLISON) (Entered: 05/22/2020)
4 Summons Issued as to All Defendants. (Attachments: # 1 Summons − Damon Circosta, # 2 Summons − Stella Anderson, # 3 Summons − Ken Raymond, # 4 Summons − Jeff Carmon, III, # 5 Summons − Karen Brinson Bell, # 6 Summons −

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05/26/2020 05/26/2020 05/26/2020 05/29/2020 06/04/2020 06/05/2020
06/05/2020 06/05/2020
06/05/2020 06/05/2020

NCDOT, # 7 Summons − J. Eric Boyette, # 8 Summons − NCDHHS, # 9 Summons − Mandy Cohen, # 10 Summons − David C. Black) (Sheets, Jamie) (Entered: 05/26/2020)
5 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Attachments: # 1 Consent Form) (Sheets, Jamie) (Entered: 05/26/2020)
CASE REFERRED to Mediation pursuant to Local Rule 83.9b of the Rules of Practice and Procedure of this Court. Please go to our website under Attorney Information for a list of mediators which must be served on all parties. (Sheets, Jamie) (Entered: 05/26/2020)
Case ASSIGNED to JUDGE WILLIAM L. OSTEEN, JR and MAG/JUDGE JOE L. WEBSTER. (Sheets, Jamie) (Entered: 05/26/2020)
6 AFFIDAVIT OF SERVICE as to All Defendants. (RIGGS, ALLISON) (Entered: 05/29/2020)
7 Joint MOTION for Leave to File Excess Pages for Preliminary Injunction Briefing by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II. (Attachments: # 1 Text of Proposed Order)(RIGGS, ALLISON) (Entered: 06/04/2020)
8 First AMENDED COMPLAINT against defendant STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND, SUSAN SCHAFFER, WALTER HUTCHINS, filed by REGINA WHITNEY EDWARDS, DEMOCRACY NORTH CAROLINA, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, ROBERT K. PRIDDY II, LELIA BENTLEY, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, SUSAN SCHAFFER, WALTER HUTCHINS.(RIGGS, ALLISON) (Entered: 06/05/2020)
9 MOTION for Preliminary Injunction and Consent Request to Expedite Briefing/Consideration by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Response to Motion due by 6/19/2020 (RIGGS, ALLISON) (Entered: 06/05/2020)
10 BRIEF re 9 MOTION for Preliminary Injunction and Consent Request to Expedite Briefing/Consideration by Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (RIGGS, ALLISON) (Entered: 06/05/2020)
11 Additional Attachments to Main Document re 10 Brief,, Index of Plaintiff Declarations. (Attachments: # 1 Exhibit Lopez Declaration, # 2 Exhibit Nicholas Declaration, # 3 Exhibit Permar Declaration, # 4 Exhibit Clark Declaration, # 5 Exhibit Cates Declaration, # 6 Exhibit Bentley Declaration, # 7 Exhibit Edwards Declaration, # 8 Exhibit Priddy Declaration, # 9 Exhibit Hutchins Declaration, # 10 Exhibit Schaffer Declaration)(RIGGS, ALLISON) (Entered: 06/05/2020)
12 Additional Attachments to Main Document re 10 Brief,, Index of Additional Declarations. (Attachments: # 1 Exhibit Dr. Murray Declaration, # 2 Exhibit Dr. Gronke Declaration, # 3 Exhibit Bartlett Declaration, # 4 Exhibit Tutor Declaration, # 5 Exhibit Ketchie Declaration, # 6 Exhibit Riggs Declaration, # 7 Exhibit Riggs Exhibits 1−10, # 8 Exhibit Riggs Exhibits 11−17, # 9 Exhibit Riggs Exhibits 18−23)(RIGGS, ALLISON) (Entered: 06/05/2020)

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06/05/2020
06/05/2020
06/08/2020 06/10/2020 06/10/2020 06/10/2020 06/10/2020 06/10/2020
06/11/2020 06/11/2020 06/11/2020

13 NOTICE of Appearance by attorney ALEXANDER MCCLURE PETERS on behalf of Defendants STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND (PETERS, ALEXANDER) (Entered: 06/05/2020)
14 NOTICE of Appearance by attorney KATHRYNE E. HATHCOCK on behalf of Defendants STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND (HATHCOCK, KATHRYNE) (Entered: 06/05/2020)
TEXT ORDER − Plaintiffs have filed a motion for preliminary injunction and expedited consideration. (Doc. 9.) The parties are ordered to confer regarding a briefing schedule and whether an evidentiary hearing may be required. The parties shall file a joint status report with the court as to a proposed briefing schedule by Wednesday, June 10, 2020, at 5 p.m. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 06/08/2020.] (Cable, Frances) (Entered: 06/08/2020)
15 NOTICE of Appearance by attorney NICOLE JO MOSS on behalf of Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE (MOSS, NICOLE) (Entered: 06/10/2020)
16 MOTION to Intervene by PHILIP E. BERGER, TIMOTHY K. MOORE. Response to Motion due by 7/1/2020 (Attachments: # 1 Supplement Proposed Answer, # 2 Text of Proposed Order Proposed Order)(MOSS, NICOLE) (Entered: 06/10/2020)
17 MEMORANDUM filed by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE re 16 MOTION to Intervene filed by PHILIP E. BERGER, TIMOTHY K. MOORE. (Attachments: # 1 Affidavit Declaration of Nicole J. Moss, # 2 Exhibit A − Letter re H1169 from AG Stein, # 3 Exhibit B − 2019−06−19 Holmes − State Defs.' Resp. to PI Motion, # 4 Exhibit C − Press Release− AG Dismisses Case, # 5 Exhibit D − Gov. on SCOTUS Decision)(MOSS, NICOLE) (Entered: 06/10/2020)
18 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 1. (RIGGS, ALLISON) (Entered: 06/10/2020)
TEXT ORDER − The court hereby adopts the parties' briefing schedule as set out in the Joint Status Report, (Doc. 18). Defendants' response to Plaintiffs' motion for preliminary injunction is due on June 19, 2020, by 5 p.m. Plaintiffs' reply is due on June 26, 2020, by 5 p.m. The parties shall notify the court at the earliest possible time as to whether an evidentiary hearing is required. The court declines to set a date for oral argument or hearing before the parties determine whether an evidentiary hearing is necessary and if so, the anticipated length of the hearing. This court is not available for any type of hearing on July 2, 2020. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 06/10/2020.] (Cable, Frances) (Entered: 06/10/2020)
19 NOTICE of Appearance by attorney DAVID H. THOMPSON on behalf of Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE (THOMPSON, DAVID) (Entered: 06/11/2020)
20 NOTICE of Appearance by attorney PETER A. PATTERSON on behalf of Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE (PATTERSON, PETER) (Entered: 06/11/2020)
21 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 06/11/2020, that the parties' Joint Motion, (Doc. 7 ), is GRANTED, that Plaintiffs may file a memorandum in support of their motion for preliminary injunction of up to 15,000 words in length, that Defendants may file a response in opposition to Plaintiffs motion for preliminary injunction of up to 15,000 words in length, and that Plaintiffs may file a reply memorandum in support of their motion for preliminary injunction of up to 7,500 words in length.(Taylor, Abby) (Entered: 06/11/2020)

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TEXT ORDER − Philip E. Berger and Timothy K. Moore, in their official capacities, have filed a motion to intervene, (Doc. 16), to oppose Plaintiffs' suit. Given the abbreviated briefing schedule for the preliminary injunction motion, the court finds a shorter period of time for responsive briefs to the motion to intervene is necessary than might be allowed as the normal response time. Pursuant to LR 7.3(f), the parties shall submit objections or responses to the motion to intervene by Friday, June 12, 2020, at 12 p.m. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 06/11/2020.] (Cable, Frances) (Entered: 06/11/2020)
22 NOTICE of Appearance by attorney JEFFREY LOPERFIDO on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (LOPERFIDO, JEFFREY) (Entered: 06/11/2020)
23 RESPONSE filed by Defendants STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND re 16 MOTION to Intervene filed by TIMOTHY K. MOORE, PHILIP E. BERGER filed by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. Replies due by 6/26/2020 (PETERS, ALEXANDER) (Entered: 06/12/2020)
24 RESPONSE in Opposition re 16 MOTION to Intervene filed by TIMOTHY K. MOORE, PHILIP E. BERGER filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Replies due by 6/26/2020 (RIGGS, ALLISON) (Entered: 06/12/2020)
25 STATUS REPORT JOINT OF PLAINTIFFS AND DEFENDANTS by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (RIGGS, ALLISON) (Entered: 06/12/2020)
TEXT ORDER − Upon consideration of the parties' briefs, (Docs. 23, 24), IT IS HEREBY ORDERED that the Motion to Intervene, (Doc. 16), under Federal Rule of Civil Procedure 24(b) is GRANTED. A short order addressing the motion to intervene will be issued early next week. Intervenors are ordered to adhere to the briefing schedule set out in the June 10, 2020 Text Order. Plaintiffs have requested that the court limit the General Assembly's ability to take discovery. (Doc. 24 at 18−19 n.1.) The court is not aware of any party to this case participating in discovery but the court will not impose limits on discovery as to any party at this time. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 06/12/2020.] (Cable, Frances) (Entered: 06/12/2020)
26 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 06/15/2020, that Proposed Intervenors' Motion to Intervene, (Doc. 16 ), is GRANTED. FURTHER that Proposed Intervenors shall adhere to the briefing schedule as directed by the court on June 10, 2020. (Text Order 06/10/2020.)(Taylor, Abby) (Entered: 06/15/2020)
27 Consent MOTION to Amend Complaint and Motion for Preliminary Injunction, and to Extend Briefing Schedule and Word Limit by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Response to Motion due by 7/9/2020 (Attachments: # 1 Exhibit Proposed Second Amended Complaint, # 2 Exhibit Redline of Proposed Second Amended Complaint, # 3 Exhibit Proposed Amended PI Motion, # 4 Exhibit Redline of Proposed Amended PI Motion, # 5 Text of Proposed Order)(RIGGS, ALLISON)

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(Entered: 06/18/2020)
Motion Submitted re: 27 Consent MOTION to Amend Complaint and Motion for Preliminary Injunction, and to Extend Briefing Schedule and Word Limit, to JUDGE WILLIAM L. OSTEEN, JR (Welch, Kelly) (Entered: 06/18/2020)
28 STATUS REPORT Re Defendants' Consent to Motion to Amend by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (RIGGS, ALLISON) (Entered: 06/18/2020)
29 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 06/18/2020, that Plaintiffs' motion (Doc. 27 ) is GRANTED and that: Plaintiffs shall file the proposed Second Amended Complaint appended to their Motion within 24 hours of this Order; Plaintiffs shall file the proposed Amended Motion for Preliminary Injunction within 24 hours of this Order; 3. Defendants' and Defendant−Intervenors' responses to Plaintiffs' Motion for Preliminary Injunction are due on June 26, 2020, by 11:59 p.m.; Plaintiffs' Reply is due on July 2, 2020, by 11:59 p.m. 5. Defendant−Intervenors' may submit a response to Plaintiffs' Motion for Preliminary Injunction of up to 15,000 words.(Taylor, Abby) (Entered: 06/18/2020)
30 Second AMENDED COMPLAINT against defendant All Defendants, filed by REGINA WHITNEY EDWARDS, DEMOCRACY NORTH CAROLINA, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, ROBERT K. PRIDDY II, LELIA BENTLEY, DONNA PERMAR, WALTER HUTCHINS, JOHN P. CLARK, SUSAN SCHAFFER, MARGARET B. CATES.(RIGGS, ALLISON) (Entered: 06/18/2020)
31 Amended MOTION for Preliminary Injunction by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Response to Motion due by 6/26/2020 (RIGGS, ALLISON) (Entered: 06/18/2020)
32 MOTION to Intervene by REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA. Response to Motion due by 7/9/2020 (Attachments: # 1 Proposed Answer)(TOBIN, R.) (Entered: 06/18/2020)
33 (See Doc. 34 − Corrected Document) MEMORANDUM filed by REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, Republican National Committee re 32 MOTION to Intervene filed by National Republican Congressional Committee, National Republican Senatorial Committee, REPUBLICAN PARTY OF NORTH CAROLINA, Republican National Committee. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration)(TOBIN, R.) (Entered: 06/19/2020)
34 CORRECTED DOCUMENT (MEMORANDUM) re: 33 Memorandum (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration)(TOBIN, R.) (Entered: 06/19/2020)
TEXT ORDER − The Republican National Committee, the National Republican Senatorial Committee, the National Republican Congressional Committee, and the North Carolina Republican Party have filed a motion to intervene, (Doc. 32), to oppose Plaintiffs' challenges to North Carolina election law. Given the abbreviated briefing schedule for the preliminary injunction motion, the court finds a shorter period of time for responsive briefs to the motion to intervene is necessary than might be allowed as the normal response time. Pursuant to LR 7.3(f), the parties shall submit objections or responses to the motion to intervene, (Doc. 32), by Monday, June 22, 2020, at 5 p.m. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 06/19/2020.] (Cable, Frances) (Entered: 06/19/2020)
35 NOTICE of Appearance by attorney BOBBY R. BURCHFIELD on behalf of Intervenor Parties NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE,

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06/22/2020

NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA (BURCHFIELD, BOBBY) (Entered: 06/19/2020)
36 NOTICE of Appearance by attorney MATTHEW M. LELAND on behalf of Intervenor Parties NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA (LELAND, MATTHEW) (Entered: 06/19/2020)
37 RESPONSE filed by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE re 32 MOTION to Intervene filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE filed by PHILIP E. BERGER, TIMOTHY K. MOORE. Replies due by 7/6/2020 (MOSS, NICOLE) (Entered: 06/22/2020)
38 Corrected document re 37 Response to Motion,. (MOSS, NICOLE) (Entered: 06/22/2020)
39 (See 46 Corrected Document) RESPONSE in Opposition re 32 MOTION to Intervene filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE filed by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. Replies due by 7/6/2020 (PETERS, ALEXANDER) (Entered: 06/22/2020)
40 NOTICE of Appearance by attorney GEORGE P. VARGHESE on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (VARGHESE, GEORGE) (Entered: 06/22/2020)
41 NOTICE of Appearance by attorney JOSEPH J. YU on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (YU, JOSEPH) (Entered: 06/22/2020)
42 NOTICE of Appearance by attorney STEPHANIE LIN on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (LIN, STEPHANIE) (Entered: 06/22/2020)
43 RESPONSE in Opposition re 32 MOTION to Intervene filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (RIGGS, ALLISON) (Entered: 06/22/2020)
44 NOTICE of Appearance by attorney REBECCA M. LEE on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (LEE, REBECCA) (Entered: 06/22/2020)

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45 NOTICE of Appearance by attorney RICHARD A. INGRAM on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (INGRAM, RICHARD) (Entered: 06/22/2020)
46 CORRECTED DOCUMENT / RESPONSE in Opposition re 32 Motion to Intervene, (PETERS, ALEXANDER) Modified on 6/23/2020 to edit title of pleading (Welch, Kelly). (Entered: 06/23/2020)
47 REPLY, filed by Intervenor Parties NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, to Response to 32 MOTION to Intervene filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA. (Attachments: # 1 Exhibit)(BURCHFIELD, BOBBY) (Entered: 06/23/2020)
48 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 06/24/2020, that Proposed Intervenors' Motion to Intervene, (Doc. 32 ), is DENIED. (Taylor, Abby) (Entered: 06/24/2020)
49 MOTION for Leave to Take Depositions in Advance of the Preliminary Injunction Hearing and for Expedited Resolution of this Motion Under L.R. 37.1(b) by PHILIP E. BERGER, TIMOTHY K. MOORE. (Attachments: # 1 Text of Proposed Order)(MOSS, NICOLE) (Entered: 06/25/2020)
50 (See 58 Corrected Document) RESPONSE in Opposition re 9 MOTION for Preliminary Injunction and Consent Request to Expedite Briefing/Consideration filed by JOHN P. CLARK, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, SUSAN SCHAFFER, WALTER HUTCHINS, REGINA WHITNEY EDWARDS, DEMOCRACY NORTH CAROLINA, MARGARET B. CATES, LELIA BENTLEY, ROBERT K. PRIDDY II, DONNA PERMAR filed by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. Replies due by 7/10/2020 (Attachments: # 1 Exhibit 1 Bell Declaration, # 2 Exhibit 2 Jessup Declaration, # 3 Exhibit 3 Prince Declaration, # 4 Exhibit 4 Burghardt Declaration, # 5 Exhibit 5 Speight Declaration)(PETERS, ALEXANDER) Modified on 6/30/2020 − See #58 Corrected Document (Welch, Kelly). (Entered: 06/26/2020)
51 RESPONSE in Opposition re 31 Amended MOTION for Preliminary Injunction filed by JOHN P. CLARK, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, SUSAN SCHAFFER, WALTER HUTCHINS, REGINA WHITNEY EDWARDS, DEMOCRACY NORTH CAROLINA, MARGARET B. CATES, LELIA BENTLEY, ROBERT K. PRIDDY II, DONNA PERMAR filed by PHILIP E. BERGER, TIMOTHY K. MOORE. Replies due by 7/10/2020 (Attachments: # 1 Exhibit 1 HB 1169, # 2 Exhibit 2 Block Declaration, # 3 Exhibit 3 Callanan Declaration, # 4 Exhibit 4 Devore Declaration, # 5 Exhibit 5 Hawkins Declaration, # 6 Exhibit 6 Plush Declaration, # 7 Exhibit 7 Schauder Declaration, # 8 Exhibit 8 Weatherly Declaration)(MOSS, NICOLE) (Entered: 06/26/2020)
52 MOTION for Reconsideration re 48 Order on Motion to Intervene by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA. Response to Motion due by 7/17/2020 (Attachments: # 1 Text of Proposed Order Reconsideration, # 2 Text of Proposed Order Amicus Curiae, # 3 Supplement Proposed Brief of Amicus Curaie, # 4 Exhibit to Proposed Brief of Amicus Curiae)(BURCHFIELD, BOBBY) (Entered: 06/26/2020)
53 BRIEF re 52 MOTION for Reconsideration re 48 Order on Motion to Intervene by Intervenor Parties NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE,

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NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA. (BURCHFIELD, BOBBY) (Entered: 06/26/2020)
54 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Intervenor Parties NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA (BURCHFIELD, BOBBY) (Entered: 06/26/2020)
55 (Corrected Document − forthcoming) RESPONSE in Opposition re 52 MOTION for Reconsideration re 48 Order on Motion to Intervene filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Replies due by 7/13/2020 (RIGGS, ALLISON) Modified on 6/29/2020 to reflect filed in error, corrected document forthcoming) (Welch, Kelly). (Entered: 06/28/2020)
56 NOTICE of Appearance by attorney MICHELLE E. KANTER COHEN on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (KANTER COHEN, MICHELLE) (Entered: 06/29/2020)
57 RESPONSE in Opposition re 52 MOTION for Reconsideration re 48 Order on Motion to Intervene filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE filed by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. Replies due by 7/13/2020 (PETERS, ALEXANDER) (Entered: 06/29/2020)
TEXT ORDER − Legislative Defendants have moved to take depositions prior to the preliminary injunction hearing and have requested an expedited resolution of that motion. (Doc. 49.) The parties have agreed this motion can be resolved in an expedited fashion pursuant to LR 37.1(b). In addition to resolving the motion, this court will set a hearing date and, while the parties have suggested a one−day hearing is sufficient, Legislative Defendants express concern that one day may not be sufficient particularly if no depositions are permitted. (Id. at 3.) This court agrees this issue should be addressed in an expedited fashion. The court therefore directs Plaintiffs and the remaining Defendants to respond to Legislative Defendants' motion, (Doc. 49), if at all, by Tuesday, June 30, 2020, at midnight. In lieu of a telephone conference as described by LR 37.1(b), this court will hold a hearing on Wednesday, July 1, 2020, at 12:30 p.m. in Greensboro Courtroom 1. One attorney on behalf of Plaintiffs and one attorney on behalf of Defendants, other than Legislative Defendants, shall be required to appear and speak for the represented party. While the court prefers that one attorney on behalf of Legislative Defendants appear for this hearing, the court will permit counsel for Legislative Defendants to appear by telephone in light of the short notice. All counsel not appearing in court may make arrangements with the case manager to appear by telephone. However, those appearing by telephone will be allowed only a limited opportunity to argue with respect to the issues. At the hearing, the court will address Legislative Defendants' motion for permission to take depositions, the hearing date, the amount of time allowed for the hearing, and any arrangements necessary for the hearing in light of current conditions. [Issued by JUDGE WILLIAM L. OSTEEN,

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JR., on 06/29/2020.] (Cable, Frances) (Entered: 06/29/2020)
Set Deadlines/Hearings: Motion Hearing set for 7/1/2020 12:30 PM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 06/29/2020)
58 (Corrected Document) re 50 Response in Opposition to 9 MOTION for Preliminary Injunction and Consent Request to Expedite Briefing/Consideration. (Attachments: # 1 Exhibit 1 Bell Declaration, # 2 Exhibit 2 Jessup Declaration, # 3 Exhibit 3 Prince Declaration, # 4 Exhibit 4 Burghardt Declaration, # 5 Exhibit 5 Speight Declaration)(PETERS, ALEXANDER) Modified on 6/30/2020 to associate with Motion Doc. 9 (Welch, Kelly). (Entered: 06/30/2020)
59 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 06/30/2020, that Proposed Intervenors' Motion for Reconsideration, (Doc. 52 ), is DENIED with regard to the motion to reconsider and GRANTED with regard to the request for leave to file amici curiae brief. (Taylor, Abby) (Entered: 06/30/2020)
60 NOTICE of Appearance by attorney HILARY H. KLEIN on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (KLEIN, HILARY) (Entered: 06/30/2020)
61 RESPONSE in Opposition re 49 MOTION for Leave to Take Depositions in Advance of the Preliminary Injunction Hearing and for Expedited Resolution of this Motion Under L.R. 37.1(b) filed by TIMOTHY K. MOORE, PHILIP E. BERGER filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (RIGGS, ALLISON) (Entered: 06/30/2020)
62 MOTION for Extension of Time to File Answer re 30 Amended Complaint, Second by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. (Attachments: # 1 Text of Proposed Order)(PETERS, ALEXANDER) (Entered: 07/01/2020)
63 MOTION to Expand Word Limit and Extend Deadline for Plaintiffs' Reply by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Response to Motion due by 7/22/2020 (Attachments: # 1 Text of Proposed Order)(VARGHESE, GEORGE) (Entered: 07/01/2020)
64 REPLY, filed by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE, to Response to 49 MOTION for Leave to Take Depositions in Advance of the Preliminary Injunction Hearing and for Expedited Resolution of this Motion Under L.R. 37.1(b) filed by PHILIP E. BERGER, TIMOTHY K. MOORE. (MOSS, NICOLE) (Entered: 07/01/2020)
Motions Submitted re: 49 MOTION for Leave to Take Depositions in Advance of the Preliminary Injunction Hearing and for Expedited Resolution of this Motion Under L.R. 37.1(b), 62 MOTION for Extension of Time to File Answer re 30 Amended Complaint, 63 MOTION to Expand Word Limit and Extend Deadline for Plaintiffs' Reply, to JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 07/01/2020)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN, JR., in G−1: Hearing held on 7/1/2020 re 9 Plaintiffs' Consent Request to Expedite Briefing/Consideration. Attorney Hilary Klein appeared in−person on behalf of Plaintiffs. Attorneys Allison Riggs, Michelle Cohen, Joseph Yu and Stephanie Lin attended telephonically on behalf of Plaintiffs. Attorney Alexander Peters appeared

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in−person on behalf of Defendants. Attorney Beth Hathcock attended telephonically on behalf of Defendants. Attorneys Peter Patterson, David Thompson and Nicole Moss attended telephonically on behalf of the Legislative Defendants. Attorneys Bobby Burchfield, Matt Leland and Scott Tobin attended telephonically on behalf of the Republican Committee. For the reasons stated on the record, after hearing from the parties the Court denied in part plaintiffs' motion to extend the filing of any declarations in support of their reply brief and granted plaintiffs until 7/3/2020 to file their reply in support of their motion for preliminary injunction. Declarations in support are due by 7/2/2020; Court allowed plaintiffs to expand the word limit of their brief from 7,500 words to 10,000 words (Doc. 63 .) Any responses are due on or before 7/6/2020 by 11:00 a.m.; Court directed the parties to consult before the hearing on 7/6/2020 and be prepared to address any issues that could possibly be bifurcated. Status Conference set Monday, July 6, 2020 at 2:00 p.m. Oral Argument Hearing set July 9, 2020 at 9:30 a.m. If it becomes necessary to take evidence or hold additional proceedings they will be set on 7/10/2020 and during the week of 7/20/2020. (Court Reporter Joseph Armstrong.) (Welch, Kelly) Modified on 7/2/2020 to correct the date of the oral argument hearing (Welch, Kelly). (Entered: 07/01/2020)
Set Deadlines/Hearings: Status Conference set for 7/6/2020 02:00 PM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 07/01/2020)
ORAL ORDER denying in part and granting in part 63 MOTION to Expand Word Limit and Extend Deadline for Plaintiffs' Reply. Issued by JUDGE WILLIAM L. OSTEEN, JR on 7/1/2020. (See Minute Entry on 7/1/2020) (Welch, Kelly) (Entered: 07/02/2020)
Set Deadlines/Hearings: Oral Argument Hearing set for 7/9/2020 09:30 AM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. If necessary further proceedings will be set for 7/10/2020 09:30 AM. (Welch, Kelly) (Entered: 07/02/2020)
65 NOTICE of Appearance by attorney JOSHUA BRIAN HOWARD on behalf of Amicus Public Interest Legal Foundation (HOWARD, JOSHUA) (Entered: 07/02/2020)
66 MOTION for Leave to File Amicus Curiae Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction by Public Interest Legal Foundation. Response to Motion due by 7/23/2020 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Proposed Amicus Brief, # 4 Exhibit)(HOWARD, JOSHUA) (Entered: 07/02/2020)
67 Corporate Disclosure Statement by Public Interest Legal Foundation. (HOWARD, JOSHUA) (Entered: 07/02/2020)
68 NOTICE of Appearance by attorney KAYLAN PHILLIPS on behalf of Amicus Public Interest Legal Foundation (PHILLIPS, KAYLAN) (Entered: 07/02/2020)
69 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 7/2/2020, that Defendants' motion for extension, (Doc. 62 ), is GRANTED and that State Defendants shall have up to and including July 16, 2020, within which to answer or otherwise respond to the Second Amended Complaint. (Garland, Leah) (Entered: 07/02/2020)
70 NOTICE OF APPEAL as to 59 Order on Motion for Reconsideration, 48 Order on Motion to Intervene by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA. Filing fee $ 505, receipt number 0418−2836610. (BURCHFIELD, BOBBY) (Entered: 07/02/2020)
Motion Referred re: 66 MOTION for Leave to File Amicus Curiae Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction, to JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 07/02/2020)
71 MOTION to Dismiss by PHILIP E. BERGER, TIMOTHY K. MOORE. Response to Motion due by 7/23/2020 (MOSS, NICOLE) (Entered: 07/02/2020)
72 MEMORANDUM filed by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE re 71 MOTION to Dismiss filed by PHILIP E. BERGER, TIMOTHY K.

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MOORE. (MOSS, NICOLE) (Entered: 07/02/2020)
73 AFFIDAVIT in Support re 31 Amended MOTION for Preliminary Injunction Index of Plaintiffs' Reply Declarations filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (Attachments: # 1 Exhibit Lopez Reply Decl., # 2 Exhibit Nicholas Reply Decl., # 3 ***STRICKEN***Exhibit Bentley Reply Decl., # 4 Exhibit Murray Reply Decl., # 5 ***STRICKEN IN PART*** (Paragraphs 11,12,13)Exhibit Gronke Reply Decl., # 6 ***STRICKEN IN PART*** (Paragraphs 5,6,7,8) Exhibit Bartlett Reply Decl., # 7 Exhibit Ketchie Reply Decl., # 8 ***STRICKEN***Exhibit Myers Decl., # 9 ***STRICKEN***Exhibit Quinn Decl.)(KLEIN, HILARY) Modified on 7/27/2020 , See 116 MEMORANDUM OPINION AND ORDER (Taylor, Abby). (Entered: 07/02/2020)
74 REPLY, filed by Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER, to Response to 31 Amended MOTION for Preliminary Injunction filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (Attachments: # 1 Exhibit Unpublished League of Women Voters of N.J. v. Way)(KLEIN, HILARY) (Entered: 07/03/2020)
75 STATUS REPORT of All Parties by LELIA BENTLEY, PHILIP E. BERGER, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, TIMOTHY K. MOORE, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (RIGGS, ALLISON) (Entered: 07/06/2020)
76 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 70 Notice of Appeal. (Garland, Leah) (Entered: 07/06/2020)
77 MOTION to Strike 73 Affidavit in Support of Motion,, by PHILIP E. BERGER, TIMOTHY K. MOORE. Response to Motion due by 7/27/2020 (MOSS, NICOLE) (Entered: 07/06/2020)
78 MEMORANDUM filed by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE re 77 MOTION to Strike 73 Affidavit in Support of Motion,, filed by PHILIP E. BERGER, TIMOTHY K. MOORE. (MOSS, NICOLE) (Entered: 07/06/2020)
TEXT ORDER − While the court appreciates the status report filed today, (Doc. 75), the question to which the status report responds was not the question the court intended to ask. The court's inquiry was not directed to bifurcating the hearing. Instead, it was an effort to determine which issues were the most time sensitive. The question was posed in an effort to try to determine what an expedited process needed to consider. For example, a request for an expedited process could mean entry of an order by September 3, 2020. While the court is fully aware that that is not the case, the question remains as to which matters are urgent in terms of timing; that is, what, if anything, is occurring now. Executive Defendants made it clear that printing is presently in final stages. In terms of this court's request, this court was seeking some guidance to allow the court to better understand what the term expedited should be understood to mean and why that is the case. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/06/2020.] (Cable, Frances) (Entered: 07/06/2020)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN, JR., in G−1: Status Conference held on 7/6/2020. Attorney Hilary Klein appeared in−person on behalf of Plaintiffs. Attorneys Allison Riggs, Michelle Cohen, Joseph Yu and Stephanie Lin attended telephonically on behalf of Plaintiffs. Attorney Alexander Peters appeared in−person on behalf of Defendants. Attorney Beth Hathcock attended telephonically on behalf of Defendants. Attorneys Peter Patterson, David Thompson and Nicole Moss attended telephonically on behalf of the Legislative Defendants. Attorney Matthew Leland attended telephonically on behalf of the Republican

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Committee. Attorney Kaylan Phillips attended telephonically on behalf of the Public Interest Legal Foundation. For the reasons stated on the record and the Court's concerns of the issues raised, Plaintiffs shall file a response to 77 Motion to Strike by 7/7/2020 at 5:00 p.m. Plaintiffs' response shall not exceed 3,657 words. State Defendants are permitted to respond if they chose to do so. (Court Reporter Joseph Armstrong.) (Welch, Kelly) (Entered: 07/06/2020)
79 RESPONSE re 77 MOTION to Strike 73 Affidavit in Support of Motion,, filed by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. Replies due by 7/21/2020 (PETERS, ALEXANDER) (Entered: 07/07/2020)
80 RESPONSE in Opposition re 77 MOTION to Strike 73 Affidavit in Support of Motion,, filed by TIMOTHY K. MOORE, PHILIP E. BERGER filed by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Replies due by 7/21/2020 (VARGHESE, GEORGE) (Entered: 07/07/2020)
81 NOTICE of Docketing Record on Appeal from USCA re 70 Notice of Appeal, filed by NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE. USCA Case Manager is Kirsten Hancock. USCA Case Number 20−1728. (Garland, Leah) (Entered: 07/07/2020)
82 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 7/8/2020, that Public Interest Legal Foundation's motion for leave to file amicus curiae brief, (Doc. 66 ), is GRANTED and that Public Interest Legal Foundation shall file their amicus curiae brief within five days of this Order. FURTHER ORDERED that Public Interest Legal Foundation shall file their Memorandum, (Doc. 66 −1), attached to their Motion for Leave to File Amicus Curiae Brief as a separate pleading. (Garland, Leah) (Entered: 07/08/2020)
83 AMICUS BRIEF filed by Intervenor Parties NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF NORTH CAROLINA (Attachments: # 1 Exhibit)(BURCHFIELD, BOBBY) (Welch, Kelly). (Entered: 07/08/2020)
TEXT ORDER − The parties shall stand down from preparation for a preliminary injunction hearing. Oral argument on the motion for a preliminary injunction, currently set for tomorrow, will be continued and rescheduled to a date to be determined. The court will hold a hearing tomorrow beginning at 10:00 a.m. to address the two pending motions filed by Legislative Defendants, (Docs. 49 and 77), and other matters. At least one attorney from all sides, with full authority to speak for the parties, shall appear to argue as necessary. Counsel not appearing may appear and listen by telephone but will not be permitted to participate or argue. Additional information will be provided in a brief written order to be filed this afternoon. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/08/2020.] (Cable, Frances) (Entered: 07/08/2020)
84 MEMORANDUM in Support of 66 Motion for Leave to File Amicus Curiae Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Amicus Public Interest Legal Foundation. (HOWARD, JOSHUA) (Entered: 07/08/2020)
85 AMICUS BRIEF filed by Amicus Public Interest Legal Foundation (Attachments: # 1 Exhibit)(HOWARD, JOSHUA) (Entered: 07/08/2020)
Set Deadlines/Hearings: Motion Hearing set for 7/9/2020 10:00 AM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (See Text Order issued 7/8/2020) (Welch, Kelly) (Entered: 07/08/2020)

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86 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 7/8/2020 as set out herein. (Sheets, Jamie) (Entered: 07/08/2020)
87 NOTICE by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER re 31 Amended MOTION for Preliminary Injunction of Withdrawal in Part of Amended Motion For Preliminary Injunction (Attachments: # 1 Exhibit 1)(VARGHESE, GEORGE) (Entered: 07/08/2020)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN, JR in G−1: Motion Hearing held on 7/9/2020. Attorney Hilary Klein appeared in−person on behalf of Plaintiffs. Attorneys George Varghese, Allison Riggs, Michelle Cohen, Joseph Yu, Stephanie Lin and Rebecca Lee attended telephonically on behalf of Plaintiffs. Attorney Alexander Peters appeared in−person on behalf of Defendants. Attorney Beth Hathcock attended telephonically on behalf of Defendants. Attorney Nicole Moss appeared in−person on behalf of the Legislative Defendants. Attorneys Peter Patterson and David Thompson attended telephonically on behalf of the Legislative Defendants. Parties presented oral arguments as to 49 MOTION for Leave to Take Depositions in Advance of the Preliminary Injunction Hearing and for Expedited Resolution of this Motion Under L.R. 37.1(b); and 77 MOTION to Strike 73 Affidavits in Support of Motion. After hearing from Counsel the Court made its preliminary findings. (Written Order forthcoming.) Court directs the parties to confer and submit a status report for the Court's review; Court will advise the parties if a telephonic−conference is needed as tentatively set for Monday, 7/13/2020 at 12:00 noon. Preliminary Injunction hearing date certain remains to be determined. (Court Reporter Joseph Armstrong.) (Welch, Kelly) (Entered: 07/09/2020)
88 JOINT STATUS REPORT re: Request for Clarification on use of Video Testimony filed by all parties. Est. Trial Days: 0. (KLEIN, HILARY) (Entered: 07/10/2020)
89 NOTICE regarding 88 Parties' Joint Status Report signed by JUDGE WILLIAM L. OSTEEN, JR. on 7/10/2020. (Daniel, J) (Entered: 07/10/2020)
90 JOINT STATUS REPORT re Discovery and PI Hearing Plan filed by all parties. Est. Trial Days: N/A. (KLEIN, HILARY) (Entered: 07/13/2020)
TEXT ORDER − It appears the parties have generally agreed to a procedure for an expedited evidentiary hearing. (See Doc. 90.) This court will hold a brief conference on the procedures at noon today as previously scheduled; the case manager will provide the parties with telephone conference information. In preparation for that call, the court tentatively advises the parties as follows: (1) The court will adopt the schedule and format as described for the testimony. This court does not find all of the witnesses described confront an undue hardship. Agreeing to serve as expert witnesses carries an obligation to appear as directed. Those witnesses should have understood that when agreeing to offer testimony. Nevertheless, the court accepts the procedures described in light of the agreement of the parties rather than this court's finding of undue hardship. Because the court is proceeding in this fashion, the parties should be prepared to stipulate that the court can resolve disputes of fact as a part of this procedure. (2) Because the majority of witnesses will be testifying remotely, the court agrees with Legislative Defendants that having a transcript of the discovery deposition before the evidentiary hearing is conducted is appropriate and the parties should proceed in that fashion. (3) This court will hold an evidentiary hearing and argument on July 20, 21, and 22 as necessary. The parties will be notified of the start time each day. (4) Any other matters will be resolved during the brief telephone conference as necessary. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/13/2020.] (Cable, Frances) (Entered: 07/13/2020)
91 NOTICE of Appearance by attorney NEAL T. MCHENRY on behalf of Defendants STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND (MCHENRY, NEAL) (Entered: 07/13/2020)

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Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN, JR., in G−1: Telephone Conference held on 7/13/2020. The following participants attended via tele−conference: Hilary Klein, Allison Riggs, Michelle Cohen, Joseph Yu, Stephanie Lin, Rebecca Lee, Alexander Peters, Neil McHenry, Nicole Moss, Peter Patterson, David Thompson and Matthew Leland. The Court addressed its Text Order issued this morning. (Written Memorandum Opinion forthcoming) Evidentiary Hearing on Motion for Preliminary Injunction set July 20, 21 & 22, 2020. (Court Reporter Joseph Armstrong.) (Welch, Kelly) (Entered: 07/13/2020)
TEXT ORDER − This court requests that the parties prepare a status report to advise how many attorneys and other individuals (including paralegals, parties, or assistants) may be appearing for the evidentiary hearing and argument. Because of social distancing and other requirements in the courthouse, arranging a courtroom for a hearing with large numbers of individuals inside the bar requires planning. Counsel should be prepared for an arrangement that permits no more than two individuals or two attorneys at counsel table in order to maintain a reasonable social distance at those tables while in the courtroom. Other attorneys, parties, and staff will have to be seated in the gallery behind counsel table. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/13/2020.] (Cable, Frances) (Entered: 07/13/2020)
92 STATUS REPORT FOR SCHEDULING WITNESS TESTIMONY (JOINT) by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (VARGHESE, GEORGE) (Entered: 07/14/2020)
93 NOTICE of Appearance by attorney JONATHAN L. SHERMAN on behalf of Plaintiffs LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER (SHERMAN, JONATHAN) (Entered: 07/15/2020)
94 Second MOTION for Extension of Time to File Answer re 30 Amended Complaint, by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. (Attachments: # 1 Text of Proposed Order)(PETERS, ALEXANDER) (Entered: 07/15/2020)
Motion Submitted re: 94 Second MOTION for Extension of Time to File Answer re 30 Amended Complaint, to JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 07/15/2020)
TEXT ORDER − This court has one factual question for Dr. Plush and Dr. Murray if the parties have not considered it. The question is as follows: "Under what circumstances is an individual deemed to have been exposed to COVID−19 by an individual who either has COVID−19 or becomes positive for COVID−19 such that the risk of transmission is sufficient to require the individual to quarantine for 14 days?" To explain, this court understands that exposure is deemed to occur when an individual is in the presence of an individual who either has COVID−19 or becomes positive for COVID−19 if the individual was in the presence of the individual positive for COVID−19 for a period of at least 10 minutes and the individual either failed to maintain a social distance of six feet or more or failed to wear protective gear, including a mask, while in the presence of the positive individual. Is that correct? The court understands Dr. Plush has already been deposed and Dr. Murray will be deposed on July 17. If the question has been previously posed to Dr. Plush, then the court requests the parties pose the same or a similar question to Dr. Murray. If this question was not propounded to Dr. Plush, the parties may supplement his response by any agreed−upon means or, if Dr. Plush and Dr. Murray are in agreement with the answer to the court's question, the parties may submit a stipulated response of the doctors. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/15/2020.] (Cable, Frances) (Entered: 07/15/2020)

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NOTICE of Docket Text/Event Modification to Counsel: [Text Order] issued at 5:38 PM was a duplicate entry and has been removed from the Court's docket. Please refer to the Text Order issued 7/15/2020 at 5:40 PM. (Welch, Kelly) (Entered: 07/15/2020)
95 STATUS REPORT (Joint) by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (VARGHESE, GEORGE) (Entered: 07/15/2020)
Set/Reset Deadlines/Hearings: Motion Hearing set for 7/20/2020, 7/21/2020 & 7/22/2020 at 09:30 AM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 07/16/2020)
96 Consent MOTION for Extension of Time to File Response/Reply to Intervenor−Defendants' Motion to Dismiss by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. (Attachments: # 1 Text of Proposed Order)(KLEIN, HILARY) (Entered: 07/16/2020)
97 JOINT STATUS REPORT Supplemental re Attendees for Hearing filed by all parties. Est. Trial Days: N/A. (KLEIN, HILARY) (Entered: 07/17/2020)
98 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 7/17/2020, that Defendants' motion for extension, (Doc. 94 ), is GRANTED and that State Defendants shall have up to and including July 30, 2020, within which to answer or otherwise respond to the Second Amended Complaint. (Garland, Leah) (Entered: 07/17/2020)
Motion Submitted re: 96 Consent MOTION for Extension of Time to File Response/Reply to Intervenor−Defendants' Motion to Dismiss, to JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 07/17/2020)
TEXT ORDER − The court has reviewed the status report filed by the parties on July 17, 2020, (Doc. 97), and appreciates the update. The parties are welcome to bring more than two counsel or other individuals, but only two individuals can be seated at counsel table inside the bar. The court approves Plaintiffs' request for a paralegal in the gallery. The court approves Legislative Defendants' request for all three attorneys, but only two attorneys may be seated at counsel table at one time. Based on the prior status report, the courtroom was set up in anticipation of Mr. Peters being the only attorney inside the bar for Executive Defendants. All of the remaining counsel are likely able to attend and appear on behalf of Executive Defendants, as well as Katelyn Love, but the court will have to check on seating and spacing in the courtroom. The court will make an effort to re−arrange the courtroom today to accommodate two attorneys at counsel table for Executive Defendants, but we may have to use a partition and require one of those attorneys to use a mask while inside the bar. Further considerations include the following: (1) Examinations of witnesses and arguments shall take place inside the bar. With only two attorneys at each counsel table, if the parties divide examinations or arguments, they may have to rotate at counsel table. (2) Social distances and masks will be required in the gallery but not inside the bar. (3) Inside the bar, counsel are expected to use their best efforts to socially distance while at counsel table. If counsel need to confer, in the court's experience thus far, it is best to advise the court of the need. The court will permit reasonable interruptions for that purpose and use the background noise to mask any discussion. In the court's experience, it is best if counsel place masks or face coverings on when trying to speak privately in close proximity while in the courtroom. (4) All individuals seated in the gallery will maintain social distancing. Some space has to be maintained for members of the press and or public should they wish to attend. The court will provide additional information later today if available. (5) This court is moving the start time on Monday morning to 9:45 a.m. and directs the parties to be present by 9:15 a.m. to allow some time to see the courtroom and make arrangements at counsel tables and in the courtroom. (6) Pursuant to the CARES Act and Standing Order 16, counsel may dial in and listen to the hearing remotely. A party may also listen remotely but only in the office of an attorney for that party. The parties are hereby warned that Judicial Conference policy prohibits anyone from recording, or causing the recording of, or to broadcast or rebroadcast a federal judicial proceeding in any form unless authorized to do so. Any recording, broadcast,

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07/20/2020 07/20/2020 07/20/2020 07/20/2020 07/20/2020
07/20/2020 07/21/2020

or rebroadcast by any person or entity listening to a court proceeding remotely will be subject to sanctions, including removal of any court−issued media credentials, denial of entry to future proceedings, or other sanctions including contempt as may be deemed necessary by the court. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/17/2020.] (Cable, Frances) (Entered: 07/17/2020)
99 COURTROOM DECORUM AND CONDUCT ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 7/19/2020 as set out; (Welch, Kelly) (Entered: 07/19/2020)
100 Suggestion of Subsequently Decided Authority re 51 Response in Opposition to Motion,, by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE. (Attachments: # 1 Exhibit 1 Seila Law LLC v. Consumer Financial Protection Bureau, # 2 Exhibit 2 Merrill v. People First of Alabama)(MOSS, NICOLE) (Entered: 07/19/2020)
101 NOTICE by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND of Filing (Attachments: # 1 Exhibit A NCSBE July 17, 2020 Emergency Order)(PETERS, ALEXANDER) (Entered: 07/20/2020)
102 NOTICE by PHILIP E. BERGER, TIMOTHY K. MOORE and All Parties (Attachments: # 1 Exhibit 1 Plush, # 2 Exhibit 2 Plush, # 3 Exhibit 3 Plush, # 4 Exhibit 5 Plush, # 5 Exhibit 6 Plush, # 6 Exhibit 7 Plush, # 7 Exhibit 9 Plush, # 8 Exhibit 10 Plush, # 9 Exhibit Neesby Affidavit, # 10 Exhibit Dowless Order)(MOSS, NICOLE) (Entered: 07/20/2020)
103 ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 07/20/2020, that Plaintiffs' motion for extension, (Doc. 96 ), is GRANTED and that Plaintiffs shall have up to and including August 6, 2020, within which to respond to Defendant−Intervenors' Motion to Dismiss.(Taylor, Abby) (Entered: 07/20/2020)
104 NOTICE by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER of Letter (Attachments: # 1 Attachment A − Declaration of Gary Bartlett)(VARGHESE, GEORGE) (Entered: 07/20/2020)
CASE REFERRED re: 101 Notice (Other), 102 Notice (Other), 104 Notice (Other), to JUDGE WILLIAM L. OSTEEN, JR. (Welch, Kelly) (Entered: 07/20/2020)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN, JR in G−1: Evidentiary Hearing held on 7/20/2020. The following attorneys appeared in−person: Hilary Klein, Allison Riggs, Alexander Peters, Nicole Moss, David Thompson and Peter Patterson. Attorneys George Varghese, Joseph Yu, Michelle Kanter Cohen, Stephanie Lin, Richard Ingram, Jonathan Sherman, Neal McHenry, Beth Hathcock, Matthew Leland and Kaylan Phillips attended telephonically. Plaintiffs presented witnesses/exhibits by previously recorded video testimony; Court directs the parties to file the previously marked exhibits that were presented during the video testimony on CM/ECF; Court takes objections lodged during testimony under advisement; Parties will resume with evidence on 7/21/2020 at 9:00 AM. (Court Reporter Joseph Armstrong.) (Welch, Kelly) Modified on 7/21/2020 to edit names of telephone participants (Welch, Kelly). (Entered: 07/20/2020)
Set/Reset Deadlines/Hearings: Evidentiary Hearing continued to 7/21/2020 at 09:00 AM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 07/20/2020)
105 NOTICE by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER re Evidentiary Hearing,,, (Attachments: # 1 Exhibit 3 − Oxford University Press July 6, 2020 Article, # 2

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07/21/2020
07/21/2020 07/22/2020 07/23/2020

Exhibit 4 − World Health Organization July 9, 2020 Q&A, # 3 Exhibit 5 − Centers for Disease Control and Prevention March 6, 2020 Report, # 4 Exhibit 6 − Centers for Disease Control and Prevention June 22, 2020 Report)(VARGHESE, GEORGE) (Entered: 07/21/2020)
106 Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN, JR in G−1: Evidentiary Hearing held on 7/21/2020, continued from 7/20/2020. The following attorneys appeared in−person: Hilary Klein, Allison Riggs, Alexander Peters, Nicole Moss, David Thompson and Peter Patterson. Other counsel associated with parties in this matter listened via telephone. Parties presented evidence; Evidence concluded; Argument hearing set 7/22/2020 at 9:00 AM. (See Exhibit/Witness list) (Court Reporter Joseph Armstrong.) Modified on 7/22/2020 to attach exhibit/witness list (Welch, Kelly). (Entered: 07/21/2020)
Set/Reset Deadlines/Hearings: Argument Hearing on Plaintiffs' Motion for Preliminary Injunction set for 7/22/2020 09:00 AM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (Welch, Kelly) (Entered: 07/21/2020)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN, JR., in G−1: Oral Argument Hearing held on 7/22/2020. The following attorneys appeared in−person: Hilary Klein, Allison Riggs, Alexander Peters, Nicole Moss, David Thompson and Peter Patterson. Other counsel associated with parties in this matter listened via telephone. Oral arguments presented by the Parties with respect to 61 Plaintiffs Amended Motion for Preliminary Injunction; Court takes matter under advisement. (Court Reporter Joseph Armstrong.) (Welch, Kelly) (Entered: 07/22/2020)
107 TRANSCRIPT of videotaped remote testimony of Dr. Megan Murray previously recorded on 7/17/2020 and presented during the evidentiary hearing held 7/20/2020. Transcript may be viewed at the court public terminal before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

07/23/2020

(See Exhibit/Witness List (Doc. 106 .)) Release of Transcript Restriction set for 10/26/2020. (Welch, Kelly) (Entered: 07/23/2020)
108 TRANSCRIPT of videotaped video−teleconference zoom testimony of Marshall Tutor previously recorded on 7/17/2020 and presented during the evidentiary hearing held 7/20/2020. Transcript may be viewed at the court public terminal before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

07/23/2020

See Exhibit/Witness List (Doc. 106 .)) Release of Transcript Restriction set for 10/26/2020. (Welch, Kelly) (Entered: 07/23/2020)
109 TRANSCRIPT of videotaped video−teleconference zoom testimony of Gary Bartlett previously recorded on 7/17/2020 and presented during the evidentiary hearing held 7/20−21/2020. Transcript may be viewed at the court public terminal before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically

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available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

07/23/2020

(See Exhibit/Witness List (Doc. 106 .)) Release of Transcript Restriction set for 10/26/2020. (Welch, Kelly) (Entered: 07/23/2020)
110 TRANSCRIPT of videotaped hearing testimony of Paul Gronke, Ph.D., previously recorded on 7/17/2020 and presented during the evidentiary hearing held 7/21/2020. Transcript may be viewed at the court public terminal before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

07/23/2020

(See Exhibit/Witness List (Doc. 106 .)) Release of Transcript Restriction set for 10/26/2020. (Welch, Kelly) (Entered: 07/23/2020)
111 TRANSCRIPT of videotaped deposition Dr. Theodore J. Plush, D.O., previously recorded on 7/17/2020 and presented during the evidentiary hearing held 7/21/2020. Transcript may be viewed at the court public terminal before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

07/24/2020 07/26/2020

(See Exhibit/Witness List (Doc. 106 .)) Release of Transcript Restriction set for 10/26/2020. (Welch, Kelly) (Entered: 07/23/2020)
TEXT ORDER − The court requests that Executive Defendants file a representative absentee by mail sample ballot for the court's review. If Executive Defendants anticipate different ballot lengths in different counties, the court requests Executive Defendants file a ballot that fairly reflects a longer ballot rather than an anticipated shorter ballot. The court recognizes that the candidates for all races may not yet be finalized. The court is most interested in the number of races in which votes will be cast. If Plaintiffs or Legislative Defendants do not believe the filing by Executive Defendants fairly reflects a sample ballot as requested by this order, they may file their own sample ballot. This court understands that any sample ballots filed may not accurately reflect the final absentee by mail sample ballot; the court is only requesting a fair representation to the best of the parties' ability at this time. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/24/2020.] (Cable, Frances) (Entered: 07/24/2020)
112 Transcript of Evidentiary Hearing, Volume 1 of 3, held on 07/20/2020, before Judge William L. Osteen, Jr.. Court Reporter/Transcriber J. Armstrong, Telephone number 336−332−6034. Email: joseph_armstrong@ncmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

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07/26/2020

Redaction Request due 8/20/2020. Redacted Transcript Deadline set for 8/31/2020. Release of Transcript Restriction set for 10/29/2020. (Armstrong, Joe) (Entered: 07/26/2020)
113 Transcript of Evidentiary Hearing, Volume 2 of 3, held on 07/21/2020, before Judge William L. Osteen, Jr.. Court Reporter/Transcriber J. Armstrong, Telephone number 336−332−6034. Email: joseph_armstrong@ncmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

07/26/2020

Redaction Request due 8/20/2020. Redacted Transcript Deadline set for 8/31/2020. Release of Transcript Restriction set for 10/29/2020. (Armstrong, Joe) (Entered: 07/26/2020)
114 Transcript of Evidentiary Hearing, Volume 3 of 3, held on 07/22/2020, before Judge William L. Osteen, Jr.. Court Reporter/Transcriber J. Armstrong, Telephone number 336−332−6034. Email: joseph_armstrong@ncmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

07/27/2020 07/27/2020
07/29/2020

Redaction Request due 8/20/2020. Redacted Transcript Deadline set for 8/31/2020. Release of Transcript Restriction set for 10/29/2020. (Armstrong, Joe) (Entered: 07/26/2020)
115 NOTICE by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND of filing (Attachments: # 1 Exhibit A Representative Ballot, # 2 Exhibit B Representative Ballot Return Envelope)(PETERS, ALEXANDER) (Entered: 07/27/2020)
116 MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 07/27/2020, that Legislative Defendants' motion to strike, (Doc. 77 ), is GRANTED IN PART. This court STRIKES the declarations of Kenya Myers, (Doc. 73 −8), and Jake Quinn, (Doc. 73 −9), in their entirety. The declaration of Lelia Bentley, (Doc. 73 −3), is STRUCK IN PART and paragraphs 7, 8, and 9 are STRUCK. The declaration of Gary Bartlett, (Doc. 73 −6), is STRUCK IN PART and paragraphs 5, 6, 7, and 8 are STRUCK. The declaration of Dr. Paul Gronke, (Doc. 73 −5), is STRUCK IN PART and paragraphs 11, 12, and 13 are STRUCK. The court finds the remaining declarations and opinions should not be struck as requested, and that relief is denied. FURTHER that Legislative Defendants' motion for leave to take depositions, construed as a motion for prehearing discovery, (Doc. 49 ), is GRANTED IN PART and discovery shall be permitted in accordance with the discovery plans presented by the parties as described herein. (Taylor, Abby) (Entered: 07/27/2020)
TEXT ORDER − This court is aware of the fact that the parties have requested an expedited hearing and, because preparation for the election is proceeding, time is significant and an expedited ruling is important. As a result, the court believes some forecast of the likely issuance of an order may be of assistance to the parties. At

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07/29/2020 07/30/2020 07/30/2020
07/30/2020 07/31/2020 07/31/2020
07/31/2020 08/01/2020

present, the court does not anticipate completing an order this week. Instead, the court anticipates issuing its order the first part of next week, no later than Wednesday, August 5, 2020, and likely before then, perhaps as early as Monday, August 3. The court will advise the parties if any change to this schedule occurs but at present no change is anticipated. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/29/2020.] (Cable, Frances) (Entered: 07/29/2020)
117 Suggestion of Subsequently Decided Authority re 51 Response in Opposition to Motion,, by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE. (Attachments: # 1 Exhibit 1 Calvary Chapel Dayton Valley v. Sisolak)(MOSS, NICOLE) (Entered: 07/29/2020)
118 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. Response to Motion due by 8/20/2020 (PETERS, ALEXANDER) (Entered: 07/30/2020)
119 MEMORANDUM filed by Defendants STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND re 118 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in support filed by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND. (PETERS, ALEXANDER) (Entered: 07/30/2020)
120 MOTION to Amend complaint by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER. Response to Motion due by 8/20/2020 (Attachments: # 1 Exhibit 1. Proposed Third Amended Complaint, # 2 Exhibit 2. Redline of Proposed Third Amended Complaint, # 3 Text of Proposed Order)(KLEIN, HILARY) (Entered: 07/30/2020)
TEXT ORDER − The court requests that one of the parties file a copy of Exhibits 4 and 5 to Dr. Murray's testimony, (see Doc. 107 at 5), as soon as possible. The court requests that the parties file all testimonial exhibits presented to a witness who testified by video, as the copies of the transcripts did not include the exhibits as an attachment. While Dr. Murray's exhibits should be filed as soon as possible, the remaining exhibits may be filed on or before Tuesday, August 4, at 3:00 p.m. [Issued by JUDGE WILLIAM L. OSTEEN, JR., on 07/31/2020.] (Cable, Frances) (Entered: 07/31/2020)
121 NOTICE by LELIA BENTLEY, MARGARET B. CATES, JOHN P. CLARK, DEMOCRACY NORTH CAROLINA, REGINA WHITNEY EDWARDS, WALTER HUTCHINS, LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, ROBERT K. PRIDDY II, SUSAN SCHAFFER re 107 Transcript,,, Murray Video Testimony Exhibits (Attachments: # 1 Exhibit 1 to Murray Video Testimony, # 2 Exhibit 2 to Murray Video Testimony, # 3 Exhibit 3 to Murray Video Testimony, # 4 Exhibit 4 to Murray Video Testimony, # 5 Exhibit 5 to Murray Video Testimony, # 6 Exhibit 6 to Murray Video Testimony)(KLEIN, HILARY) (Entered: 07/31/2020)
122 Suggestion of Subsequently Decided Authority re 51 Response in Opposition to Motion,, by Intervenor Parties PHILIP E. BERGER, TIMOTHY K. MOORE. (Attachments: # 1 Exhibit 1 Little v. Reclaim Idaho)(MOSS, NICOLE) (Entered: 07/31/2020)
123 NOTICE by STELLA ANDERSON, KAREN BRINSON BELL, DAVID C. BLACK, J. ERIC BOYETTE, JEFF CARMON, III, DAMON CIRCOSTA, MANDY COHEN, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,

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08/04/2020

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, NORTH CAROLINA STATE BOARD OF ELECTIONS, KEN RAYMOND Notice of Filing of State Board of Elections' SL 2020−17, § 2.(b) Report (Attachments: # 1 Exhibit SL 2020−17 § 2.(b) Report)(PETERS, ALEXANDER) (Entered: 08/01/2020)
124 MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 08/04/2020, that Plaintiffs' Motion for Preliminary Injunction, (Doc. 9 ), is DENIED AS MOOT and that Plaintiffs' Amended Motion for Preliminary Injunction, (Doc. 31 ), is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to N.C. Gen. Stat. §§ 163−226.3(a)(4)(6), 163−231(b) (1), and as to Plaintiffs' procedural due process claim. The Motion is DENIED as to the remainder of Plaintiffs' requested relief. ORDERED that Defendants, including the North Carolina State Board of Elections, are PROHIBITED AND ENJOINED from the disallowance or rejection, or permitting the disallowance or rejection, of absentee ballots without due process as to those ballots with a material error that is subject to remediation. This injunction shall remain in force until such time as Defendants implement a law or rule which provides a voter with notice and an opportunity to be heard before an absentee ballot with a material error subject to remediation is disallowed or rejected. ORDERED that Defendants, their agents, employees, and state or local law enforcement are PROHIBITED AND ENJOINED from enforcing, and enforcement of, N.C. Gen. Stat. § 163−226.3(a)(4) to the extent those provisions of that statute prohibit Plaintiff Hutchins from receiving assistance in marking and completing his absentee ballot from an employee or staff member, as those terms are defined herein, of the nursing home in which he resides. This injunction shall remain in effect through the November 3, 2020 General Election or until The Davis Community allows outside visitors such that a MAT or his wife could visit and assist him in marking and completing his absentee ballot. ORDERED that Defendants, their agents, employees, and state or local law enforcement are PROHIBITED AND ENJOINED from enforcing, and enforcement of, N.C. Gen. Stat. § 163−226.3(a)(4)(6) and N.C. Gen. Stat. § 163−231(b)(1) as to Plaintiff Hutchins until such time as Defendants, including the North Carolina State Board of Elections, implement a law or rule that permits the disabled individual, Plaintiff Hutchins, to select his own person to assist him in marking, completing, and submitting his absentee ballot in accordance with Section 208 of the VRA.(Taylor, Abby) (Entered: 08/04/2020)

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, AND ROBERT K. PRIDDY II,

Plaintiffs,

vs.

Civil Action No. 20-cv-457

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

COMPLAINT

1
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Plaintiffs Democracy North Carolina, the League of Women Voters of North Carolina (together with Democracy North Carolina, the “Organizational Plaintiffs”), and Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, and Robert K. Priddy II, individuals (“Individual Plaintiffs,” together with the Organizational Plaintiffs, the “Plaintiffs”), bring this civil rights action under 42 U.S.C. § 1983, the First and Fourteenth Amendments, Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, for preliminary and permanent declaratory and injunctive relief against the Defendants 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; Ken Raymond, Jeff Carmon III, and David C. Black, all in their official capacities as Members of the State Board of Elections; Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections (together the “SBE Defendants”); Defendants the North Carolina Department of Transportation and J. Eric Boyette, in his official capacity as Secretary of the Department of Transportation (the “DOT Defendants”); and Defendants the North Carolina Department of Health and Human Services and Dr. Mandy Cohen, in her official capacity as Secretary of Health and Human Services (the “DHHS Defendants”). Plaintiffs allege as follows:
NATURE OF ACTION 1. The COVID-19 pandemic presents an unprecedented challenge to our nation. Caused by a novel coronavirus and transmitted by asymptomatic, otherwise-healthy individuals as well as the symptomatic, this disease threatens the health of millions of
2
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Americans, especially elderly people and those with pre-existing medical conditions. As infection and death rates continue to climb, the fallout from COVID-19 has severely strained health care systems, the economy, and all levels and branches of government.
2. This public health crisis has also endangered the machinery of our democracy by threatening massive disruptions in election administration, especially in a presidential election year that was on track for exceptionally high registration rates and turnout. Many states have already taken drastic measures to counteract the spread of COVID-19 and ensure that eligible voters can cast their ballots safely. North Carolina, however, has failed to act: it has not altered its statutory electoral scheme in order to allow for safe and accessible voting. As a result, millions of North Carolinians will likely either lose their right to vote or be forced to compromise their health in order to access the franchise.
3. At present, North Carolina’s election code imposes numerous restrictions— on voter registration, mail-in absentee ballots, in-person early voting, and Election Day administration—that, in light of the COVID-19 pandemic, unduly burden Plaintiffs’ right to vote in violation of the First and Fourteenth Amendments. With respect to voter registration, the pandemic has already caused registration rates to plummet in comparison with previous election years. North Carolina election code and registration practices can be altered to address the voter registration crisis with reasonable accommodations that make registering to vote easier and safer during this public health crisis. For example, North Carolina law requires voters to submit their registration applications at least 25 days prior to the election, or else, register in-person at an early voting site, therefore potentially exposing themselves or their families to infection via COVID-19. By preventing voters
3
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from registering in the three weeks leading up to the election, the 25-day registration requirement unconstitutionally burdens the right to vote. Voters cannot be required by their government to choose between registering to vote and preserving their health. Likewise, online voter registration opportunities could be easily expanded to allow voters to register to vote from the safety of their home.
4. Several aspects of North Carolina’s cumbersome absentee vote-by-mail regime are unconstitutional because they will require Plaintiffs to risk exposure to COVID19 and to violate public health social distancing requirements in order to successfully vote by mail. For example, North Carolina requires mail-in absentee voters to complete the ballot in the presence of two witnesses or a notary. To comply, the Individual Plaintiffs will need to expose themselves to individuals outside of their household, thereby risking their health. The two-witness requirement thus creates a severe and unjustified burden on Plaintiffs’ right to vote.
5. Finally, certain restrictions on the administration of in-person voting, both during the one-stop absentee voting period (known more commonly as “early voting” and so identified hereinafter) and on Election Day, will produce unsafe conditions for voters. For example, North Carolina requires each county to maintain uniform hours across all early voting sites, regardless of the capacity and demand at each site. This statutory requirement, recently added in June 2018, resulted in a significant reduction in early voting sites in the 2018 general election by inflating costs through the addition of unnecessary hours. This will likewise result in reduced sites and days for early voting in the upcoming 2020 general election because counties will have to close numerous early voting sites to
4
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comply with the law and still stay within their budgets. On Election Day, moreover, a majority of poll workers must reside in the precinct where they serve. This “home precinct” requirement will exacerbate shortages of poll workers and lead to precinct consolidation. Both the uniform-hours requirement for early voting sites and the home-precinct requirement for Election Day poll workers will produce unsafe conditions by reducing the number of sites in which voters can cast an in-person vote, which will, in turn, result in long lines and large crowds, as seen in the recent Wisconsin primary election. Further, it is not possible for a state like North Carolina— where historically, the vast majority of voters choose to cast their ballot in person—to shift entirely to vote-by-mail methods in mere months. North Carolina simply lacks the infrastructure necessary to conduct an election predominantly by mail without overwhelming both county election administration systems and the local U.S. Postal Service infrastructure. Immediate steps must be taken to ensure that in-person voting opportunities are preserved and conducted in accordance with public health guidance.
6. In short, with its high transmission and mortality rates, COVID-19 poses a risk to all voters, especially those who could develop severe complications like some of the Individual Plaintiffs. The pandemic has already decimated voter registration rates and third-party voter registration initiatives, and makes it impossible for voters to comply safely with certain requirements for mail-in absentee voting, including the two-witness or notary requirement. In addition, election officials anticipate severe shortages of poll workers, who justifiably fear contracting the disease, resulting in fewer polling sites. A number of states’ election officials, including in North Carolina, have already felt compelled to postpone
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primary and other elections by weeks or months in the face of this unprecedented public health emergency.
7. As of the filing of this complaint, Defendants have failed to implement any election-related measures to mitigate the impact of the COVID-19 crisis on North Carolina’s upcoming general election and safeguard the voting rights of countless eligible North Carolina voters.1 This failure to act, leaving the current electoral structure in place, imposes an undue burden and an unconstitutional condition on the right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution and a violation of procedural due process. In addition, the State’s failure to accommodate the needs of highrisk voters and others violates the ADA and the Rehabilitation Act.
8. Judicial intervention is warranted now, in advance of the 2020 general election, to ensure that the State has adequate time to implement the measures necessary to ensure that the right to vote may be exercised safely during this global pandemic. North Carolina law sets forth an inflexible calendar of pre-election administrative steps and milestones. For example, mail-in absentee ballots, their container-return envelopes with witness certifications and signature blocks, and instruction sheets must be available for use 60 days in advance of a statewide general election and 50 days in advance of all other elections, which in this case would be September 4, 2020. See N.C. Gen. Stat. §§ 163-
1 Plaintiffs are aware of at least two bills that have been filed purporting to address a small number of the issues identified in this litigation. Plaintiffs have no basis to believe that either bill will be enacted into law, certainly not in a timely-enough fashion, and even if they were, those bills are entirely inadequate to address the constitutional violations implicated in this lawsuit.
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227.10(a), 163-229(b), 163-229(c). This means that all the text and design for mail-in absentee ballots must be finalized well in advance of the 60th or 50th day before an election such that these materials can be timely printed, delivered, and distributed to voters. Moreover, in “emphasiz[ing] that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the Supreme Court has suggested that challenges to a state’s election administration should be brought as soon as possible. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).
9. Election administration plans for the June 23, 2020 Republican second primary in Congressional District2 have unfortunately been irreversibly set in motion. But it is not too late to safeguard the right to vote in November’s general election, when the pandemic is expected to resurge and once again threaten the functioning of our democracy.
JURISDICTION AND VENUE 10. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the U.S. Constitution and the laws of the United States and seeks equitable and other relief for the deprivation of constitutional and federal statutory rights under color of state law. 11. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920.
2 N.C. State Bd. of Elections, Emergency Exec. Order (Mar. 20, 2020), https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/Orders/Executive% 20Director%20Orders/Order_2020-03-20%20.pdf (rescheduling the Republican second primary in Congressional District 11 from May 12, 2020, to June 23, 2020).
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12. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
13. Venue is appropriate in the Middle District of North Carolina, under 28 U.S.C. § 1391(b)(1).
PARTIES Plaintiffs
14. Plaintiff Democracy North Carolina (“Democracy NC”) is a nonpartisan, nonprofit organization dedicated to increasing voter access and participation and reducing the corrupting role of money in politics through research, organizing, and advocacy. Democracy NC’s volunteers, who are registered North Carolina voters across every region of the state, form grassroots coalitions and are advocates in communities throughout the state, including Wake County, Edgecombe and Nash Counties (the “Twin Counties”), Alamance County, Mecklenburg County, Fayetteville, Wilmington, Winston-Salem, Asheville, New Bern, Salisbury and Greenville. Democracy NC works for pro-democracy reforms that strengthen the enforcement of election laws, protect voting rights, and improve government accountability and ethics. Democracy NC engages in substantial election protection efforts to ensure that voters are able to access the ballot, and spends substantial time and effort producing voter guides to educate voters about the candidates that will be on their ballots. Democracy NC advocates spend thousands of hours fighting for more early voting sites and times to ensure that all voters have easy access to the franchise. In previous elections, Democracy NC has also run rides-to-the-polls programs to ensure that voters who lacked transportation and could not or did not want to use mail-in absentee voting
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could nonetheless cast a ballot. Through original research, policy advocacy, grassroots organizing, civic engagement, and leadership training, Democracy NC seeks to achieve a fair and representative political system and advance a just and equitable North Carolina.
15. Plaintiff the League of Women Voters of North Carolina (“LWVNC”) is a nonpartisan community-based organization, formed in 1920, immediately after the enactment of the Nineteenth Amendment to the U.S. Constitution granting women's suffrage. The LWVNC is dedicated to encouraging its members and the people of North Carolina to exercise their right to vote as protected by the U.S. Constitution and the Voting Rights Act of 1965. The LWVNC’s mission is to promote political responsibility through informed and active participation in government and to act on selected governmental issues. The LWVNC impacts public policies, promotes citizen education, and makes democracy work by, among other things, removing unnecessary barriers to full participation in the electoral process. Currently the LWVNC has 17 local leagues and over 1,912 members, each of whom, on information and belief, is a registered voter in North Carolina. The LWVNC is affiliated with the League of Women Voters of the United States, which was also founded in 1920. The LWVNC began as an organization focused on training women voters, and has evolved into an organization concerned with educating, advocating for, and empowering all North Carolinians. With members in almost every county in the state, the LWVNC’s local leagues are engaged in numerous activities, including hosting public forums and open discussions on important issues to the community. Individual League members invest substantial time and effort in voter training and civic engagement activities, such as voter registration assistance and get-out-the-vote
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(GOTV) efforts leading up to elections, including during the early voting period. The LWVNC has developed a First Time Voter Engagement Program, which partners with local election boards and schools to encourage young voters to register to vote. The LWVNC also devotes substantial time and effort to ensuring that government at every level works as effectively and as fairly as possible in implementing voting regulations and procedures. To do so, the LWVNC advocates to make elections more transparent, to support a strong and diverse judiciary, and to urge for appropriate government oversight.
16. Plaintiff Donna Permar is a U.S. Citizen and a Durham County resident who is completely blind and lives with her spouse who is also completely blind. Ms. Permar is a registered voter who is eligible to vote in the November 2020 general election. Ms. Permar only feels confident voting in-person and thus relies on polling places being open and accessible by public transportation. Ms. Permar must utilize an ADA-compliant machine in order to vote, because she cannot fill out an absentee ballot with confidence or privacy.
17. Plaintiff John P. Clark is a U.S. citizen and a resident of the town of Apex in Wake County, North Carolina. He is 79 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. He has severe chronic obstructive pulmonary disease (“COPD”) and has lived with this disease, which severely limits his activities, for the last 12 years. Whenever he is active at all, walking around or working in the yard, he carries an oxygen tank. He can walk only two blocks, even with oxygen. He has also become more susceptible to exacerbated bouts of pneumonia, contracting it about four times in the last six years. The most recent episode was in January
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2020, which has caused a further deterioration of his respiratory condition. COPD makes him more vulnerable to severe complications or even death from COVID-19 and, therefore, it is too high a risk for him to vote in person. It is a necessity that he vote by absentee ballot in the November general election. To avoid any risk of contracting COVID-19, Mr. Clark has been quarantined along with his wife for approximately the last eight weeks. He lives with his wife, and the only people who have entered their house during the lockdown have been three service people whom he completely avoids. He and his wife never leave their property except for necessary medical appointments, short walks, and occasional drives including a weekly trip to the grocery store, during which Mr. Clark stays in the vehicle. He has voted in every presidential election since 1968, and votes regularly in state and local elections. He wants to vote in the November 2020 general election and has already applied for his mail-in absentee ballot. His wife could serve as one witness for his mail-in absentee ballot, but Mr. Clark could not safely obtain a second witness, given his COPD and the risk COVID-19 poses to Mr. Clark’s life. Each person he interacts with poses an additional, serious risk to his life. Given the two-witness-signature requirement, he does not know how he can safely cast a ballot by mail, and he cannot safely vote in person.
18. Margaret B. Cates is a U.S. citizen and a resident of the Town of Faison in Duplin County, North Carolina. She is 85 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. She lives alone and has had chronic fatigue syndrome for the last 27 years since 1993. This is a severely debilitating disease and has severely curtailed Ms. Cates’ ability to move about and be active. Today, she is in poor health, having suffered several falls recently and a urinary tract infection that
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she has been fighting for a year. As a result, she has been weak, using a walker in the house, and bedridden for twelve hours at night and for two in the afternoon. Ms. Cates has not left her house in three months, except to go to a doctor's appointment right before March and before the social distancing guidelines were put in place. She has voted in every presidential election since 1956, and also votes in many state and local elections. She wants to vote in the November 2020 general election, and she has never voted by mail. Under the current North Carolina election procedures, there is no way for Ms. Cates to request an absentee ballot online. If this option were available, with some assistance, she could and would request a ballot that way. She would also be able to request a ballot by phone call. Her nearest family member is her son, who lives a two-hour drive away in Southern Pines, North Carolina. Without an online or phone option to request an absentee ballot, Ms. Cates cannot request an absentee ballot on her own and would depend on others to mail or otherwise provide it to her. As to the two-witness requirement, Ms. Cates’ assistant—who comes to the house to help with daily tasks and is the only person to enter Ms. Cates’ home—could serve as one witness for her absentee ballot, but Ms. Cates cannot take the additional risk of securing a second witness given her poor health and debilitated state. Each additional person she interacts with poses a risk to her life. Voting in person is not an option for her, as it would pose too much of a risk to her health. Given the current rules for voting by mail, she does not know how she will safely cast a ballot by mail in the upcoming election.
19. Lelia Bentley is a U.S. Citizen and a 62-year-old registered voter in Wilkesboro who lives on her own. She has been diagnosed with hypertension, which she
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controls through diet, exercise, and meditation. About once a year, Ms. Bentley develops a cold, which often progresses to include symptoms like sinus and chest congestion, a hacking cough, and shortness of breath. As a result of her medical history, she has been self-isolating at her home since March 10. Consistent with the Governor's stay-at-home order, she does not leave her home unless absolutely necessary. Since March 15, if she has needed groceries, she has ordered them online and had them delivered. Ms. Bentley does not know if she can satisfy the two-witness requirement in order to request and cast an absentee mail-in ballot. She has observed some of her neighbors breaking social distancing guidelines, including hosting social gatherings in their homes. Other neighbors are themselves self-isolating in order to protect elderly family members and she worries that, even if they would agree to be her witnesses, she could accidentally expose them to the virus, in spite of the precautions she has been taking. She does not know if her remaining neighbors have been taking appropriate precautions to prevent contracting the novel coronavirus, and therefore does not feel safe asking them to be witnesses. Even if she can obtain two witnesses, she does not know if she will risk contact with them in order to vote because she fears that it will lead her to contract COVID-19. Ms. Bentley will not vote in person because that would be too much of a risk to her health. She does not know what she will do if she cannot vote by mail.
20. Regina Whitney Edwards is a U.S. citizen and resident of Durham County. She is 30 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. She is at high risk of developing severe illness from COVID-19 because she has a serious pre-existing medical condition, type 1 diabetes. She
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has had type 1 diabetes for 21 years. To protect her health from the impact of COVID-19, she has remained at home since mid-March and has not seen another person except her partner, whom she lives with. She is uncomfortable leaving her home or being in proximity to people other than her partner. She has voted in multiple elections in North Carolina. But for the threat of COVID-19, she would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, she is not willing to vote in person during the November 2020 general election, and instead would like to vote by mail-in absentee ballot to protect her health. Ms. Edwards cannot safely comply with North Carolina’s two-witness requirement. Her partner is available to serve as the first witness, but she is not willing to jeopardize her physical well-being by asking another person to serve as the second witness. Although she strongly wishes to vote in the November 2020 general election, she will not do so if the two-witness requirement remains in effect.
21. Robert K. Priddy II is a U.S. citizen and a resident of Brunswick County. He is a 70-year-old registered North Carolina voter who is eligible to vote in the November 2020 general election. He is at high risk of developing severe illness from the novel coronavirus because he has several serious pre-existing health conditions, and because of his age. In 2010, he received a kidney transplant. To ensure that his body does not reject the transplant, he takes medication that suppresses his immune system. The medication also causes borderline diabetic issues, so he receives treatment for diabetes. To protect his health, Mr. Priddy’s doctor has advised him to stay home and avoid contact with people outside his household. He has remained at home since mid-March. He relies on his wife to
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shop for groceries and run other errands. The only time he has gone outside since midMarch was to pick up prescriptions from a drive-thru pharmacy, during which he remained in his vehicle without interacting directly with the pharmacist. He is uncomfortable leaving his home or being in close proximity to people other than his wife. He has voted in numerous elections in North Carolina. But for the threat of COVID-19, he would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, he is not willing to vote in person in the November 2020 general election. He would like to vote by mail-in absentee ballot, but he cannot safely comply with North Carolina’s two-witness requirement. His wife is available to serve as the first witness, but he would have to jeopardize his physical well-being to ask another person to serve as the second witness. Although he strongly wishes to vote in the November 2020 general election, his health will be at risk if the two-witness requirement remains in effect, and he is not sure he will be able to vote. Defendants
22. Defendant North Carolina State Board of Elections is the agency responsible for the administration of the election laws of the State of North Carolina.
23. Defendant Damon Circosta is the Chair of the North Carolina State Board of Elections. Mr. Circosta is sued in his official capacity.
24. Stella Anderson is the Secretary of the North Carolina State Board of Elections. Ms. Anderson is sued in her official capacity.
25. Ken Raymond is a Member of the North Carolina State Board of Elections. Mr. Raymond is sued in his official capacity.
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26. Jeff Carmon III is a Member of the North Carolina State Board of Elections.

Mr. Carmon is sued in his official capacity.

27. David C. Black is a Member of the North Carolina State Board of Elections.

Mr. Black is sued in his official capacity.

28. Defendant Karen Brinson Bell is the Executive Director of the North

Carolina State Board of Elections. Ms. Brinson is sued in her official capacity.

29. The North Carolina Department of Transportation is the agency that

implements the online voter registration system in the State of North Carolina.

30. J. Eric Boyette is the Secretary of the North Carolina Department of

Transportation. Mr. Boyette is sued in his official capacity.

31. The North Carolina Department of Health and Human Services is the agency

that administers online public benefits renewal in the State of North Carolina.

32. Dr. Mandy Cohen is the Secretary of the North Carolina Department of

Health and Human Services. Dr. Cohen is sued in her official capacity.

STATEMENT OF FACTS

I.

The COVID-19 Pandemic

A. COVID-19

33. In December 2019, health officials in mainland China detected a novel

coronavirus, SARS-CoV-2, which causes a disease known as COVID-19. On January 30,

2020, the World Health Organization (“WHO”) declared COVID-19 to be a Public Health

Emergency of International Concern. On March 11, 2020, the WHO declared that it had

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become a pandemic. COVID-19 has now spread throughout the world, including to every state in the United States and to every county in North Carolina.
34. The novel coronavirus that causes COVID-19 continues to spread at an unprecedented pace around the world and within the United States. As of May 21, 2020, there were 1,551,095 confirmed cases in the United States, and there have been 93,061 deaths nationwide.3 As of May 22, 2020, the North Carolina Department of Health and Human Services had confirmed 21,618 positive cases of coronavirus and 728 deaths in North Carolina.4
35. COVID-19 appears to be much more contagious than other respiratory illnesses, such as influenza, SARS, or MERS, in significant part because of its capacity for asymptomatic transmission, and substantially more lethal than influenza.
36. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are at higher risk of severe complications and death from COVID-19 if they are 65 years old or older or have underlying health conditions and diseases, including chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity (body mass index (“BMI”) of 40 or higher), diabetes, chronic kidney disease undergoing dialysis, liver disease, and other health conditions that suppress immune systems like
3 Coronavirus Disease 2019 (COVID-19), Cases in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated May 21, 2020). 4 COVID-19 Response, COVID-19 North Carolina Dashboard, NCDHHS, https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count (last updated May 22, 2020, at 10:51am).
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HIV/AIDS.5 The CDC’s website, relying upon research from the National Center for Immunization and Respiratory Diseases (“NCIRD”), Division of Viral Diseases, notes that immunocompromised individuals are at severe risk from COVID-19: “Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications.”6
37. Severe COVID-19 cases can cause a wide variety of secondary infections and pathologies, including but not limited to: pneumonia, acute respiratory distress syndrome, kidney failure, liver failure, strokes, heart attacks, cardiac inflammation, and gastrointestinal infections, among others.7 Furthermore, everyone is at some risk of severe complications and death from COVID-19, as health officials have recently associated COVID-19 with pulmonary embolism and stroke in younger patients without known risk
5 Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-athigher-risk.html (last updated May 14, 2020). 6 Id. 7 Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious rampage through the body, from brain to toes, SCIENCE (Apr. 17, 2020), https://www.sciencemag.org/news/2020/04/how-does-coronavirus-kill-clinicians-traceferocious-rampage-through-body-brain-toes.
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factors8 and subsequent inflammatory disease in young children.9 In critical cases, some
patients need to be intubated and put on a ventilator. Many critical care patients ultimately
die. There is also evidence that individuals of color are dying of COVID-19 at a higher rate
than other demographic groups.10
38. The CDC has warned that asymptomatic COVID-19-positive individuals can
transmit the disease to others.11 Studies have confirmed this.12 As a result, individuals can
spread the disease for a week or more before realizing they are infected, facilitating rapid
contagion. Currently, there are no therapeutic treatments or vaccinations that have been
shown to significantly alter the trajectory of the COVID-19 outbreak. Leading
epidemiology experts anticipate that the pandemic will continue into fall and winter of
2020, and potentially well into 2021.
8 Robert Glatter, M.D., Why is COVID-19 Coronavirus Causing Strokes in Young And Middle-Aged People?, FORBES (Apr. 27, 2020), https://www.forbes.com/sites/robertglatter/2020/04/27/why-is-covid-19-coronaviruscausing-strokes-in-young-and-middle-aged-people/#598e78fe34df. 9 Pam Belluck, New Inflammatory Condition in Children Probably Linked to Coronavirus, Study Finds, N. Y. TIMES (May 13, 2020), https://www.nytimes.com/2020/05/13/health/coronavirus-children-kawasaki-pmis.html. 10 Shelby Lin Erdman, Black Communities Account for Disproportionate Number of Covid-19 Deaths in the US, study finds, CNN (May 6, 2020), https://www.cnn.com/2020/05/05/health/coronavirus-african-americans-study/index.html. 11 Coronavirus 2019 (COVID-19), Prevent Getting Sick: How COVID-19 Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated Apr. 13, 2020). 12 Mary Van Beusekom, Studies profile lung changes in asymptomatic COVID-19, viral loads in patient samples, CTR. FOR INFECTIONS DISEASE RESEARCH & POL’Y, UNIV. OF MINN. (Feb. 25, 2020), http://www.cidrap.umn.edu/news-perspective/2020/02/studiesprofile-lung-changes-asymptomatic-covid-19-viral-loads-patient.
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B. North Carolina’s Response to COVID-19 39. In North Carolina, Governor Cooper declared a State of Emergency on March 10, 2020, which remains in effect as of the date of this filing. Within a week thereafter, the Governor imposed social distancing guidelines for individuals and businesses, closed public schools, and prohibited mass gatherings. 40. Governor Cooper has announced a three-phase plan to slowly ease restrictions in North Carolina that will depend on whether North Carolina has successfully met key metrics regarding infection in the state.13 On May 5, 2020, Governor Cooper issued an executive order modifying North Carolina’s stay at home order and transitioning the state to “Phase 1” of slowly easing certain COVID-19 restrictions.14 This order advised North Carolinians to maintain six-feet social distancing from non-family or household members and encouraged high risk individuals to stay home and travel only for “absolutely essential purposes.”15 On May 20, 2020, the Governor issued an order moving North Carolina into “Phase 2” and superseding the Phase 1 order.16 The Phase 2 Order notes that “the risk of contracting and transmitting COVID-19 is higher in settings that are indoors,
13 Press Release, North Carolina Office of the Governor, Governor Extends Stay At Home Order Through May 8, Plans Three Phase Lifting of Restrictions Based on Virus Trends (Apr. 23, 2020), https://governor.nc.gov/news/governor-extends-stay-home-orderthrough-may-8-plans-three-phase-lifting-restrictions-based. 14 Governor Roy Cooper, Exec. Order No. 138 (May 5, 2020), https://files.nc.gov/governor/documents/files/EO138-Phase-1.pdf. 15 Id. 16 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf.
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where air does not circulate freely and where people are less likely to maintain social distancing by staying six (6) feet apart,” and “very strongly encourage[s]” individuals at high risk of severe illness, including those 65 years or older and with underlying medical conditions, to stay home and travel only for “absolutely essential purposes.”17 It maintains the prior guidance that individuals maintain at least six feet of social distancing from other individuals, and requires businesses to limit occupancy and take other measures promoting social distancing. It also encourages individuals, including restaurant workers and personal care patrons, to wear face coverings. Mass gatherings of more than 10 people indoors and 25 people outdoors remain prohibited.18
41. The Governor has also issued an executive order allowing non-profit corporations incorporated under the laws of the State of North Carolina to vote on matters by electronic balloting to “prevent members and directors from having to gather in a place, and thereby to promote social distancing and the mitigation of the spread of COVID-19.”19
42. The DHHS Defendants similarly recommend that individuals “put distance between yourself and other people” and advise, “[t]he very best evidence on reducing the spread is to maintain social distance and stay at home.”20
17 Id. 18 Id. 19 Governor Roy Cooper, Exec. Order. No. 136 (Apr. 24, 2020), https://files.nc.gov/governor/documents/files/EO136-Nonprofit-Corp.pdf. 20 COVID-19 Response, Individuals and Families, NCDHHS, https://www.ncdhhs.gov/divisions/public-health/covid19/individuals-and-families (last accessed May 19, 2020).
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43. These measures are far from temporary and similar measures will likely be required for the remainder of 2020. Governor Cooper’s current Phase 2 executive order notes that “it may be necessary to reinstate certain restrictions eased by this Executive Order,”21 and, in any event, even the final “Phase 3” guidelines encourage social distancing and minimizing exposure, and any spike in infections may require tightening restrictions again.22
44. Epidemiologists and infectious disease specialists have already concluded that there will very likely be a COVID-19 resurgence in the United States this fall. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said a second wave of infections in the United States is “inevitable.”23 South Korea, Germany, and China are already seeing a resurgence of COVID-19 after loosening restrictions in response to declining new COVID-19 cases. Pointing to the spread of COVID-19 cases in southern hemisphere countries as those regions enter their winter seasons, Dr. Fauci remarked, “And if, in fact, they have a substantial outbreak, it will be
21 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf. 22 Id. 23 Miriam Berger et al., Drug trial shows modest benefits in treating coronavirus, Fauci says, WASH. POST (Apr. 20, 2020), https://www.washingtonpost.com/world/2020/04/29/coronavirus-latest-news/; see also Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, WHITE HOUSE (Mar. 25, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-briefing-11/.
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inevitable that we need to be prepared that we’ll get a cycle around the second time.”24 He
concluded, “[W]e really need to be prepared for another cycle.”25 Furthermore, experts
from the Harvard T.H. Chan School of Public Health’s Center for Communicable Disease
Dynamics warned that, to avoid exceeding hospital critical care capacities, prolonged or
intermittent social distancing may be necessary into 2022.26
C. Inadequacies in North Carolina’s Administration of the Upcoming 2020 General Election in Light of the COVID-19 Pandemic
45. The general election for all federal offices, including the presidential
election, will be held on November 3, 2020. COVID-19 will have an unprecedented impact
on this upcoming election. Even before the COVID-19 pandemic, the Brookings Institution
predicted that “turnout in 2020 could break all records and test our election machinery as
it has never been tested before.”27 Other experts also anticipate record-breaking turnout in
the 2020 presidential election.28
24 Id. 25 Id. 26 Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period, SCIENCE (Apr. 14, 2020), https://science.sciencemag.org/content/early/2020/04/24/science.abb5793. 27 William A. Galston, What does high voter turnout tell us about the 2020 elections?, BROOKINGS INST. (Nov. 20, 2019), https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-high-voter-turnout-tell-usabout-the-2020-elections/. 28 See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. NEWS & WORLD REPORT (Sept. 20, 2019), https://www.usnews.com/news/elections/articles/2019-09-20/expertspredict-huge-turnout-in-2020; Nate Cohn, Huge Turnout Is Expected in 2020. So Which Party Would Benefit?, N.Y. TIMES (July 15, 2019), https://www.nytimes.com/2019/07/15/upshot/2020-election-turnout-analysis.html; Ronald Brownstein, Brace for a Voter-Turnout Tsunami, THE ATLANTIC (June 13, 2019),
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46. North Carolina’s election laws and procedures are not designed to facilitate safe, fair, and free elections during such a public health crisis, and the legislature has failed to take action to remedy this situation. Given the rapidly spreading infection, North Carolina’s current election laws will force voters to choose between exposing themselves to severe risks to their health and exercising their constitutionally-protected right to vote.
47. The inadequacies of North Carolina’s election laws and procedures to facilitate safe, free, and fair voting during a pandemic have not gone unnoticed by state and county election officials. On March 26, 2020, Defendant Karen Brinson Bell, Executive Director of the North Carolina State Board of Elections, wrote to Governor Cooper and the leadership in North Carolina’s General Assembly requesting statutory changes to address the impact of the COVID-19 pandemic on North Carolina’s upcoming elections.29 Among other recommendations, Defendant Bell requested (i) expanding options for voters to submit mail-in absentee ballot requests beyond the current mail-only option to enable requests by fax, email, and an online portal; (ii) establishing a fund to pay for postage for returned absentee ballots; (iii) reducing or eliminating the requirement that two witnesses sign an absentee mail container envelope in order for the ballot to be counted; (iv) lifting the requirement that a majority of Election Day poll workers reside in the precinct in which they work; and (v) lifting the uniformity requirement for early voting sites, days and hours.
https://www.theatlantic.com/politics/archive/2019/06/2020-election-voter-turnout-couldbe-record-breaking/591607/. 29 Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1).
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In a follow-up letter sent April 22, 2020, Defendant Bell emphasized that changes were required immediately during the April 28 legislative session of the General Assembly in order to be effective for North Carolina’s 2020 elections, including the 2020 general election.30
48. On April 27, 2020, dozens of county board of elections officials from eleven counties in North Carolina’s 11th Congressional District similarly issued an “urgent request” of North Carolina’s legislators to protect upcoming elections.31 They warned that regular poll workers were “reluctant to serve” during the pandemic given that a large percentage of them are elderly and at higher risk of severe complications and death from COVID-19. These county officials requested that the legislators eliminate the requirement that a majority of poll workers reside in the precinct in which they serve and instead permit officials to recruit poll workers from anywhere in the entire county.
D. Voter Registration 49. Those eligible to vote in North Carolina can register in person, by mail, or, under some circumstances, online with the Department of Motor Vehicles (“DMV”), a division of Defendant the North Carolina Department of Transportation.32 To register by mail, eligible voters can download a voter registration form from the State Board of
30 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2). 31 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 29, 2020) (Exhibit 3). 32 See Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voters/Registering-to-Vote (last accessed May 20, 2020).
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Elections website and then print, complete, and sign the form. Voters cannot submit this form electronically and they must mail in the original form with a wet-ink signature to the local county board of elections. See N.C. Gen. Stat. § 163-82.6(c). Voters must also include their drivers license number, non-driver identification card, or last four digits of their Social Security number. See N.C. Gen. Stat. § 163-230.2.
50. Alternatively, eligible voters who are existing DMV customers with a North Carolina drivers license or DMV-issued ID may register to vote online. See N.C. Gen. Stat. § 163-82.19. Until recently, this option required users to complete a DMV transaction, such as a license renewal or duplicate, at the same time.33 For this registration method, voter registration applications must be submitted at least 25 days before the election in which the voter wishes to cast a ballot.34
51. Eligible voters may also register to vote through certain state agencies such as the Division of Social Services, Division of Public Health/WIC, and Division of Services for the Blind—all divisions of Defendant N.C. Department of Health and Human Services—among others. See N.C. Gen. Stat. §§ 163-82.20 – 82.23.35 Voters may submit forms to state agencies in lieu of mailing the application but must do so at least 25 days
33 See Press Release, N.C. State Bd. of Elections, State Board, DMV Partner to Expand Online Voter Registration Service (Mar. 30, 2020), https://www.ncsbe.gov/PressReleases?udt_2226_param_detail=2195. 34 See also Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voters/Registering-to-Vote (last visited May 19, 2020) (“Voter registration applications submitted [through the DMV] fewer than 25 days before an election will not be processed until after the election.”) 35 See NVRA Agency Forms, N.C. State Bd. of Elections, https://www.ncsbe.gov/VoterRegistration/NVRA (last accessed May 19, 2020).
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before the election in which they wish to vote, see N.C. Gen. Stat. § 163-82.20(g), (h), and may not do so online, even though those agencies, upon information and belief, possess “wet-ink” signatures for those customers.
52. Finally, voters may register in person at an early voting site using same-day registration with valid identification.36 This option is available up until the last Saturday before the election. See N.C. Gen. Stat. § 163-227.2(b)
53. The COVID-19 pandemic and resulting stay-at-home orders in North Carolina have significantly hindered third-party voter registration efforts for the 2020 general election. For example, Plaintiff LWVNC has had to cancel and otherwise reduce its in-person voter registration initiatives, which typically comprise a significant portion of its voter registration efforts. Plaintiff Democracy NC has had to cancel its in-person voter education forums where voter registration forms are usually provided. Furthermore, voters’ ability to access the resources needed to register to vote—whether they be printers, postage, and access to a post-office box, state agency, county board of election or the DMV—have also been significantly hindered by the COVID-19 pandemic. As a result, voter registration is significantly lagging this year as compared to previous general election years. While January 2020 showed an approximately 162 percent increase in registrations compared to
36 One-Stop Early Voting; Same-Day Registration, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voting-Options/One-Stop-Early-Voting (last accessed May 20, 2020).
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January 2016 (indicating increased intent to vote in this election cycle), April 2020 showed an approximately 50 percent decrease in voter registrations compared to April 2016.37
E. Absentee Vote-By-Mail 54. There will be a dramatic increase in the number and proportion of mail-in absentee ballots cast in the upcoming 2020 elections. While North Carolina permits all registered voters to cast an absentee ballot if they choose, see N.C. Gen. Stat. § 163-226(a), recently-enacted restrictions on absentee voting as well as other pre-existing provisions in the North Carolina election code impose undue burdens on voters wishing to cast mail-in absentee ballots in light of the current pandemic, and will force voters to choose whether to exercise their right to vote or protect their health. 55. Wisconsin’s recent election, which was held after its governor declared state of emergency in response to COVID-19, shows that there will likely be an increased use of mail-in ballots in North Carolina. Like North Carolina, Wisconsin does not require an excuse to vote by mail. In its April 7, 2020 spring election, nearly 1.3 million registered Wisconsin voters requested a mail-in ballot,38 the most in the state’s history. Of the 1.6 million voters who cast ballots in the spring election,39 more than 70 percent, that is 1.1
37See N.C. State Bd. of Elections, NVRA Data (2008 to present), https://s3.amazonaws.com/dl.ncsbe.gov/NVRA/nvra_stats_all.txt. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data-Info/ElectionResults-Data and navigating to “FTP Site”  “NVRA”  “NVRA_stats_all.txt”. 38 Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary, WIS. ELECTIONS COMM’N (Apr. 16, 2020), https://elections.wi.gov/node/6856. 39 Unofficial Spring Election Turnout - 34.3 % - 4/14/2020, WIS. ELECTIONS COMM’N, https://elections.wi.gov/blog (last accessed May 21, 2020).
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million, voted by mail-in absentee ballot.40 This was a dramatic increase from the percentage of mail-in absentee ballots cast in the 2016 presidential primary election, in which mail-in absentee ballots made up just 11.8 percent of total ballots cast.41
56. Defendant North Carolina State Board of Elections anticipates a similar dramatic increase in mail-in absentee voting in 2020 to 30 to 40 percent,42 and thus needs to prepare for such an increase. As it currently stands, North Carolina’s election code imposes severe burdens to voters who need to cast absentee mail-in ballots, in light of the current pandemic, and to the expected influx of voters wishing to vote by mail for the first time.
1. Senate Bill 683 57. North Carolina law has permitted all eligible citizens to vote by mail in all federal and state elections since 2001. See N.C. Gen. Stat. § 163-226(a). Voters must submit a completed State Absentee Ballot Request Form to their county board of elections in order to receive an absentee ballot. N.C. Gen. Stat. § 163-230.2(a). 58. In November 2019 North Carolina made it significantly more cumbersome for its voters to cast absentee ballots by mail by enacting Senate Bill 683. See An Act to Amend the Laws Governing Mail-In Absentee Ballots (“SB 683”), S.L. 2019-239, § 1
40 Updated municipal absentee ballot data, WIS. ELECTIONS COMM’N, https://elections.wi.gov/blog (last updated 4/13/20 9:35am). 41 Absentee Ballot Requests for April 7 Exceed 1 million - COVID-19, WIS. ELECTIONS COMM’N (Apr. 1, 2020), https://elections.wi.gov/node/6802. 42 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2).
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(Nov. 6, 2019).43 Among other provisions, SB 683 imposes restrictions on who can assist voters with completing mail-in absentee ballot request forms. See S.B. 683 § 1.3(a) (amending N.C. Gen. Stat. § 163-230.2(e), (e1)). Requests are invalid if “completed partially or in whole, or signed by anyone other than the voter, or the voter’s near relative or verifiable legal guardian.” N.C. Gen. Stat. § 163-230.2 (e)(2). Members of multi-partisan teams (“MATs”) trained and authorized by county boards of elections may assist in completion of the request, id., but in certain North Carolina counties, the availability of MATs has been inadequate. Voters requiring assistance to complete the written request form due to blindness, disability, or inability to read or write may request another person if “there is not a near relative or legal guardian available to assist that voter.” N.C. Gen. Stat. § 163-230.2(e1).
59. There are also restrictions on who may help return a completed absentee ballot request. Under N.C. Gen. Stat. § 163-230.2(c), the completed request form may only be delivered to the county board of elections by the voter, the voter’s near relative or verifiable legal guardian, or a MAT team member. Unlike for completing an absentee ballot request form, there is no exception in the statute for a voter who needs assistance with returning the request form by reason of their blindness, disability, or inability to read or write. See N.C. Gen. Stat. § 163-230.2 (e)(4).
60. Strangely, North Carolina law imposes greater restrictions on completing and submitting absentee ballot applications than exist under North Carolina law for returned,
43 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2019239.pdf.
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completed absentee ballots, for which a voter may obtain assistance from a third party who is not a near relative or legal guardian. See N.C. Gen. Stat. §§ 163-226.3(a), 163-229(b)(4), 163-231(a). By doing so, SB 683 has effectively banned organizations like LWVNC from assisting voters with requesting absentee ballots. This is especially damaging where, as here, the State Board expects a dramatic increase in voting-by-mail, indicating that many individuals will be seeking to vote by mail for the first time. Without assistance by organizations like LWVNC, which was available up until SB 683’s passage in late 2019, many of these voters will lack needed assistance to navigating the ballot request process during a time when that assistance is crucial to ensuring individuals can vote safely.
2. Two-Witness Requirement 61. North Carolina’s two-witness or notary requirement for mail-in absentee voting will also force voters to decide whether to break quarantine or violate socialdistancing directives, and thereby risk their own health, in order to successfully cast a ballot this year. Among other requirements, North Carolina election law requires that an individual voting an absentee ballot do so “[i]n the presence of two persons who are at least 18 years of age.” N.C. Gen. Stat. § 163-231(a).44 The only alternative is to obtain the signature of a notary public. Id. However, during the current pandemic a notary public is not a viable option for many voters because many businesses are closed and the recent
44 Other restrictions include prohibiting any candidate for nomination or election from serving as a witness unless the voter is the candidate’s near relative, prohibiting owners, managers, directors, employees of any hospital, clinic, nursing home, or rest home from witnessing for a voter who is a patient or resident, and certain office-holders. See N.C. Gen. Stat. §§ 163-226.3(a)(4) and 163-237(b)(1).
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exclusion of absentee ballots from the recent COVID response bill allowing for electronic
notaries. See An Act to Provide Aid to North Carolinians in Response to the Coronavirus
Disease (COVID-19) Crisis, S.L. 2020-3 § 4.1(c) (May 4, 2020).45 Accordingly, even when
they do have access to a notary public, individuals again would have to breach social-
distancing measures and leave their home to have their ballot notarized.
62. North Carolina is one of just twelve states that requires a witness or notary
to observe the voter casting the absentee ballot and then sign the ballot’s certificate
envelope and one of just three states that requires two witnesses.46 In a time when social
distancing is a crucial measure to protect public health, the two-witness requirement
unconstitutionally forces individuals to choose between voting through an absentee mail-
in ballot that will count or protecting their health, and constitutes an insurmountable hurdle
for many eligible North Carolina voters seeking to protect their health and the health of
45 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL20203.pdf (at PDF p. 31) (“Nothing in this section shall apply to any notarization under Article 20 of Chapter 163 of the General Statutes [regarding absentee ballots].”). 46 See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. Ann. § 18:1306(2)(a); Minn. Stat. §§ 203B.07, 203B.121; Minn. R. 8210.2450; Miss. Code Ann. §§ 23-15-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C. Gen. Stat. § 163-231; Okla. Stat. tit. 26, § 14-108; 17 R.I. Gen. Laws § 1720-23; S.C. Code Ann. §§ 7-15-220, 7-15-230; Va. Code Ann. §§ 24.2-706, 24.2707; Wis. Stat. § 6.87(4)(b)1; see also Jay Chaudhury, NC absentee ballots require 2 witnesses. Is that unique?, POLITIFACT (Apr. 23, 2020), https://www.politifact.com/factchecks/2020/apr/23/jay-chaudhuri/nc-absentee-ballotsrequire-2-witnesses-unique/; Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NAT’L CONF. OF STATE LEGIS. (Apr. 14, 2020), https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx (select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”).
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their family or co-habitants. Those eligible North Carolina voters under self-quarantine, particularly those at risk of severe complications and death from COVID-19, who live alone or who do not have two other adults in their household, will be unable to safely satisfy the state’s double-witness signature requirement and cast a mail-in absentee ballot. This is no small number: According to the U.S. Census, there are 1,113,548 single-member households in North Carolina.47 Of those single-member households, 416,121, or 37 percent, are occupied by someone 65 or older.48
63. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley are all eligible North Carolina voters who need to vote by mail-in absentee ballot to safeguard their lives and the health and well-being of their family members or co-habitants. Mr. Clark, who is 79 years old, has severe COPD that puts him at serious risk of severe complications and even death from COVID-19. After several bouts of pneumonia in recent years, Mr. Clark has been quarantining himself at home. Ms. Cates, who is 85 years old, lives with chronic fatigue syndrome, a debilitating disease that makes it hard for her to engage in normal daily activities and has suffered a urinary tract infection and fallen several times over the last year. Since the social distancing guidelines were put in place, Ms. Cates has not left her home, and only allows an assistant to visit and help with household chores while carefully maintaining distance from Ms. Cates. Ms. Edwards has a pre-existing medical condition,
47 Table S2501, Occupancy Characteristics, American Community Survey, U.S. CENSUS BUREAU, https://data.census.gov/cedsci/table?q=S2501&g=0400000US37&tid=ACSST5Y2018.S2 501. 48 Id.
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type 1 diabetes, which puts her at high risk for developing severe illness from COVID-19. In light of the risks to her health, she is uncomfortable leaving her home or being in close proximity to people other than her partner. Mr. Priddy’s doctor has informed him that he is at high risk of developing severe illness from the novel coronavirus due to his age and serious pre-existing health conditions, including his use of medication that suppresses his immune system related to a kidney transplant in 2010, and treatment for diabetes. To protect his health, Mr. Priddy’s doctor has advised him to stay at home and avoid contact with people other than his wife. Ms. Bentley has been diagnosed with hypertension and has a history of developing cold symptoms attacking her lungs, also putting her at risk of severe illness from COVID-19. As a result, she has been self-isolating in her home since March 10 to avoid contracting novel coronavirus. Ms. Bentley lives alone and does not have any family nearby and does not feel safe asking her neighbors to serve as witnesses because she has observed some breaking the Governor’s stay-at-home order. Other neighbors are themselves self-isolating to protect vulnerable family members, and Ms. Bentley does not know what precautions her remaining neighbors are taking. Id. Accordingly, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley have no way to safely comply with the twowitness requirement and are therefore effectively disenfranchised by N.C. Gen. Stat. § 163231(a). Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley will be forced to choose between exercising their fundamental right to vote or running the risk of contracting and spreading COVID-19 and further worsening the pandemic in North Carolina.
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3. Other North Carolina Election Laws and Procedures that Must Be Adjusted to Protect the Right to Vote By Mail During This Public Health Crisis
64. In addition to the restrictions imposed by SB 683 and the two-witness requirement, North Carolina’s election laws lack crucial mechanisms for guaranteeing that eligible individuals in North Carolina will be able to cast a mail-in absentee ballot that is counted. As pointed out by Defendant Director Bell, North Carolina has no mechanism for requesting absentee ballots by phone, email, or online. Accordingly, voters wishing to request an absentee mail-in ballot must either have the necessary equipment at home (printer, envelope, postage, and access to mail pick-up), violate social-distancing directives and guidelines and put themselves at severe risk by seeking these items outside the home, or rely on others to provide them with a form. By contrast, at least twelve states allowed voters to request an absentee ballot online, and an additional three allowed voters to submit a scanned application via email.49
65. Furthermore, North Carolina voters need a fail-safe for absentee voting to prevent the unlawful denial of the right to vote given North Carolina’s lack of experience with the anticipated volume of mail-in absentee ballot requests for the November general election. This is especially critical given the recent evidence out of Wisconsin and Ohio that state and local election officials, as well as the U.S. Postal Service, are failing to deliver
49 VOPP: Table 6: States With Web-Based and Online Absentee Ballot Applications, NAT’L CONF. OF STATE LEGIS. (May 4, 2020), https://www.ncsl.org/research/electionsand-campaigns/vopp-table-6-states-with-web-based-and-online-absentee-ballotapplications.aspx.
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thousands of absentee ballots to voters in the mail.50 Those voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day—i.e., within a certain number of days of the election of their request and/or within a certain number of days of the request—will be disenfranchised unless they are permitted to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.51 FWABs are already offered to overseas civilians, who can download them and print them for use, but domestic civilian absentee voters are denied the same option, even when their regular mail-in absentee ballot does not arrive in time or at all.
66. Additionally, voters without access to postage and mail pick-up must also violate social-distancing directives and guidelines to submit mail-in absentee ballots. To successfully vote by mail, voters must mail their ballots such that they are postmarked on or before Election Day and delivered no later than 5:00 pm on Election Day, or return their voted ballots to the county board of elections (not a polling location) no later than 5:00 pm on Election Day. However, there is currently no provision in North Carolina law for contactless drop boxes for absentee ballots, which would allow voters to avoid severe delays with the U.S. Postal Service, reduce the overall burden on the U.S. Postal Service, and allow those voters with their own vehicles to submit absentee ballots without requiring
50 See, e.g., Carrie Levine, Ohio’s Mail-in Ballot Brouhaha: A Sign of Coming Trouble? THE CTR. FOR PUBLIC INTEGRITY (Apr. 28, 2020), https://publicintegrity.org/politics/elections/ohios-mail-in-ballot-brouhaha-a-sign-ofcoming-trouble/. 51 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.
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contact with anyone to obtain required postage or deliver in-person to the county board of elections.
67. Finally, there is no adequate statewide-mandated procedure in North Carolina for voters to cure deficient absentee ballot requests or the ballots themselves. In the March 2020 North Carolina primary, almost 15 percent of submitted absentee mail-in ballots were rejected.52 This number was even higher for voters of color, with 19 percent of mail-in ballots submitted by black voters rejected and almost 16 percent of mail-in ballots submitted by Latinx voters rejected.53 In light of the anticipated dramatic increase in the use of absentee ballots and the new restrictions under SB 683 on who may assist a voter to request an absentee ballot, there is a heightened risk that voters new to mail-in absentee voting will fail to follow the proper procedures without being afforded any opportunity to cure any deficiencies. As it stands, North Carolina’s election code risks disenfranchising vast numbers of voters attempting to submit mail-in absentee ballots.
F. In-Person Voting 68. North Carolina’s electorate has expressed a clear preference for in-person voting, with just 4 percent of voters casting mail-in absentee ballots in the 2016 general
52 See N.C. State Bd. of Elections, March 3, 2020 Absentee File, https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_03_03/absentee_20200303.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2020_03_03”  “absentee_20200303.zip”. The statistics generated from the absentee file do not include absentee by mail ballots that were either requested and not sent to the voter, or sent to the voter but not returned to the State Board of Elections. 53 Id.
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election.54 In general, preference for in-person voting holds disproportionately true for voters of color.55 There are a multitude of causes for this voter behavior pattern, but one
reason stems from the machinations used to steal votes from and defraud voters of color, among others.56 This means that North Carolina has not needed to, and indeed has not,
built the infrastructure to accommodate such a dramatic increase in voter demand for
absentee ballots without overwhelming current systems and causing mass disenfranchisement.57 Thus, it is critically important that voters be provided with ample
and as-safe-as-possible in-person voting options.
69. The CDC has issued guidance directing election officials to “reduce crowd
size at polling stations” such as encouraging “early voting, where voter crowds may be
smaller throughout the day,” which “minimizes the number of individuals a voter may
54 See N.C. State Bd. of Elections, November 8, 2016 History Statistics, https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_11_08/history_stats_20161108.zip This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2016_11_08”  “history_stats_20161108.zip”. 55 See David Becker, Mail-in ballots to avoid coronavirus? Yes, but here’s how to minimize chaos and unfairness, WASH. POST (Mar. 18, 2020), https://www.washingtonpost.com/opinions/2020/03/18/mail-in-ballots-avoidcoronavirus-yes-heres-how-minimize-chaos-unfairness/. 56 See generally, CAROL ANDERSON, ONE PERSON, NO VOTE: HOW VOTER SUPPRESSION IS DESTROYING OUR DEMOCRACY 19-22 (2018); STEVEN LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH, 1944-1969, Ch. 2 (1999). 57 See Ryan McCarthy, Whether the Ballot You Mail Is Counted May Depend On Where You Vote, PROPUBLICA (Apr. 30, 2020), https://www.propublica.org/article/whether-theballot-you-mail-is-counted-may-depend-on-where-you-vote.
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come in contact with.”58 There are two provisions of North Carolina law that have already and will continue to hinder county boards in providing safe and adequate in-person voting options, and there are a number of other adjustments needed to ensure voter and poll worker safety.
1. Ensuring Adequate Number of Poll Workers 70. The first problematic provision is North Carolina’s requirement that a majority of poll workers reside in the precinct where they serve on Election Day. See N.C. Gen. Stat. § 163-42(b). Upon information and belief, as of May 14, 2020, eight county boards have requested to eliminate 64 precincts for the upcoming Congressional District 11 Second Republican Primary, impacting over 50,000 voters.59 Several of these county boards specifically cited a lack of poll workers as a reason for consolidated precincts. 71. As the pandemic persists into the fall, older poll workers will continue to withdraw in numbers sufficient to preclude the operation of countless polling places. In the 2014 general election, over 60 percent of North Carolina poll workers were 61 years of age or older and, as a result, a significant portion of poll workers are in the 65-years-old-plus CDC risk category.60
58 Coronavirus Disease 2019 (COVID-19), Recommendations for Election Polling Locations, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last updated: Mar. 27, 2020). 59 See https://dl.ncsbe.gov/index.html?prefix=Public_Records_Requests/June%2023%20Second %20Primary_temporary_precinct_transfers/. 60 U.S. Election Assistance Comm’n, The 2014 EAC Election Administration and Voting Survey Comprehensive Report (Table 39), at 248,
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72. Defendant Director Bell requested a change in state law to allow county boards to recruit and train poll workers from across the county,61 and county board members from Congressional District 11 similarly conveyed to North Carolina’s leadership that this change “would significantly help us staff polling places in these challenging times.”62
73. As North Carolina faces the withdrawal of countless poll workers statewide, this requirement will make it extremely difficult, if not impossible, to cure those critical shortages, prevent the closure of any polling places, and minimize the lines, crowds, and wait times at operational polling places. Long wait times and crowds unduly place vulnerable voters at a greater risk of contracting COVID-19.
2. Early Voting Flexibility 74. North Carolina must also change its hours-uniformity requirement for onestop, better known as “early voting,” sites. Currently, if any early voting site is open in a county, all early voting sites must be open and all sites other than the county board office must be open 8:00 a.m. to 7:30 p.m. See N.C. Gen. Stat. § 163-227.6(c). As a result, precincts are unable to provide flexible hours that accommodate the specific behaviors and needs of the local voting population using that site. Precincts that might otherwise close
https://www.eac.gov/sites/default/files/eac_assets/1/1/2014_EAC_EAVS_Comprehensiv e_Report_508_Compliant.pdf. 61 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1). 62 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 27, 2020) (Exhibit 3).
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due to low anticipated activity must stay open, increasing costs for the entire county and causing precinct consolidation.63
75. After North Carolina imposed this requirement in June 2018 mandating uniform hours across all early voting sites within each county,64 the costs of implementing
this measure caused 43 counties to reduce the number of early voting sites in the 2018
general election compared to 2014 and over two thirds of counties to reduce weekend
hours. This disproportionately impacted black voters, who in 2018 made up approximately
22% of registered voters but 27% of those who cast ballots on the last Saturday of early voting.65
76. As discussed above, the anticipated shortage of poll workers will already
cause precinct consolidation in light of the global pandemic; the uniform hours requirement
will compound this, causing long lines and limited early voting sites during the early voting
period when social distancing and reducing crowds is required for safe election
administration. Individuals accustomed to early voting may very well be deterred by large
63 See Blake Paterson, Bipartisan Furor as North Carolina Election Law Shrinks Early Voting Locations by Almost 20 Percent, PROPUBLICA (Sept. 24, 2018), https://www.propublica.org/article/bipartisan-furor-as-north-carolina-election-lawshrinks-early-voting-locations-by-almost-20-percent. 64See An Act to Set Hours for One-Stop Early Voting Sites, S.L. 2018-112 (June 15, 2018). As originally written, the statute removed the final Saturday of early voting beginning in 2018; this was subsequently postponed. 65 See Voting Rights and Election Administration in North Carolina: Field Hearing Before the Subcomm. on Elections of the H. Comm. on House Administration (Apr. 18, 2019) (testimony of Tomas Lopez, Exec. Dir., Democracy North Carolina), https://docs.house.gov/meetings/HA/HA08/20190418/109315/HHRG-116-HA08-WstateLopezT-20190418.pdf.
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crowding and the inherent heightened risk of infection; they will thus be forced to choose between risking their health to cast a ballot or foregoing their right to vote.
3. Information Regarding Precinct Consolidation 77. The State Board of Elections must also create a more accessible, centralized way in which voters and advocates can monitor precinct consolidation, and thereby advocate against harmful precinct consolidations. Currently, each county board of elections must give notice at least 45 days before the election when altering or consolidating precincts. See N.C. Gen. Stat. § 163-128(a). This notice must be posted in a generally circulated newspaper, posted on the door of the county courthouse and county board of elections, and mailed to the chairmen of every political party in the county. Id. Voters only need to be notified of changes in their particular precinct 30 days before an election. Id. In order to ensure that all voters have access to information about precinct consolidations necessitated by poll worker and/or site shortages, the State Board must provide that information in a centralized and accessible manner.
4. Personal Protective Equipment 78. Finally, there is currently no provision for counties to provide poll workers and voters with Personal Protective Equipment (“PPE”) for use during in-person voting, such as protective masks and gloves for poll workers and/or voters, separation shields, antiseptic wipes for equipment, and single-use pens. Effective use of PPE can dramatically
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reduce the likelihood of coronavirus transmission,66 and these measures are needed to adequately protect voters exercising their constitutional rights. In a May 15, 2020, meeting of the State Board of Elections, Defendant Director Bell stated that she had ordered PPE for those counties holding the second Republican primary election on June 23, 2020. The same provisions are required for the 2020 general election and, because of the state-wide nature and expected high turnout of this election, the SBE Defendants must take action immediately to ensure counties obtain adequate supplies. Without these measures, plaintiffs will be forced to choose between their right to vote and their right to bodily integrity.
CLAIMS COUNT ONE (All Defendants) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983) 79. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 80. Under the First and Fourteenth Amendments to the U.S. Constitution, any burden on the right to vote must be balanced against a state’s interest in that requirement. The Supreme Court has set forth the following test: [T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those
66 See, e.g., Zeynep Tufekci et al., The Real Reason To Wear A Mask, THE ATLANTIC (Apr. 22, 2020), https://www.theatlantic.com/health/archive/2020/04/dont-wear-maskyourself/610336/.
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rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also id., at 788–789, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992). 81. “A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition.” Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring); see also N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016) (because there were fewer early voting days, more voters would have to vote on Election Day, and “[t]ogether, these produce longer lines at the polls on Election Day, and absent out-of-precinct voting, prospective Election Day voters may wait in these longer lines only to discover that they have gone to the wrong precinct and are unable to travel to their correct precincts. Thus, cumulatively, the panoply of restrictions results in greater disenfranchisement than any of the law’s provisions individually.”). 82. Unless Plaintiffs are granted the relief requested, the right to vote of thousands of North Carolinians, including Individual Plaintiffs and Organizational Plaintiffs and their members, will be severely burdened (if not denied entirely) in the general election on November 3, 2020. Voter Registration 83. North Carolina’s requirement that voter registration applications be submitted at least 25 days before the election in which the voter wishes to cast a ballot
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under N.C. Gen. Stat. § 163-82.6(d), and the DMV’s requirement that those registering online do so at least 25 days before the election, is a severe burden on the right to vote in light of the COVID-19 pandemic, which has caused a dramatic decrease in voter registration rates. If a voter is not able to register at least 25 days before the election, then their only recourse is to do same-day registration at an early voting site, therefore potentially exposing themselves or their families to infection via COVID-19. See N.C. Gen. Stat. § 163-82.6(f). Furthermore, North Carolina’s failure to provide online voter registration through other state agencies, and specifically Defendant DHHS, places a severe burden on those individuals who need to register online but are not registered with the DMV.
84. Any administrative burden created by extending the voter registration deadline and/or expanding online voter registration through Defendant DHHS is “de minimis” and Defendants cannot put forth a compelling or legitimate state interest in keeping the deadline as such in face of the emergency situation that COVID-19 has created and will create. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 48394, at *14 (W.D. Wis. Mar. 20, 2020); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016); Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016).
85. Since DMV has only allowed voters to register online without requiring a DMV transaction at the same time since March 2020, voters are generally unaware of this option. The 25-day deadline will hinder LWVNC’s efforts to promote voter registration and require LWVNC and its members to divert significant resources. The lack of other
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online registration options offered by the DHHS Defendants further impedes LWVNC’s ability to educate and engage in its voter registration efforts, and frustrates its mission to ensure that all eligible voters can register safely during the COVID-19 pandemic.
86. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing this 25-day deadline or failing to provide online voter registration through Defendant DHHS that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given that North Carolina allows for same-day registration at one-stop early voting sites up until the Saturday before the election and has already implemented an online voter registration method through DMV for certain voters. Upon information and belief, Defendant DHHS possesses “wet-ink” signatures of its benefits recipients. Accordingly, any purported state interests in enforcing this 25-day deadline or failing to provide Defendant DHHS online voter registration are neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail assistance restrictions
87. North Carolina’s restrictions on who can assist voters with completing and returning mail-in absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2(c), (e), and (e1) is a severe burden on the fundamental right to vote and Plaintiff LWVNC, their members, and the voters they will assist during the upcoming election. This restriction impairs LWVNC’s efforts to help voters cast a ballot and limits the assistance LWVNC and its members can provide to voters wishing to vote by mail, during an election in which a voters are expected to vote by mail—and do so for the first time—in unprecedented numbers.
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88. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing these restrictions that justifies the burden placed on the constitutional right to vote. Any purported state interest in enforcing the restriction on who can assist individuals in requesting absentee ballots is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail Witness Requirement
89. North Carolina’s two-witness or notary requirement for mail-in absentee voting pursuant to N.C. Gen. Stat. § 163-231(a) is a severe burden on Plaintiffs’ right to vote in light of the COVID-19 pandemic, because it will require voters, particularly voters at high risk of severe complications and death from COVID-19, to break their selfquarantine and violate social distancing directives at risk to their health. For example, Plaintiffs Clark, Edwards, and Priddy, who are each self-quarantined with one other person in their household, will be forced to choose between staying home and avoiding contact with people outside their households or seeking out another person to serve as a second witness despite guidance from the CDC and medical professionals to stay quarantined and limit contact with people outside their households. Plaintiffs Cates and Bentley, who are also self-isolated at home, live alone and do not have any family members nearby. Satisfying the two-witness requirement will require them to put themselves at risk of contracting COVID-19 in order to satisfy the two-witness certification requirement.
90. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing the two-witness or notary requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing the two-
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witness or notary requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail lack of fail-safe for absentee ballots that are not timely delivered to voters
91. North Carolina lacks any fail-safe option for mail-in absentee voters, if the state’s election administrators, as anticipated, cannot successfully deliver mail-in ballots on time to ten times as many absentee voters as usual. In order to prevent the wholesale and unlawful denial of the right to vote to voters who cannot risk voting in person at a polling site on or before Election Day, Defendants must afford voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day—i.e. within a certain number of days of the election of their request and/or within a certain number of days of the request—the option to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.67 Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by mail-in absentee ballot, in order to safeguard their health. If, as expected, North Carolina’s state and local election officials and their staff cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these five Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted. Accordingly, in order to protect their right to vote, just like overseas civilian voters, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley must be permitted to cast FWABs, as a fail-safe option.
67 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. 48
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92. Particularly in the midst of this ongoing public health crisis, the failure to offer this standardized fail-safe option for mail-in absentee voters, which would completely deny the right to vote to countless domestic civilian absentee voters, cannot be justified by any legitimate or important state interest. This option is already afforded to overseas civilian voters; the exclusion of domestic, civilian voters, at least in the limited context where a voter does not receive a requested absentee ballot in the mail, is unreasonable and discriminatory. See Burdick, 504 U.S. at 434 (“But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”) (emphasis added, internal quotations omitted). Any purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail failure to provide other accommodations
93. North Carolina’s failure to provide mechanisms for requesting absentee ballots by phone, email, or online, its failure to provide contactless drop boxes for absentee ballots that would allow voters to submit their absentee ballots from their vehicles instead of violating social-distancing directives and guidelines, and its failure to provide a statewide-mandated procedure for voters to cure deficient absentee ballot requests are all, individually or in combination, severe restrictions on Plaintiffs’ right to vote and will require them to put their own health at risk in order to successfully vote by absentee ballot. See Clingman v. Beaver, 544 U.S. 581 607–08 (2005) (O’Connor, J., concurring); N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016). Plaintiff Cates
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cannot secure an absentee ballot request form on her own, though she could if online or phone request options were made available. LWVNC will also have to redirect a significant amount of its limited resources toward helping eligible voters to access absentee ballot request forms without a phone, email, or online option to request an absentee ballot.
94. Additionally, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects. Furthermore, the lack of any uniform mechanism to cure will require LWVNC and Democracy NC to devote additional resources towards researching these various rules to help ensure the voters they assist have followed all procedures for requesting and filling out absentee ballots precisely, in addition to their general educational efforts.
95. In the midst of this ongoing public health crisis, there is no state interest in failing to provide these services that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given the numerous other states that do provide these services. Any purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Poll worker “home precinct” requirement
96. North Carolina’s requirement that a majority of poll workers reside in the precinct where they serve on Election Day pursuant to N.C. Gen. Stat. § 163-42(b) is a severe burden on Plaintiffs’ right to vote, as it will exacerbate a shortage of poll workers,
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force precinct consolidation and relocation, and create long lines and crowds on Election Day that contravene social distancing directives needed to protect Plaintiffs’ health.
97. This constitutes a severe burden on voters, particularly those who cannot wait in line for hours to vote. SBE Defendants are on notice that precinct consolidation due to lack of poll workers is likely, given the requests for precinct consolidation for the June 23, 2020 second Republican Primary, and their failure to prepare for this same eventuality in the November 3, 2020 general election will severely burden the rights of voters who rely on in-person voting. See Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969) (finding that the defendant’s failure to provide adequate voting facilities despite their foreknowledge of precinct consolidations deprived voters of their constitutional rights); see also League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (finding long lines and inadequate voting machines severely burdened Ohio voters’ right to vote).
98. Plaintiff Permar relies on polling sites being open in order to vote in-person given her disability and her need to use an ADA compliant voting machine. She also relies on polling places being located in places that are accessible by public transportation, which she uses to independently travel. Ms. Permar’s right to vote and others similarly situated would be severely burdened if precincts are consolidated in such a way as to force her or others similarly situated to travel to a polling place that is not accessible by public transportation or to wait in long lines exposing themselves to COVID-19 when they get to the polling place. Plaintiff LWVNC will also be required to divert resources to recruit poll workers, as well as in its voter education efforts to alert its members and those in their communities about precinct consolidations if the in-precinct requirement for poll workers
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remains in place and precincts are consolidated as a result. Democracy NC’s poll monitors will also have to divert their resources to ensure voters find the correct precinct, instead of providing the help they would otherwise provide voters.
99. In the midst of this ongoing public health crisis, there is no state interest in enforcing this requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. In-person voting uniform hours
100. North Carolina’s requirement that early voting sites in every county maintain uniform hours pursuant to N.C. Gen. Stat. § 163-227.6(c) is a severe burden on Plaintiffs’ right to vote, as the costs of maintaining uniform hours and limited resources in counties will cause precinct consolidation and long lines and crowds on early voting days that contravene social distancing directives needed to protect Plaintiffs’ health. Additionally, given the SBE Defendants’ knowledge about the effect that COVID-19 has had on the June 2020 runoff election and could have on the November 2020 general election, they have an obligation to mitigate precinct consolidation as much as possible so as to not severely burden voters’ right to vote. See Ury, 303 F. Supp. at 124.
101. Plaintiff Permar works at Duke Hospital as a staff assistant, thus it is important that she is able to vote at a time that is in line with her work schedule. Further, Ms. Permar or other similarly situated disabled individuals should not have to wait in long lines further risking their health or potential COVID-19 infection. Plaintiffs Democracy NC and LWVNC will also be required to divert resources in its voter education efforts to
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alert their members/advocates and those in their communities about precinct consolidations if the uniform hours requirement remains in place.
102. In the midst of this ongoing public health crisis, there is no state interest in enforcing this uniform hours requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Precinct-consolidation monitoring
103. North Carolina’s failure to provide a more accessible, centralized way in which voters and advocates can monitor precinct consolidation is a severe burden on Plaintiffs’ right to vote. The lack of centralized access to this information will impede and confuse voters’ ability to determine where and how best to vote in-person and will impede the efforts of advocates to oppose harmful precinct consolidations. Plaintiff Permar and other voters rely on being able to know in advance where early voting locations are, or where their election-day polling place is, so as to ensure that they are able to properly schedule a time to vote. Democracy NC is a central hub for voter information, and it would be a huge drain on its resources to not have easy access to proposed precinct consolidations to inform voters. In the midst of this ongoing public health crisis, there is no state interest in failing to provide this service that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide this service is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
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Personal Protective Equipment 104. North Carolina’s failure to provide PPE to all counties for use during early
and Election-Day in-person voting is a severe burden on Plaintiffs’ right to vote, as the failure to provide this will exacerbate the shortage of poll workers and increase the risk present to all individuals that vote in person. In conducting its Election Protection hotline and poll monitoring program, Democracy NC volunteers will almost certainly be queried about PPE, who has it, and how to get it if is not provided. In the midst of this ongoing public health crisis, there is no state interest in failing to provide PPE that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide PPE is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
105. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution by administering and enforcing the above laws and/or by failing to provide the above accommodations and services during the COVID-19 pandemic.
106. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of undue burdens on their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
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COUNT TWO (SBE Defendants) (Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to Bodily Integrity in Violation of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983) 107. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 108. Voting is protected by the First Amendment as a means of political association and political expression. See Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Norman v. Reed, 502 U.S. 279, 288–90 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787–89, 806 (1983); Kusper v. Pontikes, 414 U.S. 51, 56–58 (1973); Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). 109. Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. See Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968); Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Green v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997). 110. “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). Government actions that threaten the right to bodily integrity are subject to strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). The Supreme Court has invalidated voting requirements or conditions
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that require the forfeiture of another fundamental right. See Dunn v. Blumstein, 405 U.S. 330, 346, 353 (1972) (finding that durational residency requirement for voter registration placed unconstitutional condition on fundamental right to interstate travel).
111. The Fourteenth Amendment guarantees the right to bodily integrity, and this right is violated if government officials are deliberately indifferent to the violation of the plaintiff’s bodily integrity. See Missouri v. McNeely, 569 U.S. 141, 159 (2013); Guertin v. Michigan, 912 F.3d 907, 919 (6th Cir. 2019) (recognizing that “individuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest”) (quoting Planned Parenthood Sw. Ohio Reg. v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012)).
112. “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” Guertin, 912 F.3d at 921–22.
113. Defendants require Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley to satisfy unnecessary requirements for mail-in absentee voting that cannot be reasonably and safely accomplished without severely threatening their right to bodily integrity. Because in-person voting even more severely threatens to violate Plaintiffs’ bodily integrity by subjecting them to the significant risk of contracting COVID-19, Defendants’ enforcement of North Carolina’s requirements as to mail-in voting force Plaintiffs to forfeit their right to bodily integrity in order to exercise their right to vote. Should Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley exercise their right to vote by mail under these circumstances, Defendants will have knowingly subjected Plaintiffs to a foreign
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substance—the novel coronavirus that causes COVID-19—without a therapeutic basis or Plaintiffs’ consent.
114. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the Fourteenth Amendment to the U.S. Constitution, by requiring them to forfeit their right to bodily integrity in order to exercise their right to vote.
115. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of unconstitutional conditions on their rights to vote in violation of the Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT THREE (SBE Defendants) (Violation of the Organizational Plaintiffs’ Rights of Free Speech and Association in violation of the First and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. § 1983) 116. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 117. The First Amendment to the United States Constitution, as applied to the states through the Fourteen Amendment, prohibits an abridgment of the freedom of speech or associational rights. Any burden, regardless of how slight, “must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Norman, 502 U.S. at 288– 89.
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118. The restrictions on who can assist voters with completing and returning mailin absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2 effectively prohibits the Organizational Plaintiffs and their members’ core political speech and expressive conduct, which includes assisting voters with requesting and submitting absentee ballot requests in an effort to engage potential voters and encourage them to vote. These efforts are particularly important in the midst of the current public health crisis, where for many voting by mail is crucial to protecting their health and the health of their co-habitants and family members, and where the anticipated surge in individuals voting by mail means many will be doing so for the first time and without prior experience. Because of this prohibition, the Organizational Plaintiffs and their members will not be able to effectively engage potentially eligible absentee voters, nor will they be able to effectively facilitate those eligible voters requesting absentee ballots.
119. N.C. Gen. Stat. § 163-230.2 therefore chills the Organizational Plaintiffs’ speech and associational rights and does so without being narrowly-tailored to serve a compelling state interest. The restrictions on who can assist voters with completing and submitting absentee ballot requests are not justified by a state interest, especially in light of the current COVID-19 pandemic, where allowing individuals to follow social-distancing guidelines and self-quarantine is crucial to protecting their health and the health of their co-habitants and family members.
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COUNT FOUR (SBE Defendants) (Denial of Plaintiffs’ Right to Procedural Due Process in violation of the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1983) 120. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 121. The Due Process Clause of the Fourteenth Amendment prohibits the deprivation of “life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV § 1. “Where the government seeks to deprive someone of a liberty interest protected by due process, due process demands that certain procedural safeguards be provided.” United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). A liberty interest that is governed by due process can be created by the Constitution or “may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 122. At a minimum, “procedural due process requires fair notice of impending state action and an opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d 140, 146 (4th Cir. 2014) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 123. “Proper notice is ‘an elementary and fundamental requirement of due process,’ and must be reasonably calculated to convey information concerning a deprivation.’” Snider Int’l, 739 F.3d at 146 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)); see also Presley v. City of Charlottesville, 464 F.3d 480, 490 (4th Cir. 2006). 124. As for the opportunity to be heard, “Mathews set forth the familiar three-step inquiry for determining the adequacy of the opportunity to be heard: a balancing of the
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private interest and the public interest, along with ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.’” Snider Int’l, 739 F.3d at 146 (quoting Mathews, 424 U.S. at 335). “Fundamental to due process is an opportunity to be heard—‘an opportunity which must be granted at a meaningful time.’” Sciolino v. City of Newport News, Va., 480 F.3d 642, 653 (4th Cir. 2007) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
125. Absent exigent circumstances, due process requires pre-deprivation procedures. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original)); Sciolino, 480 F.3d at 653 (“An opportunity to clear your name after it has been ruined by dissemination of false, stigmatizing charges is not ‘meaningful.’”).
126. North Carolina law gives all registered North Carolina voters statutory rights to request and cast a mail-in absentee ballot that will be processed and counted, thereby vesting them with liberty interests. Eligible, registered voters enjoy an “individual and personal” right to vote under North Carolina law. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)).
127. However, the SBE Defendants do not afford mail-in absentee voters any notice of or opportunities to cure material defects in their absentee ballot request forms or absentee ballots including their certificate envelopes that will result in rejection, thereby depriving Plaintiffs and other registered North Carolina voters of their liberty interests in
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requesting and casting a mail-in absentee ballot and exercising their fundamental right to vote.
128. The risk of erroneous deprivation is high, as these eligible, registered North Carolina voters are entitled by law to request an absentee ballot and to vote an absentee ballot and, therefore, must be provided with an additional procedural safeguard, the opportunity to timely cure any defect that would cause the absentee ballot request form’s rejection or the absentee ballot’s rejection.
129. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects.
130. Defendants cannot advance any interests that outweigh the risk of erroneous deprivation. The threat of disenfranchising Plaintiffs and their members far outweighs any increased administrative burden in affording voters an opportunity to cure their absentee ballot request form defects or their absentee ballot defects, including any defects on the certificate envelope. Defendants’ interest in conducting fair election administration and preserving election integrity would not be compromised in the slightest, and they would satisfy their weighty interest in abiding by federal constitutional requirements.
131. For the foregoing reasons, SBE Defendants have violated and will continue to violate Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley’s federal constitutional rights to procedural due process.
132. At all relevant times, Defendants have acted under color of state law. 61
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133. Defendants have deprived and will continue to deprive Plaintiffs Clark, Cates, Edwards, Priddy, Bentley and all voters seeking to vote by mail of their right to adequate notice and a meaningful opportunity to be heard in order to cure deficiencies with their absentee ballot request forms and their absentee ballots. This wholly fails to meet these minimum requirements of procedural due process, as guaranteed to Plaintiffs by the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
COUNT FIVE (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 134. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Compliant and the paragraphs in the counts below as though fully set forth herein. 135. Under Title II of the Americans with Disabilities Act, state and local governments must not impose requirements on participation in public services, programs, or activities, including voting, that screen out individuals with disabilities from fully and equally enjoying those programs and must make reasonable modifications in policies, practices, or procedures, including voting and election procedures, when the modifications are necessary to avoid discrimination on the basis of disability. 136. Individuals who suffer a significant medical vulnerability that places them at extremely high risk of serious bodily injury or death should they leave the confines of their homes—including Plaintiffs Clark, Edwards, and Priddy, whose health conditions put them at significant risk of severe illness or death should they contract COVID-19—have a disability within the meaning of the ADA.
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137. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, and Priddy possess are “at higher risk for severe illness from COVID-19.” Because of these high risks, Plaintiffs Clark, Edwards and Priddy are substantially affected and unable to enjoy at least one major activity: their fundamental right to vote.
138. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 Diabetes, a physical impairment that has detrimental effects on her health and put her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions are physical impairments that puts him at risk of severe illness from COVID-19. These physical impairments substantially affect the major life activities of Plaintiffs Clark, Edwards, and Priddy because they cannot safely exercise their fundamental right to vote without risking their lives. Plaintiffs Clark, Edwards and Priddy should be provided meaningful access to the ballot, either through a more accessible mail-in voting process or safer in-person voting precautions.
139. Plaintiffs Clark, Edwards, and Priddy are unable to safely obtain two witness signatures without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death. Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot unless SBE Defendants eliminate the two-witness signature requirement.
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140. Defendants’ failure and refusal to ensure that plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitute a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards and Priddy, whose health limits their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the ADA.
141. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Title II of the Americans with Disabilities Act.
COUNT SIX (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 142. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 143. Under Section 504 of the Rehabilitation Act, federally funded programs, including state and local programs related to elections and voting, must not discriminate against individuals with disabilities and must make reasonable accommodations to allow individuals with disabilities to access the federal funded program, activity, or service. 144. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act. 145. Individuals who suffer a significant medical vulnerability that places them at extremely high risk of serious bodily injury or death should they leave the confines of their
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homes—including Plaintiffs Clark, Edwards, and Priddy whose health conditions put them at significant risk of severe illness or death should they contract COVID-19—have a disability within the meaning of the Rehabilitation Act.
146. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, and Priddy possess are “at higher risk for severe illness from COVID-19.” Because of these high risks, Plaintiffs Clark, Edwards and Priddy are substantially affected and unable enjoy at least one major activity: their fundamental right to vote.
147. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical impairment that has detrimental effects on her health and put her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions are physical impairments that put him at risk of severe illness from COVID-19. These physical impairments substantially affect the major life activities of Plaintiffs Clark, Edwards, and Priddy because they cannot safely exercise their fundamental right to vote. Plaintiffs Clark, Edwards, and Priddy should be provided meaningful access to the poll, either through a more accessible mail-in voting process or safer in-person voting precautions.
148. Plaintiffs Clark, Edwards, and Priddy are unable to obtain two witness signatures without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death.
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Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot unless Defendants eliminate the two-witness signature requirement.
149. Defendants’ failure to ensure that plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitutes a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards, and Priddy ,whose physical impairments limit their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the Rehabilitation Act.
150. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
COUNT SEVEN (SBE Defendants) (Disparate Impact Claims in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 151. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 152. Under Title II of the Americans with Disabilities Act, States cannot promulgate standards, criteria, or methods of administration that have the effect of discriminating against individuals based on their disabilities. 153. The Defendants are all public entities covered by Title II of the ADA. 154. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy are significantly more likely to risk serious illness or death if
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they contract COVID-19. Defendants’ enforcement of current voting regulations will unnecessarily expose Plaintiffs Clark, Edwards, and Priddy to an unjustifiable risk of severe illness from COVID-19 in order to vote. This will result in unjustifiable disparate impact upon Plaintiffs Clark, Edwards and Priddy if they attempt to vote because they will be more harshly affected by COVID-19, in violation of the ADA.
155. Defendants will be unable to show that the current voting regulations are justified by legitimate state interests.
156. The disparate impact that will result from enforcing these conditions has the effect of prohibiting individuals with disabilities from participating in the November 3, 2020 general election, in violation of Title II of the ADA.
COUNT EIGHT (SBE Defendants) (Disparate Impact Claims in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 157. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 158. Section 504 of the Rehabilitation Act prohibits federally funded programs, including state and local programs related to elections and voting, from enacting facially neutral policies that have a discriminatory impact on persons within a protected class. 159. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act. 160. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy are significantly more likely to risk serious illness or death if
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they contract COVID-19. Defendants’ enforcement of current voting requirements will

unnecessarily expose Plaintiffs Clark, Edwards, and Priddy to an unjustifiable risk of

severe illness from COVID-19 in order to vote. This will result in disparate impact upon

Plaintiffs Clark, Edwards, and Priddy if they attempt to vote because they will be more

harshly affected by COVID-19, in violation of the Rehabilitation Act.

161. Defendants will be unable to show that the current voting regulations are

justified by legitimate state interests.

162. The disparate impact that will result from enforcing these conditions has the

effect of prohibiting individuals with disabilities from participating in the November 3,

2020 general election, in violation of Section 504 of the Rehabilitation Act.

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Court:

(a)

Assume jurisdiction over this matter;

(b)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h) (imposing 25-day voter registration

deadlines); N.C. Gen. Stat. § 163-230.2(c), (e), and (e1) (imposing restrictions on absentee

ballot request assistance); N.C. Gen. Stat. § 163-231(a) (imposing the double-witness

certification requirement); N.C. Gen. Stat. § 163-227.6(c) (requiring uniform hours in

precincts); and N.C. Gen. Stat. § 163-42(b) (requiring a majority of poll workers to come

from the precinct in which they serve), and the Defendants’ failure to expand voter

registration via online portals available through DHHS services, failure to establish

contactless drop boxes for absentee ballots, and to establish mechanisms for requesting 68

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absentee ballots by phone, email, and online, failure to establish mechanisms to cure

deficient absentee ballot requests and absentee ballots, failure to allow for submission of

FWAB ballots, failure to provide PPE to county boards of election for use during in-person

voting, and failure to establish a more accessible, centralized way in which voters and

advocates can monitor precinct consolidation (and thus advocate against harmful precinct

consolidations), in the context of the pandemic and for the November 3, 2020 general

election, taken individually or in combination, violate the First and Fourteenth

Amendments to the U.S. Constitution, as enforced through 42 U.S.C. § 1983;

(c)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

§ 163-230.2(c), (e), and (e1) (imposing restrictions on absentee ballot request assistance),

N.C. Gen. Stat. § 163-231(a) (imposing the double-witness certification requirement), and

failure to expand voter registration via online portals available through DHHS services,

establish contactless drop boxes for absentee ballots, establish mechanisms for requesting

absentee ballots by phone, email, and online, in the context of the pandemic and for the

November 3, 2020 general election, taken individually or in combination, violate the

unconstitutional condition doctrine and thereby Plaintiffs’ First and Fourteenth

Amendment right to bodily integrity, as enforced through 42 U.S.C. § 1983;

(d)

Preliminarily and permanently enjoin Defendants from administering and

enforcing in the 2020 general election and for the persistence of the COVID-19 pandemic:

i. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), imposing 25-day voter

registration deadlines;

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ii. N.C. Gen. Stat. § 163-230.2(c), (e), and (e1), imposing restrictions on

absentee ballot request assistance;

iii. N.C. Gen. Stat. § 163-231(a), imposing the double-witness certification

requirement;

iv. N.C. Gen. Stat. § 163-227.6(c), requiring uniform hours in precincts; and

v. N.C. Gen. Stat. § 163-42(b), requiring a majority of poll workers to come

from the precinct in which they serve.

(e)

Preliminarily and permanently enjoin Defendants from violating Plaintiffs’

constitutional and federal statutory rights with respect to any election in the state during

the COVID-19 pandemic.

(f)

Order the SBE Defendants to extend the voter registration deadline in N.C.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), until 5:00pm on the last Saturday of early

voting and the DOT and DHHS Defendants to process voter registrations online and

received in their offices up until and including 5:00pm on the last Saturday of early voting.

(g)

Order Defendants to implement measures to ensure eligible North

Carolinians are able to vote absentee by mail, with respect to any election in the state during

the COVID-19 pandemic, including:

i. Expanding voter registration via online portals available through DHHS

services;

ii. Establishing contactless drop boxes for absentee ballots;

iii. Establishing mechanisms for requesting absentee ballots by phone, email,

and online; 70

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iv. Establishing mechanisms to cure deficient absentee ballot requests and

absentee ballots;

v. Establishing a mechanism for accepting FWAB ballots; and

vi. Establishing a more accessible, centralized way in which voters and

advocates can monitor precinct consolidation.

(h)

Order the SBE Defendants to permit mail-in absentee voters to cast a

downloadable Federal Write-in Absentee Ballot (“FWAB”), if and only if their timely-

requested absentee ballot has not arrived in time for the voter to timely cast that ballot so

that it will be counted;

(i)

Order Defendants to implement a remedial plan to educate voters regarding

their options to register to vote, and obtain and cast a ballot.

(j)

Retain jurisdiction to monitor Defendants’ compliance with this Court’s

judgment;

(k)

Grant Plaintiffs their reasonable costs and attorneys’ fees incurred in

bringing this action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and as otherwise

permitted by law; and

(l)

Grant such other relief as this Court deems just and proper.

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Dated: May 22, 2020.
/s/ Jon Sherman Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email: jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org
*Pro hac vice application forthcoming

Respectfully submitted,
/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition.org
jeff@southerncoalition.org
/s/ George P. Varghese George P. Varghese* WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Fascimile: (617) 526-5000 Email: george.varghese@wilmerhale.com

Joseph J. Yu* WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: (212) 230-8800 Fascimile: (212) 230-8888 Email: joseph.yu@wilmerhale.com

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EXHIBIT 1 Letter from Karen Brinson Bell, Executive Director,
N.C. State Board of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020)
Exhibit to Complaint Case 1:20-cv-00457-WO-JLW Document 1-1 Filed 05/22/20 Page 1 of 7

Mailing Address: P.O. Box 27255, Raleigh, NC 27611
(919) 814-0700 or (866) 522-4723
Fax: (919) 715-0135

TO:
FROM: RE: DATE:

Governor Roy Cooper; Speaker Tim Moore; President Pro Tempore Phil Berger; Joint Legislative Elections Oversight Committee; Joint Legislative Oversight Committee on General Government; and House Select Committee on COVID-19, Continuity of State Operations Working Group Karen Brinson Bell, Executive Director Recommendations to Address Election-Related Issues Affected by COVID-19 March 26, 2020

The spread of the novel coronavirus (COVID-19) impacts the conduct of elections and daily operations for the State Board of Elections (State Board) and county boards of elections. In response, our agency has taken a number of actions in recent days and weeks to address election-related impacts of the pandemic and inform the public about our efforts. These include:
• An emergency Executive Order issued on March 20, 2020, that, among other things, rescheduled the Republican second primary in Congressional District 11 from May 12, 2020, to June 23, 2020.
• An amended Administrative Rule 08 NCAC 01 .0106, by both emergency and proposed temporary rulemaking, to clarify the Executive Director’s statutory authority to exercise emergency powers to conduct an election in a district where the normal schedule for the election is disrupted by a natural disaster, extremely inclement weather, or armed conflict. The amendment clarifies that a catastrophe arising from natural causes includes a disease epidemic or other public health incident that makes it impossible or extremely hazardous for elections officials or voters to reach or otherwise access the voting place or that creates a significant risk of physical harm to persons in the voting place, or that would otherwise convince a reasonable person to avoid traveling to or being in a voting place.
• Numbered Memo 2020-11, released on March 15, 2020, provides guidance on immediate actions that may be taken by authority of the Executive Director and other steps that may be taken by county boards of elections.
• Establishment of a working group of State and county election officials to consider immediate steps that should be taken for the conduct of the federal second primary and also more long-term steps including legislative requests to administer elections in times of disease epidemics, necessary measures if mail balloting were expanded, and efforts that must be taken to ensure the health and well-being of voters and workers during in-person voting.
• A statement released by the NCSBE on March 12, 2020.

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While the State Board will continue to administer elections in the wake of COVID-19 within our current legal authority, the State Board respectfully recommends the General Assembly consider making the following statutory changes to address the impacts of the coronavirus pandemic on our elections. We believe that, in order to ensure continuity and avoid voter confusion, the changes should be made permanent, except where indicated otherwise.
• Expand options for absentee requests. We recommend allowing a voter to submit an absentee ballot request form by fax and email. Current law restricts the return of the absentee request form to the voter and the voter’s near relative or legal guardian, and restricts the methods by which the requests can be returned to in-person or by mail or designated delivery service. We also recommend a limited exception to G.S. § 163-230.2(e)(2) to allow county boards of elections to pre-fill a voter’s information on an absentee request form. The voter or near relative would still be required to sign the form, but this change would allow voters who are home due to COVID-19 to request an absentee request form by phone and have a pre-filled form sent to them rather than having to travel to the county board office to receive assistance.
• Establish online portal for absentee requests. The State Board expects a large increase in the number of voters who choose to vote absentee by mail this year, and creating an online portal for absentee voting would make it easier for voters to request an absentee ballot from home. The voter or near relative would provide identifying information (including the voter’s date of birth and the last four digits of the voter’s Social Security or drivers license number), and an electronic signature as defined in G.S. § 66-312 of the Uniform Electronic Transaction Act would be permitted. An allocation of funds to purchase a program or application to support this functionality may be needed.
• Allow a voter to include a copy of a HAVA document with their absentee request form if the voter is unable to provide their drivers license number or last four digits of their Social Security number. We recommend allowing a voter who did not include their drivers license number or the last four digits of their Social Security number the option to include a copy of a current utility bill, bank statement, government check, paycheck, or other government document showing the name and address of the voter. Making this change to G.S. § 163230.2 would make it easier for those who wish to vote absentee by-mail to do so. The State Board has received multiple reports from county boards of elections and from voters that, without this option, some voters are no longer able to request an absentee ballot. This particularly affects senior citizens who may not have a drivers license number and cannot recall or do not have access to their Social Security number. Allowing this option will make it easier for those most at risk of contracting COVID-19 to vote absentee by mail.
• Establish a fund to pay for postage for returned absentee ballots. Elections officials across the nation are anticipating a surge in absentee voting in light of
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restrictions on movement imposed due to the spread of COVID-19. Prepaid postage would increase the likelihood that a voter would return their ballot, would eliminate the need for a voter to leave their home to purchase postage, and would also decrease any incentive for a voter to turn their ballot over to someone else. Prepaid postage for the return of absentee ballots would also further enable residents and patients of facilities such as nursing homes and group homes to return their ballots safely, easily, and with minimal human contact.
• Reduce or eliminate the witness requirement. In light of social distancing requirements to prevent the spread of COVID-19, we recommend reducing the witness requirement for the certification on absentee container-return envelopes. Currently, a voter must have their absentee envelope signed by two witnesses or one notary. North Carolina residents are currently being asked to stay at home, and without a timeline for when the disease will be under control, requiring only one witness would reduce the likelihood that a voter would have to go out into the community or invite someone to their home to have their ballot witnessed. Eliminating the witness requirement altogether is another option and would further reduce the risk.
• Modify procedure for counting of ballots on Election Day. To allow county boards of elections more time to process the anticipated surge in absentee ballots, we recommend amending the law to provide that ballots received by the Saturday prior to the election must be counted on Election Day, and all other absentee ballots that are timely received will be counted on the day of the canvass. Currently, G.S. § 163-234(2) requires county boards to meet on Election Day to count all absentee ballots received by 5:00 p.m. on the day before the election. Changing the timeframe for when absentee ballots are counted would help ease the burden of an increased volume of absentee ballots, especially in larger counties. This change would not affect the deadline for the county boards to receive absentee ballots, nor would it affect which ballots are counted; rather, it would ameliorate the anticipated increase in absentee ballots received by county boards between the Saturday before the election and 5:00 p.m. on the day before the election. As part of this change, we also recommend extending county canvass to 14 days after the election, rather than 10 days after the election as provided in G.S. § 163182.5(b), to allow county boards of elections sufficient time to count the large number of ballots that are anticipated being received; State Board canvass would also need to extended accordingly.
• Temporarily modify restrictions on assistance in care facilities. Currently, G.S. § 163-226.3(a)(4) makes it a Class I felony for an owner, director, manager, or employee of a hospital, clinic, nursing home, or adult care home to assist a voter in that facility in requesting, voting, or returning the voter’s absentee ballot. There are important reasons to discourage facility employees from assisting patients and residents with their absentee requests and with voting their ballots. However, many localities are currently restricting or banning visitors to facilities, and an Executive Order issued by the Governor prevents visitors altogether to reduce the spread of COVID-19. With this in mind, it may not be possible for
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multipartisan assistance teams (MATs), or others who would traditionally assist facility residents, to provide assistance. Individuals may also be unwilling to serve on MATs due to the increased risk of transmission of COVID-19 at a facility. Many voters in these facilities do require help with requesting, voting, and/or returning their ballots, and with no option available for assistance they may effectively be disenfranchised. We suggest considering options, such as temporarily allowing a facility employee to assist, to ensure these voters are able to continue to exercise their right to vote.
• Clarify authorization for telephonic meetings. It would be helpful to clarify that telephonic meetings and meetings held by other remote means are specifically authorized by the open meetings law. State Board counsel construe Article 33C of Chapter 143 to permit telephonic and other remotely held meetings. However, the UNC School of Government has a different interpretation of the law based on its stated familiarity with the law’s history.
• Expand student pollworker program. We are recommending expanding the student pollworker program to allow students to fill the role of judge or chief judge, to allow juniors or seniors to serve as long as they are at least 16 years old, and to allow service as a pollworker to count as an approved school trip. Chief judges and judges would still be appointed from recommendations provided by the political parties. Currently, G.S. § 163-42.1 requires students be at least 17 years old and only allows them to serve in the role of precinct assistant. It also requires the principal of the student’s school to recommend the student; we suggest this section include an exception to that requirement if the school is closed. These changes would increase the county boards of elections’ recruitment of students, who tend to be less at risk of COVID-19. The changes will be especially necessary if large numbers of pollworkers are unable to serve. The average age of pollworkers in North Carolina is around 70 and the role requires significant interaction with the public, so we anticipate that pollworkers in at-risk categories may be advised not to serve or may be unable to serve this year.
• Make Election Day a holiday. Designating Election Day as a State holiday would expand the potential pool of pollworkers to students, teachers, and younger individuals. It would also encourage state and county employees to work the polls. These groups tend to be in a lower-risk category for COVID-19 and therefore would be an asset given current concerns. An alternative option would be to provide paid leave for state and county employees who serve as pollworkers and providing course credit for student pollworkers.
• Increase pay for pollworkers. Precinct officials safeguard the democratic process and help ensure confidence in the system. Increasing pay for pollworkers will help county boards of elections recruit and retain a strong elections workforce this year and for years to come. Current pay for precinct officials is the state minimum wage, $7.25 per hour. G.S. § 163-46. On Election Day, pollworkers must serve for the entire day without leaving the site—a shift of more than 14 hours. The minimum wage requirement was put in place in 1981 (see Session
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Law 1981-796). Ensuring that pollworkers’ unemployment benefits are not affected by their service is another way to increase recruitment efforts.
• Eliminate requirement that a majority of pollworkers reside in precinct. Eliminating the requirement in G.S. § 163-41(c) that a majority of pollworkers at a polling place must reside in the precinct would provide county boards of elections with greater flexibility to staff their precincts. It would increase the likelihood a county board of elections would be able to keep a polling place open rather than having to combine it with another polling place to meet the residency requirement.
• Temporarily suspend purchase and contract requirements for elections-related supplies and other items. To allow the State Board and county boards to continue operating in a time when many business and government entities have reduced capacity or have closed, temporarily lifting the purchase and contract requirements of Article 3 of Chapter 143 in 2020 would significantly speed up the ability to procure necessary supplies.
• Match HAVA funds. In order to receive federal elections security funds that were authorized in late 2019, the State must make a 20% match. This funding will be indispensable in our agency’s continued effort to secure North Carolina’s elections. This is true even more so as we react and respond to the pandemic, since times of crisis and uncertainty increase the threats of cyber attacks, phishing attempts, and scams. Federal authorities have also indicated these funds may be used for COVID-19 response efforts such as cleaning supplies and protective masks for staff and pollworkers, resources to meet an unanticipated increased demand for mail ballots due to self-isolation and quarantine in response to COVID19, and temporary staff to process the increased absentee ballot demand. Funds may also be used for costs incurred to communicate law changes, such as changes in absentee-by-mail ballot rules, that could result from the pandemic. Exempting HAVA-funded positions at the State Board from a possible hiring freeze would also be important to ensuring the agency is able to continue to secure the statewide voter registration database and many other duties to protect North Carolina’s elections from cyber threats.
• One-Stop. Consider whether changes to one-stop requirements, such as site and hour requirements, may be needed in light of the uncertainty regarding containment of the COVID-19 pandemic by the early voting period in October 2020. Currently, if any one-stop site is open all one stop-sites must be open and all sites other than the county board office must be open 8:00 a.m. to 7:30 p.m. County boards of elections need flexibility to determine hours because they are affected differently by, and respond differently to, the COVID-19 pandemic.
While the situation with COVID-19 is changing on a daily and sometimes hourly basis, we believe the above recommendations will help the elections that form the basis of North Carolina’s democracy remain strong and resilient in these uncertain times.
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We are appreciative of the appointment of the House Select Committee on COVID-19, Continuity of State Operations Working Group, and I stand ready to answer your questions or provide any other information that may be useful in consideration of these recommendations. Sincerely, Karen Brinson Bell Executive Director State Board of Elections
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EXHIBIT 2 Letter from Karen Brinson Bell, Executive Director,
N.C. State Board of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020)
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KAREN BRINSON BELL Executive Director

Mailing Address: P.O. Box 27255, Raleigh, NC 27611

Phone: (919) 814-0700 or (866) 522-4723

Fax: (919) 715-0135

TO:
FROM: RE: DATE:

Governor Roy Cooper; Speaker Tim Moore; President Pro Tempore Phil Berger; Joint Legislative Elections Oversight Committee; Joint Legislative Oversight Committee on General Government; House Select Committee on COVID-19, Continuity of State Operations Working Group; House Democratic Leader Darren Jackson; Senate Democratic Leader Dan Blue Karen Brinson Bell, Executive Director CARES Act Request and Clarification to Recommendations to Address ElectionRelated Issues Affected by COVID-19 April 22, 2020

We write to provide you with updated information regarding our legislative requests made on March 26, 2020, including estimated costs and the timeframes for when changes would need to be made. We are also writing to provide additional detail about the Coronavirus Aid, Relief, and Economic Security (CARES) Act requirements that we received last week. On April 6, 2020, we were informed of North Carolina’s award of $10,897,295 under the CARES Act, which was appropriated “to prevent, prepare for, and respond to coronavirus, domestically or internationally, for the 2020 Federal election cycle.” The State match requirement is 20%, or $2,179,459.
We have completed two trainings to better understand how the match may be met and how the funds may be applied. Some key points are:
• The funds are for additional costs, either new or increased, associated with the national emergency related to coronavirus.
• All funds must be spent or incurred by December 31, 2020 or returned to the federal government.
• Pre-award costs may be included if they were incurred on or after January 20, 2020. • The State match may be funded over two years and may also be met:
o By direct funding of the State; o By indirect or direct costs incurred by the State Board of Elections, county boards
of elections, and/or partners supporting state or county election boards to conduct elections through this pandemic; and/or, o Through in-kind contributions. We are working with the National Association of State Election Directors to identify hand sanitizer and other supplies that may be provided free of charge if available.
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To date, we have identified $58,962 already incurred by the State Board of Elections, county boards of elections, and supporting entities that can be credited towards the State’s match. This includes $38,031 in indirect costs incurred by the State Board of Elections; $14,931 in direct costs incurred by the county boards of elections; and $6,000 in in-kind donations.
We therefore are requesting state funding of $2,120,497 to receive the $10+ million awarded to North Carolina.
Through these funds we can offset significant new and increased costs to the counties because of a projected 30% to 40% voter absentee-by-mail participation rate (compared to a 4% to 5% rate traditionally), the need to more thoroughly sanitize and improve hygiene methods during one-stop early voting and on Election Day, and to address possible poll worker shortage due to illness or reluctance or inability to serve. The CARES Act funds would directly assist counties through bulk purchases, state purchase and distribution to the counties, or through reimbursement, and could include but are not limited to the cost of:
• One-time-use pens and styluses for each voter, or sanitization of reusable supplies • Hand sanitizer and masks for voters, poll workers, and election staff • Social distancing tools and protective devices such as face shields, stanchions and
plexiglass shields at check-in stations • Facility rental fees to assist counties in moving to sites large enough to accommodate social
distancing, including former department stores or grocery stores, if available • Facility cleaning fees before, during, and after the election • Increased postage costs due to a higher volume of absentee-by-mail requests • Mail tracking software to help the voter understand where their ballot is in the process and
to help the counties prepare for the volume of incoming returned ballots • Cost of additional absentee-by-mail envelopes and other supplies
Just to conduct the General Election statewide on Election Day, we will operate nearly 2,700 voting sites with approximately 18,000 workers employed for 14 to 16 hours. We are preparing for more than 4.5 million voters to vote in-person or by-mail in this election. To ensure the health and safety of the voters and workers, the costs add up quickly. And while we would like to think that coronavirus will be a distant memory by November, we must prepare to address lingering fears, new social norms, and the possibility that the virus could reoccur seasonally as do influenza and other viruses. As elections officials, we must prepare for the worst-case scenario to ensure that voters are able to cast their ballots. All of this means we need legislative approval for the associated State match to move forward with the CARES Act funding.
Procuring and purchasing these supplies must happen now to ensure delivery by July when counties will begin to assemble their supply kits, train poll workers, and receive orders from print houses. We must also be mindful that all 50 states and territories will be implementing similar procedures for the same Election Day and the supply chain is very stressed to meet the demands.
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For these reasons, we also request that the General Assembly move forward with the following recommendations during the special session beginning April 28, 2020. These are immediate needs that apply to the 11th Congressional District Republican Second Primary, the new Columbus County Commissioner District 2 Republican Primary, and the 2020 General Election. Particular to the General Election, because of the high expected turnout for a presidential general election, supplies must be ordered, printing changes must be submitted and scheduled with print houses, and other changes or orders should be completed by June 15, 2020 to meet deadlines associated with that election, which starts with absentee-by-mail voting on September 4, 2020. The recommendations needing immediate consideration for all three elections are:
• Match CARES Act funds as outlined above.
• Match HAVA funds as outlined in my March 26, 2020 letter.
• Temporarily suspend purchase and contract requirements for elections-related supplies and other items. Because of the time limitations and amount of supplies needed to protect voters and pollworkers from COVID-19, the State Board and county boards may have difficulty complying with procurement processes without the temporary suspension. This change would need to happen right away as we are currently attempting to procure many supplies due to the upcoming second primary and the shortages that have occurred with so many states competing for resources.
 No additional expected cost
• Expand options for absentee requests (allow requests by fax and email). We recommend allowing a voter to submit an absentee ballot request form by fax and email to allow voters to submit their absentee requests without leaving their home or needing to purchase stamps or envelopes. This change needs to be made as soon as possible as voters may already request absentee ballots for the June 23 and November 3 elections.
 No additional expected cost
• Allow a voter to include a copy of a HAVA document with their absentee request form if the voter is unable to provide their driver’s license number or last four digits of their Social Security number. Restoring this option will make it easier for those most at risk of contracting COVID-19 to vote absentee by-mail. This change is needs to be made as soon as possible as voters may already request absentee ballots for the June 23 and November 3 elections.
 No additional expected cost
• Reduce or eliminate the witness requirement for absentee ballots. Most voters, under current law, would have to invite another adult into the voter’s home to complete the voting process since most voters do not live with two other individuals age 18 or older. This increases the risk of transmission or exposure to disease. By reducing the witness requirement to one witness during a disease epidemic, we can effectively conduct
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absentee-by-mail voting while reducing a voter’s risk of disease. Additionally, it should be noted that we continue to support restricting the return of absentee-by-mail ballots to the voter or near relative as enacted by Session Law 2019-239. It is necessary to make the change now in order to update the absentee instructions and return envelope, since these will need to be redesigned by June and printed in early July to ensure the counties can meet the start of absentee-by-mail voting on September 4, 2020.
An alternative option, and one that could be carried out beyond the 2020 General Election, is to consider signature matching software. Software is available to compare the voter’s signature on file to the signature provided on the absentee-ballot return envelope. Moving to this verification process would eliminate the need for witnesses.
 No additional expected cost to reducing witness requirement. Software would have added cost, but we do not yet have information about the expected cost.
• Temporarily modify restrictions on assistance in care facilities. Many localities are currently restricting or banning visitors and family members to facilities, and an Executive Order issued by the Governor prevents visitors altogether to reduce the spread of COVID19. Additionally, across the state, care facilities have tragically experienced large numbers of coronavirus cases and deaths. We do not know what the conditions will be like when absentee voting occurs from September to November this year. With this in mind, it may not be possible for multipartisan assistance teams (MATs), or others who would traditionally assist facility residents, to provide assistance. Many voters in these facilities do require help with requesting, voting, and/or returning their ballots, and with no option available for assistance, they may effectively be disenfranchised. We suggest considering options, such as temporarily allowing a facility employee to assist, to ensure these voters are able to continue to exercise their right to vote. Similar to states like Indiana, two trained facility employees not of the same political party could be designated to administer voting and could be trained accordingly by the county board prior to serving in this capacity. Election officials could then transport materials to and from the facility with chain of custody procedures documenting the acceptance of materials by the designated facility administrators. It is necessary to make this change as soon as possible to designate and train appropriate individuals to serve in facilities.
 No additional expected cost
• Expand student pollworker program and eliminate requirement that a majority of pollworkers reside in the precinct. We recommend this change be made immediately because there are shortages in some polling places in the 11th Congressional District Republican Second Primary and the new Columbus County Commissioner District 2 Republican Primary that may require transferring voters to another precinct.
 No additional cost expected
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We also request the General Assembly move forward with the following recommendations during the special session beginning April 28, 2020. These are immediate needs, but it is not possible to implement them for the 11th Congressional District Republican Second Primary and the new Columbus County Commissioner District 2 Republican Primary. Because of deadlines associated with the 2020 General Election, however, there is an immediate need to prepare for a coronavirus response:
• Establish online portal for absentee requests. This change would need to be made immediately due to the time required to acquire software, modify the State Board of Elections’ Statewide Elections Information Management System (SEIMS), and inform the public of the change prior to the start of absentee voting on September 4, 2020.
 We have received a quote from a vendor who supports numerous states and jurisdictions throughout the country. Based upon the volume projected for North Carolina, the annual license fee is $398,000 with a pre-election configuration fee of $25,950.
• Establish a fund to pay for postage for outbound and returned absentee ballots. We would request any funds be allocated as soon as possible to allow county boards of elections to budget for the election and in light of the budgetary reductions they are already being requested to make at the county level.
 The estimate for prepaid postage for the November general election, based upon 65% of registered voters participating in the election and 40% of those participating by mail, would be $3,640,000, at a cost of approximately $2 total per ballot (7 million voters x 65% overall participation=4,550,000 participating voters with 40% participating by mail=1,820,000 by mail ballots). This prepaid cost would include both the outgoing and incoming postage cost. Envelope size and weight may affect this estimate.
• Modify one-stop site and hour requirements. We recommend any changes be made as soon as possible to allow time for county boards of elections to locate and procure appropriate sites, a process that has already begun for the November 3 election.
 We expect a change would reduce costs for the county boards of elections. Due to the uncertainty of any possible change, it is not currently possible to estimate the savings.
We appreciate the dialogue we have had with many of you through this process and uncharted waters. Our goal is to “prepare for the worst” in hopes that we are overly prepared. Elections administration, as we have discussed, is a planning and logistics operation. The bulk of an election is executed before voting ever begins, which is why we come before you now. If we can secure the funds needed and know any legislative changes that may occur, then we can better prepare and deliver successful elections under normal conditions or in times of crisis.
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I stand ready to answer your questions or provide any other information that may be useful in consideration of these funding requests and recommendations. Sincerely, Karen Brinson Bell Executive Director State Board of Elections
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EXHIBIT 3 Letter from Board of Elections Members in Congressional District 11 to General Assembly
Leaders et al. (Apr. 29, 2020)
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CONGRESSIONAL DISTRICT 11 BOARDS OF ELECTIONS c/o Kathy Ray, Madison County Board of Elections Marshall, NC 28753 Phone: 828-649-3731 Email: madison.boe@madisoncountync.gov
April 27, 2020
Dear General Assembly Leaders, Election Committee Members, and Western NC Legislators,
We write as Republican and Democratic members of the county boards of elections in Congressional District 11 with an urgent request.
As we prepare to administer the runoff election (Second Primary) on June 23, we are learning that many of our regular poll workers are reluctant to serve. A large percent of them are elderly and are genuinely concerned about their health. In addition, some of our polling places are now being used by other agencies for emergency purposes. If we must change or combine polling places because of a poll worker shortage or a need for alternative locations, we must place a public notice in the media by May 9th and must mail notices to all affected voters by May 23rd.
Under current law, a majority of poll workers must reside in the precinct where they serve on Election Day. State Board of Elections Director Karen Brinson Bell has requested a change in state law to allow county boards to recruit and train poll workers from across the county. This change would significantly help us staff polling places in these challenging times. Because we must make decisions very soon, we encourage you to include this change in the actions you take when you reconvene next week.
We are committed to administering secure and fair elections, and we would be happy to provide our insights about other changes that may be needed in the future. Our county directors are also valuable resources for conducting safe and secure elections at the county level. The State Board of Elections has provided a number of suggestions that address important issues at the state level, and many of them are also time sensitive, including matching state funds to release federal dollars for enhanced security and COVID-19 related election expenses.
We appreciate your leadership and look forward to working with you.
Sincerely,
Board of Elections Members in Congressional District 11 (alphabetical order of signers)
Pat Ackerman, Cherokee County Eddie Adams, Cherokee County Craig Allen, Cherokee County Jerry Anderson, Clay County Brian Ball, Madison County Gary Boone, Yancey County
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Sara Champion, Transylvania County Juanita Colvard, Graham County Lowell Crisp, Graham County Gail Criss, Clay County William Cutler, Henderson County Pamela Dashiell, Transylvania County Danny Davis, Haywood County Gary Dills, Macon County Billy Ditmore, Graham County Teresa Eller, Graham County Lynne Garrison, Macon County Jeff Gillette, Macon County Gary Kilpatrick, Cherokee County Ray Lewis, Madison County Frances Lockwood, Rutherford County Pat Margo, Clay County Charles McCurry, Yancey County Rusty McLean, Haywood County Lee McMinn, Transylvania County Charles Medd, Henderson County Joey Miller, Yancey County David Morrow, Transylvania County Elizabeth Norris, Haywood County June Ray, Haywood County Keith Rogers, Graham County Paul Rohs, Clay County Dyatt Smathers, Madison County Linda Smith, Rutherford County Sandy Solsbee, Cherokee County Howard Sorrells, Haywood County Christian Stolz, Henderson County Kathy Tinsley, Macon County Julia Tipton, Yancey County Sandra Tolley, Madison County John Vanhook, Macon County Michael Wainwright, Transylvania County Jerry Wallin, Madison County Brenda Wilson, Yancey County Keyla Youngblood-Stillwell, Clay County
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs, vs.

Civil Action No. 20-cv-457

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

FIRST AMENDED COMPLAINT 1

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Plaintiffs Democracy North Carolina, the League of Women Voters of North Carolina (together with Democracy North Carolina, the “Organizational Plaintiffs”), and Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Walter Hutchins, and Susan Schaffer, individuals (“Individual Plaintiffs,” together with the Organizational Plaintiffs, the “Plaintiffs”), bring this civil rights action under 42 U.S.C. § 1983, the First and Fourteenth Amendments, Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, for preliminary and permanent declaratory and injunctive relief against the Defendants 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; Ken Raymond, Jeff Carmon III, and David C. Black, all in their official capacities as Members of the State Board of Elections; Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections (together the “SBE Defendants”); Defendants the North Carolina Department of Transportation and J. Eric Boyette, in his official capacity as Secretary of the Department of Transportation (the “DOT Defendants”); and Defendants the North Carolina Department of Health and Human Services and Dr. Mandy Cohen, in her official capacity as Secretary of Health and Human Services (the “DHHS Defendants”). Plaintiffs allege as follows:
NATURE OF ACTION 1. The COVID-19 pandemic presents an unprecedented challenge to our nation. Caused by a novel coronavirus and transmitted by asymptomatic, otherwise-healthy
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individuals as well as the symptomatic, this disease threatens the health of millions of Americans, especially elderly people and those with pre-existing medical conditions. As infection and death rates continue to climb, the fallout from COVID-19 has severely strained health care systems, the economy, and all levels and branches of government.
2. This public health crisis has also endangered the machinery of our democracy by threatening massive disruptions in election administration, especially in a presidential election year that was on track for exceptionally high registration rates and turnout. Many states have already taken drastic measures to counteract the spread of COVID-19 and ensure that eligible voters can cast their ballots safely. North Carolina, however, has failed to act: it has not altered its statutory electoral scheme in order to allow for safe and accessible voting. As a result, millions of North Carolinians will likely either lose their right to vote or be forced to compromise their health in order to access the franchise.
3. At present, North Carolina’s election code imposes numerous restrictions— on voter registration, mail-in absentee ballots, in-person early voting, and Election Day administration—that, in light of the COVID-19 pandemic, unduly burden Plaintiffs’ right to vote in violation of the First and Fourteenth Amendments. With respect to voter registration, the pandemic has already caused registration rates to plummet in comparison with previous election years. North Carolina election code and registration practices can be altered to address the voter registration crisis with reasonable accommodations that make registering to vote easier and safer during this public health crisis. For example, North Carolina law requires voters to submit their registration applications at least 25 days prior to the election, or else, register in-person at an early voting site, therefore potentially
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exposing themselves or their families to infection via COVID-19. By preventing voters from registering in the three weeks leading up to the election, the 25-day registration requirement unconstitutionally burdens the right to vote. Voters cannot be required by their government to choose between registering to vote and preserving their health. Likewise, online voter registration opportunities could be easily expanded to allow voters to register to vote from the safety of their home.
4. Several aspects of North Carolina’s cumbersome absentee vote-by-mail regime are unconstitutional because they will require Plaintiffs to risk exposure to COVID19 and to violate public health social distancing requirements in order to successfully vote by mail. For example, North Carolina requires mail-in absentee voters to complete the ballot in the presence of two witnesses or a notary. To comply, the Individual Plaintiffs will need to expose themselves to individuals outside of their household, thereby risking their health. The two-witness requirement thus creates a severe and unjustified burden on Plaintiffs’ right to vote.
5. Finally, certain restrictions on the administration of in-person voting, both during the one-stop absentee voting period (known more commonly as “early voting” and so identified hereinafter) and on Election Day, will produce unsafe conditions for voters. For example, North Carolina requires each county to maintain uniform hours across all early voting sites, regardless of the capacity and demand at each site. This statutory requirement, recently added in June 2018, resulted in a significant reduction in early voting sites in the 2018 general election by inflating costs through the addition of unnecessary hours. This will likewise result in reduced sites and days for early voting in the upcoming
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2020 general election because counties will have to close numerous early voting sites to comply with the law and still stay within their budgets. On Election Day, moreover, a majority of poll workers must reside in the precinct where they serve. This “home precinct” requirement will exacerbate shortages of poll workers and lead to precinct consolidation. Both the uniform-hours requirement for early voting sites and the home-precinct requirement for Election Day poll workers will produce unsafe conditions by reducing the number of sites in which voters can cast an in-person vote, which will, in turn, result in long lines and large crowds, as seen in the recent Wisconsin primary election. Further, it is not possible for a state like North Carolina— where historically, the vast majority of voters choose to cast their ballot in person—to shift entirely to vote-by-mail methods in mere months. North Carolina simply lacks the infrastructure necessary to conduct an election predominantly by mail without overwhelming both county election administration systems and the local U.S. Postal Service infrastructure. Immediate steps must be taken to ensure that in-person voting opportunities are preserved and conducted in accordance with public health guidance.
6. In short, with its high transmission and mortality rates, COVID-19 poses a risk to all voters, especially those who could develop severe complications like some of the Individual Plaintiffs. The pandemic has already decimated voter registration rates and third-party voter registration initiatives, and makes it impossible for voters to comply safely with certain requirements for mail-in absentee voting, including the two-witness or notary requirement. In addition, election officials anticipate severe shortages of poll workers, who justifiably fear contracting the disease, resulting in fewer polling sites. A number of states’
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election officials, including in North Carolina, have already felt compelled to postpone primary and other elections by weeks or months in the face of this unprecedented public health emergency.
7. As of the filing of this complaint, Defendants have failed to implement any election-related measures to mitigate the impact of the COVID-19 crisis on North Carolina’s upcoming general election and safeguard the voting rights of countless eligible North Carolina voters.1 This failure to act, leaving the current electoral structure in place, imposes an undue burden and an unconstitutional condition on the right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution and a violation of procedural due process. In addition, the State’s failure to accommodate the needs of highrisk voters and others violates the ADA and the Rehabilitation Act.
8. Judicial intervention is warranted now, in advance of the 2020 general election, to ensure that the State has adequate time to implement the measures necessary to ensure that the right to vote may be exercised safely during this global pandemic. North Carolina law sets forth an inflexible calendar of pre-election administrative steps and milestones. For example, mail-in absentee ballots, their container-return envelopes with witness certifications and signature blocks, and instruction sheets must be available for use 60 days in advance of a statewide general election and 50 days in advance of all other
1 Plaintiffs are aware of at least two bills that have been filed purporting to address a small number of the issues identified in this litigation. Plaintiffs have no basis to believe that either bill will be enacted into law, certainly not in a timely-enough fashion, and even if they were, those bills are entirely inadequate to address the constitutional violations implicated in this lawsuit.
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elections, which in this case would be September 4, 2020. See N.C. Gen. Stat. §§ 163227.10(a), 163-229(b), 163-229(c). This means that all the text and design for mail-in absentee ballots must be finalized well in advance of the 60th or 50th day before an election such that these materials can be timely printed, delivered, and distributed to voters. Moreover, in “emphasiz[ing] that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the Supreme Court has suggested that challenges to a state’s election administration should be brought as soon as possible. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).
9. Election administration plans for the June 23, 2020 Republican second primary in Congressional District 112 have unfortunately been irreversibly set in motion. But it is not too late to safeguard the right to vote in November’s general election, when the pandemic is expected to resurge and once again threaten the functioning of our democracy.
JURISDICTION AND VENUE 10. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the U.S. Constitution and the laws of the United States and seeks equitable and other relief for the deprivation of constitutional and federal statutory rights under color of state law.
2 N.C. State Bd. of Elections, Emergency Exec. Order (Mar. 20, 2020), https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/Orders/Executive% 20Director%20Orders/Order_2020-03-20%20.pdf (rescheduling the Republican second primary in Congressional District 11 from May 12, 2020, to June 23, 2020).
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11. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920.
12. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
13. Venue is appropriate in the Middle District of North Carolina, under 28 U.S.C. § 1391(b)(1).
PARTIES Plaintiffs
14. Plaintiff Democracy North Carolina (“Democracy NC”) is a nonpartisan, nonprofit organization dedicated to increasing voter access and participation and reducing the corrupting role of money in politics through research, organizing, and advocacy. Democracy NC’s volunteers, who are registered North Carolina voters across every region of the state, form grassroots coalitions and are advocates in communities throughout the state, including Wake County, Edgecombe and Nash Counties (the “Twin Counties”), Alamance County, Mecklenburg County, Fayetteville, Wilmington, Winston-Salem, Asheville, New Bern, Salisbury and Greenville. Democracy NC works for pro-democracy reforms that strengthen the enforcement of election laws, protect voting rights, and improve government accountability and ethics. Democracy NC engages in substantial election protection efforts to ensure that voters are able to access the ballot, and spends substantial time and effort producing voter guides to educate voters about the candidates that will be on their ballots. Democracy NC advocates spend thousands of hours fighting for more early voting sites and times to ensure that all voters have easy access to the franchise. In previous
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elections, Democracy NC has also run rides-to-the-polls programs to ensure that voters who lacked transportation and could not or did not want to use mail-in absentee voting could nonetheless cast a ballot. Through original research, policy advocacy, grassroots organizing, civic engagement, and leadership training, Democracy NC seeks to achieve a fair and representative political system and advance a just and equitable North Carolina.
15. Plaintiff the League of Women Voters of North Carolina (“LWVNC”) is a nonpartisan community-based organization, formed in 1920, immediately after the enactment of the Nineteenth Amendment to the U.S. Constitution granting women's suffrage. The LWVNC is dedicated to encouraging its members and the people of North Carolina to exercise their right to vote as protected by the U.S. Constitution and the Voting Rights Act of 1965. The LWVNC’s mission is to promote political responsibility through informed and active participation in government and to act on selected governmental issues. The LWVNC impacts public policies, promotes citizen education, and makes democracy work by, among other things, removing unnecessary barriers to full participation in the electoral process. Currently the LWVNC has 17 local leagues and over 1,912 members, each of whom, on information and belief, is a registered voter in North Carolina. The LWVNC is affiliated with the League of Women Voters of the United States, which was also founded in 1920. The LWVNC began as an organization focused on training women voters, and has evolved into an organization concerned with educating, advocating for, and empowering all North Carolinians. With members in almost every county in the state, the LWVNC’s local leagues are engaged in numerous activities, including hosting public forums and open discussions on important issues to the
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community. Individual League members invest substantial time and effort in voter training and civic engagement activities, such as voter registration assistance and get-out-the-vote (GOTV) efforts leading up to elections, including during the early voting period. The LWVNC has developed a First Time Voter Engagement Program, which partners with local election boards and schools to encourage young voters to register to vote. The LWVNC also devotes substantial time and effort to ensuring that government at every level works as effectively and as fairly as possible in implementing voting regulations and procedures. To do so, the LWVNC advocates to make elections more transparent, to support a strong and diverse judiciary, and to urge for appropriate government oversight.
16. Plaintiff Donna Permar is a U.S. Citizen and a Durham County resident who is completely blind and lives with her spouse who is also completely blind. Ms. Permar is a registered voter who is eligible to vote in the November 2020 general election. Ms. Permar only feels confident voting in-person and thus relies on polling places being open and accessible by public transportation. Ms. Permar must utilize an ADA-compliant machine in order to vote, because she cannot fill out an absentee ballot with confidence or privacy.
17. Plaintiff John P. Clark is a U.S. citizen and a resident of the town of Apex in Wake County, North Carolina. He is 79 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. He has severe chronic obstructive pulmonary disease (“COPD”) and has lived with this disease, which severely limits his activities, for the last 12 years. Whenever he is active at all, walking around or working in the yard, he carries an oxygen tank. He can walk only two blocks, even with
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oxygen. He has also become more susceptible to exacerbated bouts of pneumonia, contracting it about four times in the last six years. The most recent episode was in January 2020, which has caused a further deterioration of his respiratory condition. COPD makes him more vulnerable to severe complications or even death from COVID-19 and, therefore, it is too high a risk for him to vote in person. It is a necessity that he vote by absentee ballot in the November general election. To avoid any risk of contracting COVID-19, Mr. Clark has been quarantined along with his wife for approximately the last eight weeks. He lives with his wife, and the only people who have entered their house during the lockdown have been three service people whom he completely avoids. He and his wife never leave their property except for necessary medical appointments, short walks, and occasional drives including a weekly trip to the grocery store, during which Mr. Clark stays in the vehicle. He has voted in every presidential election since 1968, and votes regularly in state and local elections. He wants to vote in the November 2020 general election and has already applied for his mail-in absentee ballot. His wife could serve as one witness for his mail-in absentee ballot, but Mr. Clark could not safely obtain a second witness, given his COPD and the risk COVID-19 poses to Mr. Clark’s life. Each person he interacts with poses an additional, serious risk to his life. Given the two-witness-signature requirement, he does not know how he can safely cast a ballot by mail, and he cannot safely vote in person.
18. Margaret B. Cates is a U.S. citizen and a resident of the Town of Faison in Duplin County, North Carolina. She is 85 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. She lives alone and has had chronic fatigue syndrome for the last 27 years since 1993. This is a severely debilitating
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disease and has severely curtailed Ms. Cates’ ability to move about and be active. Today, she is in poor health, having suffered several falls recently and a urinary tract infection that she has been fighting for a year. As a result, she has been weak, using a walker in the house, and bedridden for twelve hours at night and for two in the afternoon. Ms. Cates has not left her house in three months, except to go to a doctor's appointment right before March and before the social distancing guidelines were put in place. She has voted in every presidential election since 1956, and also votes in many state and local elections. She wants to vote in the November 2020 general election, and she has never voted by mail. Under the current North Carolina election procedures, there is no way for Ms. Cates to request an absentee ballot online. If this option were available, with some assistance, she could and would request a ballot that way. She would also be able to request a ballot by phone call. Her nearest family member is her son, who lives a two-hour drive away in Southern Pines, North Carolina. Without an online or phone option to request an absentee ballot, Ms. Cates cannot request an absentee ballot on her own and would depend on others to mail or otherwise provide it to her. As to the two-witness requirement, Ms. Cates’ assistant—who comes to the house to help with daily tasks and is the only person to enter Ms. Cates’ home—could serve as one witness for her absentee ballot, but Ms. Cates cannot take the additional risk of securing a second witness given her poor health and debilitated state. Each additional person she interacts with poses a risk to her life. Voting in person is not an option for her, as it would pose too much of a risk to her health. Given the current rules for voting by mail, she does not know how she will safely cast a ballot by mail in the upcoming election.
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19. Lelia Bentley is a U.S. Citizen and a 62-year-old registered voter in Wilkesboro who lives on her own. She has been diagnosed with hypertension, which she controls through diet, exercise, and meditation. About once a year, Ms. Bentley develops a cold, which often progresses to include symptoms like sinus and chest congestion, a hacking cough, and shortness of breath. As a result of her medical history, she has been self-isolating at her home since March 10. Consistent with the Governor's stay-at-home order, she does not leave her home unless absolutely necessary. Since March 15, if she has needed groceries, she has ordered them online and had them delivered. Ms. Bentley does not know if she can satisfy the two-witness requirement in order to request and cast an absentee mail-in ballot. She has observed some of her neighbors breaking social distancing guidelines, including hosting social gatherings in their homes. Other neighbors are themselves self-isolating in order to protect elderly family members and she worries that, even if they would agree to be her witnesses, she could accidentally expose them to the virus, in spite of the precautions she has been taking. She does not know if her remaining neighbors have been taking appropriate precautions to prevent contracting the novel coronavirus, and therefore does not feel safe asking them to be witnesses. Even if she can obtain two witnesses, she does not know if she will risk contact with them in order to vote because she fears that it will lead her to contract COVID-19. Ms. Bentley will not vote in person because that would be too much of a risk to her health. She does not know what she will do if she cannot vote by mail.
20. Regina Whitney Edwards is a U.S. citizen and resident of Durham County. She is 30 years old and a registered North Carolina voter who is eligible to vote in the
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November 2020 general election. She is at high risk of developing severe illness from COVID-19 because she has a serious pre-existing medical condition, type 1 diabetes. She has had type 1 diabetes for 21 years. To protect her health from the impact of COVID-19, she has remained at home since mid-March and has not seen another person except her partner, whom she lives with. She is uncomfortable leaving her home or being in proximity to people other than her partner. She has voted in multiple elections in North Carolina. But for the threat of COVID-19, she would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, she is not willing to vote in person during the November 2020 general election, and instead would like to vote by mail-in absentee ballot to protect her health. Ms. Edwards cannot safely comply with North Carolina’s two-witness requirement. Her partner is available to serve as the first witness, but she is not willing to jeopardize her physical well-being by asking another person to serve as the second witness. Although she strongly wishes to vote in the November 2020 general election, she will not do so if the two-witness requirement remains in effect.
21. Robert K. Priddy II is a U.S. citizen and a resident of Brunswick County. He is a 70-year-old registered North Carolina voter who is eligible to vote in the November 2020 general election. He is at high risk of developing severe illness from the novel coronavirus because he has several serious pre-existing health conditions, and because of his age. In 2010, he received a kidney transplant. To ensure that his body does not reject the transplant, he takes medication that suppresses his immune system. The medication also causes borderline diabetic issues, so he receives treatment for diabetes. To protect his
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health, Mr. Priddy’s doctor has advised him to stay home and avoid contact with people outside his household. He has remained at home since mid-March. He relies on his wife to shop for groceries and run other errands. The only time he has gone outside since midMarch was to pick up prescriptions from a drive-thru pharmacy, during which he remained in his vehicle without interacting directly with the pharmacist. He is uncomfortable leaving his home or being in close proximity to people other than his wife. He has voted in numerous elections in North Carolina. But for the threat of COVID-19, he would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, he is not willing to vote in person in the November 2020 general election. He would like to vote by mail-in absentee ballot, but he cannot safely comply with North Carolina’s two-witness requirement. His wife is available to serve as the first witness, but he would have to jeopardize his physical well-being to ask another person to serve as the second witness. Although he strongly wishes to vote in the November 2020 general election, his health will be at risk if the two-witness requirement remains in effect, and he is not sure he will be able to vote.
22. Walter Hutchins is a U.S. citizen and a resident of Wilmington County. He is a 91-year-old registered North Carolina voter who is eligible to vote in the November 2020 general election. He is legally blind and lives in a nursing home. Due to his age, he is at very high risk of developing severe illness from COVID-19. To keep residents safe, the nursing home where he lives has been under lockdown since mid-March. No visitors, including family members, are allowed. Mr. Hutchins has voted in numerous elections in North Carolina. His wife, who does not live at the nursing home, has helped him fill out
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his ballot in previous elections. However, because of the lockdown and the COVID-19 pandemic, he has not seen her since mid-March and is uncertain whether she will be able to help him with filling out his ballot in the upcoming November election. He has only voted in-person for elections, and thus is unfamiliar with the absentee ballot process. The nursing home does not have procedures set up to assist voters who are blind. Furthermore, under North Carolina law, the nursing home staff cannot assist Walt fill out or submit an absentee ballot. He would like to vote in the upcoming election by mail, but is unable to request an absentee ballot through the mail because he is legally blind, and would like to do so by phone. Although he strongly wishes to vote in the November election, he is not sure how he will be able to if the restrictions on requesting absentee ballots and restrictions on nursing home assistance in filling out and submitting absentee ballots remain in effect.
23. Susan Schaffer is a U.S. citizen and a Durham County resident who volunteers in her community assisting eligible people with registering to vote, requesting absentee ballots, as well as completing their absentee ballots. In the past, Mrs. Schaffer has assisted voters at assisted living facilities and other locations that are now prohibited spaces for people seeking to assist voters with their absentee ballot request forms if they are not a near relative or a member of a multi-partisan assistance team (“MAT”). Mrs. Schaffer serves as an intermediary for many voters who are not familiar with the absentee ballot process or who otherwise are not eligible for assistance under the current state of the law as created by Senate Bill 683. Thus, these prohibitions severely burden the right to vote of all of the voters that Mrs. Schaffer would otherwise be able to assist and prevent her from providing that assistance as a volunteer for an organization that has among its core missions
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helping voters gain access to the ballot box, thereby impairing her fundamental First Amendment right of association and right to free speech. Defendants
24. Defendant North Carolina State Board of Elections is the agency responsible for the administration of the election laws of the State of North Carolina.
25. Defendant Damon Circosta is the Chair of the North Carolina State Board of Elections. Mr. Circosta is sued in his official capacity.
26. Stella Anderson is the Secretary of the North Carolina State Board of Elections. Ms. Anderson is sued in her official capacity.
27. Ken Raymond is a Member of the North Carolina State Board of Elections. Mr. Raymond is sued in his official capacity.
28. Jeff Carmon III is a Member of the North Carolina State Board of Elections. Mr. Carmon is sued in his official capacity.
29. David C. Black is a Member of the North Carolina State Board of Elections. Mr. Black is sued in his official capacity.
30. Defendant Karen Brinson Bell is the Executive Director of the North Carolina State Board of Elections. Ms. Brinson is sued in her official capacity.
31. The North Carolina Department of Transportation is the agency that implements the online voter registration system in the State of North Carolina.
32. J. Eric Boyette is the Secretary of the North Carolina Department of Transportation. Mr. Boyette is sued in his official capacity.
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33. The North Carolina Department of Health and Human Services is the agency

that administers online public benefits renewal in the State of North Carolina.

34. Dr. Mandy Cohen is the Secretary of the North Carolina Department of

Health and Human Services. Dr. Cohen is sued in her official capacity.

STATEMENT OF FACTS

I.

The COVID-19 Pandemic

A. COVID-19

35. In December 2019, health officials in mainland China detected a novel

coronavirus, SARS-CoV-2, which causes a disease known as COVID-19. On January 30,

2020, the World Health Organization (“WHO”) declared COVID-19 to be a Public Health

Emergency of International Concern. On March 11, 2020, the WHO declared that it had

become a pandemic. COVID-19 has now spread throughout the world, including to every

state in the United States and to every county in North Carolina.

36. The novel coronavirus that causes COVID-19 continues to spread at an

unprecedented pace around the world and within the United States. As of June 4, 2020,

there were 1,842,101 confirmed cases in the United States, and there have been 107,029

deaths nationwide.3 As of June 4, 2020, the North Carolina Department of Health and

3 Coronavirus Disease 2019 (COVID-19), Cases in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated June 4, 2020).
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Human Services had confirmed 31,966 positive cases of coronavirus and 960 deaths in North Carolina.4
37. COVID-19 appears to be much more contagious than other respiratory illnesses, such as influenza, SARS, or MERS, in significant part because of its capacity for asymptomatic transmission, and substantially more lethal than influenza.
38. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are at higher risk of severe complications and death from COVID-19 if they are 65 years old or older or have underlying health conditions and diseases, including chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity (body mass index (“BMI”) of 40 or higher), diabetes, chronic kidney disease undergoing dialysis, liver disease, and other health conditions that suppress immune systems like HIV/AIDS.5 The CDC’s website, relying upon research from the National Center for Immunization and Respiratory Diseases (“NCIRD”), Division of Viral Diseases, notes that immunocompromised individuals are at severe risk from COVID-19: “Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications.”6
4 COVID-19 Response, COVID-19 North Carolina Dashboard, NCDHHS, https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count (last updated June 4, 2020, at 10:45pm). 5 Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-athigher-risk.html (last updated May 14, 2020). 6 Id.
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39. Severe COVID-19 cases can cause a wide variety of secondary infections and pathologies, including but not limited to: pneumonia, acute respiratory distress syndrome, kidney failure, liver failure, strokes, heart attacks, cardiac inflammation, and gastrointestinal infections, among others.7 Furthermore, everyone is at some risk of severe complications and death from COVID-19, as health officials have recently associated COVID-19 with pulmonary embolism and stroke in younger patients without known risk factors8 and subsequent inflammatory disease in young children.9 In critical cases, some patients need to be intubated and put on a ventilator. Many critical care patients ultimately die. There is also evidence that individuals of color are dying of COVID-19 at a higher rate than other demographic groups.10
7 Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious rampage through the body, from brain to toes, SCIENCE (Apr. 17, 2020), https://www.sciencemag.org/news/2020/04/how-does-coronavirus-kill-clinicians-traceferocious-rampage-through-body-brain-toes. 8 Robert Glatter, M.D., Why is COVID-19 Coronavirus Causing Strokes in Young And Middle-Aged People?, FORBES (Apr. 27, 2020), https://www.forbes.com/sites/robertglatter/2020/04/27/why-is-covid-19-coronaviruscausing-strokes-in-young-and-middle-aged-people/#598e78fe34df. 9 Pam Belluck, New Inflammatory Condition in Children Probably Linked to Coronavirus, Study Finds, N. Y. TIMES (May 13, 2020), https://www.nytimes.com/2020/05/13/health/coronavirus-children-kawasaki-pmis.html. 10 Shelby Lin Erdman, Black Communities Account for Disproportionate Number of Covid-19 Deaths in the US, study finds, CNN (May 6, 2020), https://www.cnn.com/2020/05/05/health/coronavirus-african-americans-study/index.html.
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40. The CDC has warned that asymptomatic COVID-19-positive individuals can transmit the disease to others.11 Studies have confirmed this.12 As a result, individuals can
spread the disease for a week or more before realizing they are infected, facilitating rapid
contagion. Currently, there are no therapeutic treatments or vaccinations that have been
shown to significantly alter the trajectory of the COVID-19 outbreak. Leading
epidemiology experts anticipate that the pandemic will continue into fall and winter of
2020, and potentially well into 2021.
B. North Carolina’s Response to COVID-19
41. In North Carolina, Governor Cooper declared a State of Emergency on
March 10, 2020, which remains in effect as of the date of this filing. Within a week
thereafter, the Governor imposed social distancing guidelines for individuals and
businesses, closed public schools, and prohibited mass gatherings.
42. Governor Cooper has announced a three-phase plan to slowly ease
restrictions in North Carolina that will depend on whether North Carolina has successfully met key metrics regarding infection in the state.13 On May 5, 2020, Governor Cooper
11 Coronavirus 2019 (COVID-19), Prevent Getting Sick: How COVID-19 Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated Apr. 13, 2020). 12 Mary Van Beusekom, Studies profile lung changes in asymptomatic COVID-19, viral loads in patient samples, CTR. FOR INFECTIONS DISEASE RESEARCH & POL’Y, UNIV. OF MINN. (Feb. 25, 2020), http://www.cidrap.umn.edu/news-perspective/2020/02/studiesprofile-lung-changes-asymptomatic-covid-19-viral-loads-patient. 13 Press Release, North Carolina Office of the Governor, Governor Extends Stay At Home Order Through May 8, Plans Three Phase Lifting of Restrictions Based on Virus Trends (Apr. 23, 2020), https://governor.nc.gov/news/governor-extends-stay-home-orderthrough-may-8-plans-three-phase-lifting-restrictions-based.
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issued an executive order modifying North Carolina’s stay at home order and transitioning the state to “Phase 1” of slowly easing certain COVID-19 restrictions.14 This order advised North Carolinians to maintain six-feet social distancing from non-family or household members and encouraged high risk individuals to stay home and travel only for “absolutely essential purposes.”15 On May 20, 2020, the Governor issued an order moving North Carolina into “Phase 2” and superseding the Phase 1 order.16 The Phase 2 Order notes that “the risk of contracting and transmitting COVID-19 is higher in settings that are indoors, where air does not circulate freely and where people are less likely to maintain social distancing by staying six (6) feet apart,” and “very strongly encourage[s]” individuals at high risk of severe illness, including those 65 years or older and with underlying medical conditions, to stay home and travel only for “absolutely essential purposes.”17 It maintains the prior guidance that individuals maintain at least six feet of social distancing from other individuals, and requires businesses to limit occupancy and take other measures promoting social distancing. It also encourages individuals, including restaurant workers and personal care patrons, to wear face coverings. Mass gatherings of more than 10 people indoors and 25 people outdoors remain prohibited.18
14 Governor Roy Cooper, Exec. Order No. 138 (May 5, 2020), https://files.nc.gov/governor/documents/files/EO138-Phase-1.pdf. 15 Id. 16 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf. 17 Id. 18 Id.
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43. The Governor has also issued an executive order allowing non-profit corporations incorporated under the laws of the State of North Carolina to vote on matters by electronic balloting to “prevent members and directors from having to gather in a place, and thereby to promote social distancing and the mitigation of the spread of COVID-19.”19
44. The DHHS Defendants similarly recommend that individuals “put distance between yourself and other people” and advise, “[t]he very best evidence on reducing the spread is to maintain social distance and stay at home.”20
45. These measures are far from temporary and similar measures will likely be required for the remainder of 2020. Governor Cooper’s current Phase 2 executive order notes that “it may be necessary to reinstate certain restrictions eased by this Executive Order,”21 and, in any event, even the final “Phase 3” guidelines encourage social distancing and minimizing exposure, and any spike in infections may require tightening restrictions again.22
46. Epidemiologists and infectious disease specialists have already concluded that there will very likely be a COVID-19 resurgence in the United States this fall. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has
19 Governor Roy Cooper, Exec. Order. No. 136 (Apr. 24, 2020), https://files.nc.gov/governor/documents/files/EO136-Nonprofit-Corp.pdf. 20 COVID-19 Response, Individuals and Families, NCDHHS, https://www.ncdhhs.gov/divisions/public-health/covid19/individuals-and-families (last accessed May 19, 2020). 21 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf. 22 Id.
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said a second wave of infections in the United States is “inevitable.”23 South Korea,
Germany, and China are already seeing a resurgence of COVID-19 after loosening
restrictions in response to declining new COVID-19 cases. Pointing to the spread of
COVID-19 cases in southern hemisphere countries as those regions enter their winter
seasons, Dr. Fauci remarked, “And if, in fact, they have a substantial outbreak, it will be inevitable that we need to be prepared that we’ll get a cycle around the second time.”24 He concluded, “[W]e really need to be prepared for another cycle.”25 Furthermore, experts
from the Harvard T.H. Chan School of Public Health’s Center for Communicable Disease
Dynamics warned that, to avoid exceeding hospital critical care capacities, prolonged or intermittent social distancing may be necessary into 2022.26
C. Inadequacies in North Carolina’s Administration of the Upcoming 2020 General Election in Light of the COVID-19 Pandemic
47. The general election for all federal offices, including the presidential
election, will be held on November 3, 2020. COVID-19 will have an unprecedented impact
23 Miriam Berger et al., Drug trial shows modest benefits in treating coronavirus, Fauci says, WASH. POST (Apr. 20, 2020), https://www.washingtonpost.com/world/2020/04/29/coronavirus-latest-news/; see also Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, WHITE HOUSE (Mar. 25, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-briefing-11/. 24 Id. 25 Id. 26 Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period, SCIENCE (Apr. 14, 2020), https://science.sciencemag.org/content/early/2020/04/24/science.abb5793.
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on this upcoming election. Even before the COVID-19 pandemic, the Brookings Institution
predicted that “turnout in 2020 could break all records and test our election machinery as it has never been tested before.”27 Other experts also anticipate record-breaking turnout in the 2020 presidential election.28
48. North Carolina’s election laws and procedures are not designed to facilitate
safe, fair, and free elections during such a public health crisis, and the legislature has failed
to take action to remedy this situation. Given the rapidly spreading infection, North
Carolina’s current election laws will force voters to choose between exposing themselves
to severe risks to their health and exercising their constitutionally-protected right to vote.
49. The inadequacies of North Carolina’s election laws and procedures to
facilitate safe, free, and fair voting during a pandemic have not gone unnoticed by state and
county election officials. On March 26, 2020, Defendant Karen Brinson Bell, Executive
Director of the North Carolina State Board of Elections, wrote to Governor Cooper and the
leadership in North Carolina’s General Assembly requesting statutory changes to address
27 William A. Galston, What does high voter turnout tell us about the 2020 elections?, BROOKINGS INST. (Nov. 20, 2019), https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-high-voter-turnout-tell-usabout-the-2020-elections/. 28 See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. NEWS & WORLD REPORT (Sept. 20, 2019), https://www.usnews.com/news/elections/articles/2019-09-20/expertspredict-huge-turnout-in-2020; Nate Cohn, Huge Turnout Is Expected in 2020. So Which Party Would Benefit?, N.Y. TIMES (July 15, 2019), https://www.nytimes.com/2019/07/15/upshot/2020-election-turnout-analysis.html; Ronald Brownstein, Brace for a Voter-Turnout Tsunami, THE ATLANTIC (June 13, 2019), https://www.theatlantic.com/politics/archive/2019/06/2020-election-voter-turnout-couldbe-record-breaking/591607/.
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the impact of the COVID-19 pandemic on North Carolina’s upcoming elections.29 Among other recommendations, Defendant Bell requested (i) expanding options for voters to submit mail-in absentee ballot requests beyond the current mail-only option to enable requests by fax, email, and an online portal; (ii) establishing a fund to pay for postage for returned absentee ballots; (iii) reducing or eliminating the requirement that two witnesses sign an absentee mail container envelope in order for the ballot to be counted; (iv) lifting the requirement that a majority of Election Day poll workers reside in the precinct in which they work; and (v) lifting the uniformity requirement for early voting sites, days and hours. In a follow-up letter sent April 22, 2020, Defendant Bell emphasized that changes were required immediately during the April 28 legislative session of the General Assembly in order to be effective for North Carolina’s 2020 elections, including the 2020 general election.30
50. On April 27, 2020, dozens of county board of elections officials from eleven counties in North Carolina’s 11th Congressional District similarly issued an “urgent request” of North Carolina’s legislators to protect upcoming elections.31 They warned that regular poll workers were “reluctant to serve” during the pandemic given that a large percentage of them are elderly and at higher risk of severe complications and death from
29 Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1). 30 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2). 31 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 29, 2020) (Exhibit 3).
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COVID-19. These county officials requested that the legislators eliminate the requirement that a majority of poll workers reside in the precinct in which they serve and instead permit officials to recruit poll workers from anywhere in the entire county.
D. Voter Registration 51. Those eligible to vote in North Carolina can register in person, by mail, or, under some circumstances, online with the Department of Motor Vehicles (“DMV”), a division of Defendant the North Carolina Department of Transportation.32 To register by mail, eligible voters can download a voter registration form from the State Board of Elections website and then print, complete, and sign the form. Voters cannot submit this form electronically and they must mail in the original form with a wet-ink signature to the local county board of elections. See N.C. Gen. Stat. § 163-82.6(c). Voters must also include their drivers license number, non-driver identification card, or last four digits of their Social Security number. See N.C. Gen. Stat. § 163-230.2. 52. Alternatively, eligible voters who are existing DMV customers with a North Carolina drivers license or DMV-issued ID may register to vote online. See N.C. Gen. Stat. § 163-82.19. Until recently, this option required users to complete a DMV transaction, such as a license renewal or duplicate, at the same time.33 For this registration method, voter
32 See Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voters/Registering-to-Vote (last accessed May 20, 2020). 33 See Press Release, N.C. State Bd. of Elections, State Board, DMV Partner to Expand Online Voter Registration Service (Mar. 30, 2020), https://www.ncsbe.gov/PressReleases?udt_2226_param_detail=2195.
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registration applications must be submitted at least 25 days before the election in which the voter wishes to cast a ballot.34
53. Eligible voters may also register to vote through certain state agencies such as the Division of Social Services, Division of Public Health/WIC, and Division of Services for the Blind—all divisions of Defendant N.C. Department of Health and Human Services—among others. See N.C. Gen. Stat. §§ 163-82.20 – 82.23.35 Voters may submit forms to state agencies in lieu of mailing the application but must do so at least 25 days before the election in which they wish to vote, see N.C. Gen. Stat. § 163-82.20(g), (h), and may not do so online, even though those agencies, upon information and belief, possess “wet-ink” signatures for those customers.
54. Finally, voters may register in person at an early voting site using same-day registration with valid identification.36 This option is available up until the last Saturday before the election. See N.C. Gen. Stat. § 163-227.2(b)
55. The COVID-19 pandemic and resulting stay-at-home orders in North Carolina have significantly hindered third-party voter registration efforts for the 2020 general election. For example, Plaintiff LWVNC has had to cancel and otherwise reduce
34 See also Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voters/Registering-to-Vote (last visited May 19, 2020) (“Voter registration applications submitted [through the DMV] fewer than 25 days before an election will not be processed until after the election.”) 35 See NVRA Agency Forms, N.C. State Bd. of Elections, https://www.ncsbe.gov/VoterRegistration/NVRA (last accessed May 19, 2020). 36 One-Stop Early Voting; Same-Day Registration, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voting-Options/One-Stop-Early-Voting (last accessed May 20, 2020).
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its in-person voter registration initiatives, which typically comprise a significant portion of its voter registration efforts. Plaintiff Democracy NC has had to cancel its in-person voter education forums where voter registration forms are usually provided. Furthermore, voters’ ability to access the resources needed to register to vote—whether they be printers, postage, and access to a post-office box, state agency, county board of election or the DMV—have also been significantly hindered by the COVID-19 pandemic. As a result, voter registration is significantly lagging this year as compared to previous general election years. While January 2020 showed an approximately 162 percent increase in registrations compared to January 2016 (indicating increased intent to vote in this election cycle), April 2020 showed an approximately 50 percent decrease in voter registrations compared to April 2016.37
E. Absentee Vote-By-Mail 56. There will be a dramatic increase in the number and proportion of mail-in absentee ballots cast in the upcoming 2020 elections. While North Carolina permits all registered voters to cast an absentee ballot if they choose, see N.C. Gen. Stat. § 163-226(a), recently-enacted restrictions on absentee voting as well as other pre-existing provisions in the North Carolina election code impose undue burdens on voters wishing to cast mail-in absentee ballots in light of the current pandemic, and will force voters to choose whether to exercise their right to vote or protect their health.
37See N.C. State Bd. of Elections, NVRA Data (2008 to present), https://s3.amazonaws.com/dl.ncsbe.gov/NVRA/nvra_stats_all.txt. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data-Info/ElectionResults-Data and navigating to “FTP Site”  “NVRA”  “NVRA_stats_all.txt”.
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57. Wisconsin’s recent election, which was held after its governor declared state
of emergency in response to COVID-19, shows that there will likely be an increased use of mail-in ballots in North Carolina. Like North Carolina, Wisconsin does not require an
excuse to vote by mail. In its April 7, 2020 spring election, nearly 1.3 million registered Wisconsin voters requested a mail-in ballot,38 the most in the state’s history. Of the 1.6 million voters who cast ballots in the spring election,39 more than 70 percent, that is 1.1 million, voted by mail-in absentee ballot.40 This was a dramatic increase from the
percentage of mail-in absentee ballots cast in the 2016 presidential primary election, in which mail-in absentee ballots made up just 11.8 percent of total ballots cast.41
58. Defendant North Carolina State Board of Elections anticipates a similar dramatic increase in mail-in absentee voting in 2020 to 30 to 40 percent,42 and thus needs
to prepare for such an increase. As it currently stands, North Carolina’s election code
imposes severe burdens to voters who need to cast absentee mail-in ballots, in light of the
current pandemic, and to the expected influx of voters wishing to vote by mail for the first time.
38 Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary, WIS. ELECTIONS COMM’N (Apr. 16, 2020), https://elections.wi.gov/node/6856. 39 Unofficial Spring Election Turnout - 34.3 % - 4/14/2020, WIS. ELECTIONS COMM’N, https://elections.wi.gov/blog (last accessed May 21, 2020). 40 Updated municipal absentee ballot data, WIS. ELECTIONS COMM’N, https://elections.wi.gov/blog (last updated 4/13/20 9:35am). 41 Absentee Ballot Requests for April 7 Exceed 1 million - COVID-19, WIS. ELECTIONS COMM’N (Apr. 1, 2020), https://elections.wi.gov/node/6802. 42 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2).
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1. Senate Bill 683 59. North Carolina law has permitted all eligible citizens to vote by mail in all federal and state elections since 2001. See N.C. Gen. Stat. § 163-226(a). Voters must submit a completed State Absentee Ballot Request Form to their county board of elections in order to receive an absentee ballot. N.C. Gen. Stat. § 163-230.2(a). 60. In November 2019 North Carolina made it significantly more cumbersome for its voters to cast absentee ballots by mail by enacting Senate Bill 683. See An Act to Amend the Laws Governing Mail-In Absentee Ballots (“SB 683”), S.L. 2019-239, § 1 (Nov. 6, 2019).43 Among other provisions, SB 683 imposes restrictions on who can assist voters with completing mail-in absentee ballot request forms. See S.B. 683 § 1.3(a) (amending N.C. Gen. Stat. § 163-230.2(e), (e1)). Requests are invalid if “completed partially or in whole, or signed by anyone other than the voter, or the voter’s near relative or verifiable legal guardian.” N.C. Gen. Stat. § 163-230.2 (e)(2). Members of multi-partisan teams (“MATs”) trained and authorized by county boards of elections may assist in completion of the request, id., but in certain North Carolina counties, the availability of MATs has been inadequate. Voters requiring assistance to complete the written request form due to blindness, disability, or inability to read or write may request another person if “there is not a near relative or legal guardian available to assist that voter.” N.C. Gen. Stat. § 163-230.2(e1).
43 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2019239.pdf.
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61. There are also restrictions on who may help return a completed absentee ballot request. Under N.C. Gen. Stat. § 163-230.2(c), the completed request form may only be delivered to the county board of elections by the voter, the voter’s near relative or verifiable legal guardian, or a MAT team member.
62. Unlike for completing an absentee ballot request form, there is no exception in the statute for a voter who needs assistance with returning the request form by reason of their blindness, disability, or inability to read or write. See N.C. Gen. Stat. § 163230.2(e)(4).
63. There are also no such exceptions to the similar restrictions for marking, completion and submission of mail-in absentee ballots. People, who by reason of their blindness, disability, or inability to read or write, require assistance are still restricted to the voter’s near relative or verifiable legal guardian, or a MAT team member. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-231(b)(1).
64. By doing so, SB 683 has effectively banned organizations like LWVNC and individuals like Plaintiff Schaffer from assisting voters with requesting absentee ballots. This is especially damaging where, as here, the State Board expects a dramatic increase in voting-by-mail, indicating that many individuals will be seeking to vote by mail for the first time. Without assistance by organizations like LWVNC or individuals like Plaintiff Schaffer, which was available up until SB 683’s passage in late 2019, many of these voters will lack needed assistance to navigating the ballot request process during a time when that assistance is crucial to ensuring individuals can vote safely.
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65. SB 683 also narrowed the list of identification voters could submit with their request form to only a North Carolina driver’s license number, special identification card number, or the last four digits of his or her Social Security number. See N.C. Gen. Stat. § 163-230.2(a)(4), (f). There is no provision allowing individuals to submit alternative proof of residency such as those documents provided for under the Help America Vote Act (“HAVA”), i.e., a current utility bill, bank statement, government check, paycheck, or other government document showing the name and address of the voter. Defendant Executive Director Bell requested in her March 26, 2020 letter that North Carolina permit voters to submit this alternative documentation with their absentee request forms, noting that the State Board had received “multiple reports from county boards of elections and from voters that, without this option, some voters are no longer able to request an absentee ballot, and that “[a]llowing this option will make it easier for those most at risk of contracting COVID19 to vote absentee by mail.”44
2. Two-Witness Requirement 66. North Carolina’s two-witness or notary requirement for mail-in absentee voting will also force voters to decide whether to break quarantine or violate socialdistancing directives, and thereby risk their own health, in order to successfully cast a ballot this year. Among other requirements, North Carolina election law requires that an
44 See Letter from Karen Brinson Bell, Executive Director, to Governor Roy Cooper et. al. (Mar. 26, 2020), https://s3.amazonaws.com/dl.ncsbe.gov/sboe/SBE%20Legislative%20Recommendations _COVID-19.pdf.
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individual voting an absentee ballot do so “[i]n the presence of two persons who are at least
18 years of age.” N.C. Gen. Stat. § 163-231(a).45 The only alternative is to obtain the
signature of a notary public. Id. However, during the current pandemic a notary public is
not a viable option for many voters because many businesses are closed and the recent
exclusion of absentee ballots from the recent COVID response bill allowing for electronic
notaries. See An Act to Provide Aid to North Carolinians in Response to the Coronavirus
Disease (COVID-19) Crisis, S.L. 2020-3 § 4.1(c) (May 4, 2020).46 Accordingly, even when
they do have access to a notary public, individuals again would have to breach social-
distancing measures and leave their home to have their ballot notarized.
67. North Carolina is one of just twelve states that requires a witness or notary
to observe the voter casting the absentee ballot and then sign the ballot’s certificate
envelope and one of just three states that requires two witnesses.47 In a time when social
45 Other restrictions include prohibiting any candidate for nomination or election from serving as a witness unless the voter is the candidate’s near relative, prohibiting owners, managers, directors, employees of any hospital, clinic, nursing home, or rest home from witnessing for a voter who is a patient or resident, and certain office-holders. See N.C. Gen. Stat. §§ 163-226.3(a)(4) and 163-237(b)(1). 46 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL20203.pdf (at PDF p. 31) (“Nothing in this section shall apply to any notarization under Article 20 of Chapter 163 of the General Statutes [regarding absentee ballots].”). 47 See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. Ann. § 18:1306(2)(a); Minn. Stat. §§ 203B.07, 203B.121; Minn. R. 8210.2450; Miss. Code Ann. §§ 23-15-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C. Gen. Stat. § 163-231; Okla. Stat. tit. 26, § 14-108; 17 R.I. Gen. Laws § 1720-23; S.C. Code Ann. §§ 7-15-220, 7-15-230; Va. Code Ann. §§ 24.2-706, 24.2707; Wis. Stat. § 6.87(4)(b)1; see also Jay Chaudhury, NC absentee ballots require 2 witnesses. Is that unique?, POLITIFACT (Apr. 23, 2020), https://www.politifact.com/factchecks/2020/apr/23/jay-chaudhuri/nc-absentee-ballotsrequire-2-witnesses-unique/; Voting Outside the Polling Place: Absentee, All-Mail and
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distancing is a crucial measure to protect public health, the two-witness requirement unconstitutionally forces individuals to choose between voting through an absentee mailin ballot that will count or protecting their health, and constitutes an insurmountable hurdle for many eligible North Carolina voters seeking to protect their health and the health of their family or co-habitants. Those eligible North Carolina voters under self-quarantine, particularly those at risk of severe complications and death from COVID-19, who live alone or who do not have two other adults in their household, will be unable to safely satisfy the state’s double-witness signature requirement and cast a mail-in absentee ballot. This is no small number: According to the U.S. Census, there are 1,113,548 single-member households in North Carolina.48 Of those single-member households, 416,121, or 37 percent, are occupied by someone 65 or older.49
68. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley are all eligible North Carolina voters who need to vote by mail-in absentee ballot to safeguard their lives and the health and well-being of their family members or co-habitants. Mr. Clark, who is 79 years old, has severe COPD that puts him at serious risk of severe complications and even death from COVID-19. After several bouts of pneumonia in recent years, Mr. Clark has been
other Voting at Home Options, NAT’L CONF. OF STATE LEGIS. (Apr. 14, 2020), https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx (select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”). 48 Table S2501, Occupancy Characteristics, American Community Survey, U.S. CENSUS BUREAU, https://data.census.gov/cedsci/table?q=S2501&g=0400000US37&tid=ACSST5Y2018.S2 501. 49 Id.
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quarantining himself at home. Ms. Cates, who is 85 years old, lives with chronic fatigue syndrome, a debilitating disease that makes it hard for her to engage in normal daily activities and has suffered a urinary tract infection and fallen several times over the last year. Since the social distancing guidelines were put in place, Ms. Cates has not left her home, and only allows an assistant to visit and help with household chores while carefully maintaining distance from Ms. Cates. Ms. Edwards has a pre-existing medical condition, type 1 diabetes, which puts her at high risk for developing severe illness from COVID-19. In light of the risks to her health, she is uncomfortable leaving her home or being in close proximity to people other than her partner. Mr. Priddy’s doctor has informed him that he is at high risk of developing severe illness from the novel coronavirus due to his age and serious pre-existing health conditions, including his use of medication that suppresses his immune system related to a kidney transplant in 2010, and treatment for diabetes. To protect his health, Mr. Priddy’s doctor has advised him to stay at home and avoid contact with people other than his wife. Ms. Bentley has been diagnosed with hypertension and has a history of developing cold symptoms attacking her lungs, also putting her at risk of severe illness from COVID-19. As a result, she has been self-isolating in her home since March 10 to avoid contracting novel coronavirus. Ms. Bentley lives alone and does not have any family nearby and does not feel safe asking her neighbors to serve as witnesses because she has observed some breaking the Governor’s stay-at-home order. Other neighbors are themselves self-isolating to protect vulnerable family members, and Ms. Bentley does not know what precautions her remaining neighbors are taking. Accordingly, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley have no way to safely comply with the two-witness
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requirement and are therefore effectively disenfranchised by N.C. Gen. Stat. § 163-231(a). Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley will be forced to choose between exercising their fundamental right to vote or running the risk of contracting and spreading COVID-19 and further worsening the pandemic in North Carolina.
3. Other North Carolina Election Laws and Procedures that Must Be Adjusted to Protect the Right to Vote By Mail During This Public Health Crisis
69. In addition to the restrictions imposed by SB 683 and the two-witness requirement, North Carolina’s election laws lack crucial mechanisms for guaranteeing that eligible individuals in North Carolina will be able to cast a mail-in absentee ballot that is counted. As pointed out by Defendant Director Bell, North Carolina has no mechanism for requesting absentee ballots by phone, email, or online. Accordingly, voters wishing to request an absentee mail-in ballot must either have the necessary equipment at home (printer, envelope, postage, and access to mail pick-up), violate social-distancing directives and guidelines and put themselves at severe risk by seeking these items outside the home, or rely on others to provide them with a form. By contrast, at least twelve states allowed voters to request an absentee ballot online, and an additional three allowed voters to submit a scanned application via email.50
70. Furthermore, North Carolina voters need a fail-safe for absentee voting to prevent the unlawful denial of the right to vote given North Carolina’s lack of experience
50 VOPP: Table 6: States With Web-Based and Online Absentee Ballot Applications, NAT’L CONF. OF STATE LEGIS. (May 4, 2020), https://www.ncsl.org/research/electionsand-campaigns/vopp-table-6-states-with-web-based-and-online-absentee-ballotapplications.aspx.
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with the anticipated volume of mail-in absentee ballot requests for the November general election. This is especially critical given the recent evidence out of Wisconsin and Ohio that state and local election officials, as well as the U.S. Postal Service, are failing to deliver thousands of absentee ballots to voters in the mail.51 Those voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day—i.e., within a certain number of days of the election of their request and/or within a certain number of days of the request—will be disenfranchised unless they are permitted to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.52 FWABs are already offered to overseas civilians, who can download them and print them for use, but domestic civilian absentee voters are denied the same option, even when their regular mail-in absentee ballot does not arrive in time or at all.
71. Additionally, voters without access to postage and mail pick-up must also violate social-distancing directives and guidelines to submit mail-in absentee ballots. To successfully vote by mail, voters must mail their ballots such that they are postmarked on or before Election Day and delivered no later than 5:00 pm on Election Day, or return their voted ballots to the county board of elections (not a polling location) no later than 5:00 pm on Election Day. However, there is currently no provision in North Carolina law for
51 See, e.g., Carrie Levine, Ohio’s Mail-in Ballot Brouhaha: A Sign of Coming Trouble? THE CTR. FOR PUBLIC INTEGRITY (Apr. 28, 2020), https://publicintegrity.org/politics/elections/ohios-mail-in-ballot-brouhaha-a-sign-ofcoming-trouble/. 52 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.
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contactless drop boxes for absentee ballots, which would allow voters to avoid severe delays with the U.S. Postal Service, reduce the overall burden on the U.S. Postal Service, and allow those voters with their own vehicles to submit absentee ballots without requiring contact with anyone to obtain required postage or deliver in-person to the county board of elections.
72. Finally, there is no adequate statewide-mandated procedure in North Carolina for voters to cure deficient absentee ballot requests or the ballots themselves. In the March 2020 North Carolina primary, almost 15 percent of submitted absentee mail-in ballots were rejected.53 This number was even higher for voters of color, with 19 percent of mail-in ballots submitted by black voters rejected and almost 16 percent of mail-in ballots submitted by Latinx voters rejected.54 In light of the anticipated dramatic increase in the use of absentee ballots and the new restrictions under SB 683 on who may assist a voter to request an absentee ballot, there is a heightened risk that voters new to mail-in absentee voting will fail to follow the proper procedures without being afforded any opportunity to cure any deficiencies. As it stands, North Carolina’s election code risks disenfranchising vast numbers of voters attempting to submit mail-in absentee ballots.
53 See N.C. State Bd. of Elections, March 3, 2020 Absentee File, https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_03_03/absentee_20200303.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2020_03_03”  “absentee_20200303.zip”. The statistics generated from the absentee file do not include absentee by mail ballots that were either requested and not sent to the voter, or sent to the voter but not returned to the State Board of Elections. 54 Id.
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F. In-Person Voting
73. North Carolina’s electorate has expressed a clear preference for in-person
voting, with just 4 percent of voters casting mail-in absentee ballots in the 2016 general election.55 In general, preference for in-person voting holds disproportionately true for voters of color.56 There are a multitude of causes for this voter behavior pattern, but one
reason stems from the machinations used to steal votes from and defraud voters of color, among others.57 This means that North Carolina has not needed to, and indeed has not,
built the infrastructure to accommodate such a dramatic increase in voter demand for
absentee ballots without overwhelming current systems and causing mass disenfranchisement.58 Thus, it is critically important that voters be provided with ample
and as-safe-as-possible in-person voting options.
55 See N.C. State Bd. of Elections, November 8, 2016 History Statistics, https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_11_08/history_stats_20161108.zip This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2016_11_08”  “history_stats_20161108.zip”. 56 See David Becker, Mail-in ballots to avoid coronavirus? Yes, but here’s how to minimize chaos and unfairness, WASH. POST (Mar. 18, 2020), https://www.washingtonpost.com/opinions/2020/03/18/mail-in-ballots-avoidcoronavirus-yes-heres-how-minimize-chaos-unfairness/. 57 See generally, CAROL ANDERSON, ONE PERSON, NO VOTE: HOW VOTER SUPPRESSION IS DESTROYING OUR DEMOCRACY 19-22 (2018); STEVEN LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH, 1944-1969, Ch. 2 (1999). 58 See Ryan McCarthy, Whether the Ballot You Mail Is Counted May Depend On Where You Vote, PROPUBLICA (Apr. 30, 2020), https://www.propublica.org/article/whether-theballot-you-mail-is-counted-may-depend-on-where-you-vote.
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74. The CDC has issued guidance directing election officials to “reduce crowd size at polling stations” such as encouraging “early voting, where voter crowds may be smaller throughout the day,” which “minimizes the number of individuals a voter may come in contact with.”59 There are two provisions of North Carolina law that have already and will continue to hinder county boards in providing safe and adequate in-person voting options, and there are a number of other adjustments needed to ensure voter and poll worker safety.
1. Ensuring Adequate Number of Poll Workers 75. The first problematic provision is North Carolina’s requirement that a majority of poll workers reside in the precinct where they serve on Election Day. See N.C. Gen. Stat. § 163-42(b). Upon information and belief, as of May 14, 2020, eight county boards have requested to eliminate 64 precincts for the upcoming Congressional District 11 Second Republican Primary, impacting over 50,000 voters.60 Several of these county boards specifically cited a lack of poll workers as a reason for consolidated precincts. 76. As the pandemic persists into the fall, older poll workers will continue to withdraw in numbers sufficient to preclude the operation of countless polling places. In the 2014 general election, over 60 percent of North Carolina poll workers were 61 years of age
59 Coronavirus Disease 2019 (COVID-19), Recommendations for Election Polling Locations, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last updated: Mar. 27, 2020). 60 See https://dl.ncsbe.gov/index.html?prefix=Public_Records_Requests/June%2023%20Second %20Primary_temporary_precinct_transfers/.
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or older and, as a result, a significant portion of poll workers are in the 65-years-old-plus CDC risk category.61
77. Defendant Director Bell requested a change in state law to allow county boards to recruit and train poll workers from across the county,62 and county board members from Congressional District 11 similarly conveyed to North Carolina’s leadership that this change “would significantly help us staff polling places in these challenging times.”63
78. As North Carolina faces the withdrawal of countless poll workers statewide, this requirement will make it extremely difficult, if not impossible, to cure those critical shortages, prevent the closure of any polling places, and minimize the lines, crowds, and wait times at operational polling places. Long wait times and crowds unduly place vulnerable voters at a greater risk of contracting COVID-19.
2. Early Voting Flexibility 79. North Carolina must also change its hours-uniformity requirement for onestop, better known as “early voting,” sites. Currently, if any early voting site is open in a county, all early voting sites must be open and all sites other than the county board office
61 U.S. Election Assistance Comm’n, The 2014 EAC Election Administration and Voting Survey Comprehensive Report (Table 39), at 248, https://www.eac.gov/sites/default/files/eac_assets/1/1/2014_EAC_EAVS_Comprehensiv e_Report_508_Compliant.pdf. 62 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1). 63 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 27, 2020) (Exhibit 3).
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must be open 8:00 a.m. to 7:30 p.m. See N.C. Gen. Stat. § 163-227.6(c). As a result,
precincts are unable to provide flexible hours that accommodate the specific behaviors and
needs of the local voting population using that site. Precincts that might otherwise close
due to low anticipated activity must stay open, increasing costs for the entire county and causing precinct consolidation.64
80. After North Carolina imposed this requirement in June 2018 mandating uniform hours across all early voting sites within each county,65 the costs of implementing
this measure caused 43 counties to reduce the number of early voting sites in the 2018
general election compared to 2014 and over two thirds of counties to reduce weekend
hours. This disproportionately impacted black voters, who in 2018 made up approximately
22% of registered voters but 27% of those who cast ballots on the last Saturday of early voting.66
81. As discussed above, the anticipated shortage of poll workers will already
cause precinct consolidation in light of the global pandemic; the uniform hours requirement
64 See Blake Paterson, Bipartisan Furor as North Carolina Election Law Shrinks Early Voting Locations by Almost 20 Percent, PROPUBLICA (Sept. 24, 2018), https://www.propublica.org/article/bipartisan-furor-as-north-carolina-election-lawshrinks-early-voting-locations-by-almost-20-percent. 65See An Act to Set Hours for One-Stop Early Voting Sites, S.L. 2018-112 (June 15, 2018). As originally written, the statute removed the final Saturday of early voting beginning in 2018; this was subsequently postponed. 66 See Voting Rights and Election Administration in North Carolina: Field Hearing Before the Subcomm. on Elections of the H. Comm. on House Administration (Apr. 18, 2019) (testimony of Tomas Lopez, Exec. Dir., Democracy North Carolina), https://docs.house.gov/meetings/HA/HA08/20190418/109315/HHRG-116-HA08-WstateLopezT-20190418.pdf.
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will compound this, causing long lines and limited early voting sites during the early voting period when social distancing and reducing crowds is required for safe election administration. Individuals accustomed to early voting may very well be deterred by large crowding and the inherent heightened risk of infection; they will thus be forced to choose between risking their health to cast a ballot or foregoing their right to vote.
3. Information Regarding Precinct Consolidation 82. The State Board of Elections must also create a more accessible, centralized way in which voters and advocates can monitor precinct consolidation, and thereby advocate against harmful precinct consolidations. Currently, each county board of elections must give notice at least 45 days before the election when altering or consolidating precincts. See N.C. Gen. Stat. § 163-128(a). This notice must be posted in a generally circulated newspaper, posted on the door of the county courthouse and county board of elections, and mailed to the chairmen of every political party in the county. Id. Voters only need to be notified of changes in their particular precinct 30 days before an election. Id. In order to ensure that all voters have access to information about precinct consolidations necessitated by poll worker and/or site shortages, the State Board must provide that information in a centralized and accessible manner.
4. Personal Protective Equipment 83. Finally, there is currently no provision for counties to provide poll workers and voters with Personal Protective Equipment (“PPE”) for use during in-person voting, such as protective masks and gloves for poll workers and/or voters, separation shields, antiseptic wipes for equipment, and single-use pens. Effective use of PPE can dramatically
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reduce the likelihood of coronavirus transmission,67 and these measures are needed to adequately protect voters exercising their constitutional rights. In a May 15, 2020, meeting of the State Board of Elections, Defendant Director Bell stated that she had ordered PPE for those counties holding the second Republican primary election on June 23, 2020. The same provisions are required for the 2020 general election and, because of the state-wide nature and expected high turnout of this election, the SBE Defendants must take action immediately to ensure counties obtain adequate supplies. Without these measures, plaintiffs will be forced to choose between their right to vote and their right to bodily integrity.
CLAIMS COUNT ONE (All Defendants) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983) 84. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 85. Under the First and Fourteenth Amendments to the U.S. Constitution, any burden on the right to vote must be balanced against a state’s interest in that requirement. The Supreme Court has set forth the following test: [T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those
67 See, e.g., Zeynep Tufekci et al., The Real Reason To Wear A Mask, THE ATLANTIC (Apr. 22, 2020), https://www.theatlantic.com/health/archive/2020/04/dont-wear-maskyourself/610336/.
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rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also id., at 788–789, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992). 86. “A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition.” Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring); see also N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016) (because there were fewer early voting days, more voters would have to vote on Election Day, and “[t]ogether, these produce longer lines at the polls on Election Day, and absent out-of-precinct voting, prospective Election Day voters may wait in these longer lines only to discover that they have gone to the wrong precinct and are unable to travel to their correct precincts. Thus, cumulatively, the panoply of restrictions results in greater disenfranchisement than any of the law’s provisions individually.”). 87. Unless Plaintiffs are granted the relief requested, the right to vote and ability to freely associate of thousands of North Carolinians, including Individual Plaintiffs and Organizational Plaintiffs and their members, will be severely burdened (if not denied entirely) in the general election on November 3, 2020. Voter Registration 88. North Carolina’s requirement that voter registration applications be submitted at least 25 days before the election in which the voter wishes to cast a ballot
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under N.C. Gen. Stat. § 163-82.6(d), and the DMV’s requirement that those registering online do so at least 25 days before the election, is a severe burden on the right to vote in light of the COVID-19 pandemic, which has caused a dramatic decrease in voter registration rates. If a voter is not able to register at least 25 days before the election, then their only recourse is to do same-day registration at an early voting site, therefore potentially exposing themselves or their families to infection via COVID-19. See N.C. Gen. Stat. § 163-82.6(f). Furthermore, North Carolina’s failure to provide online voter registration through other state agencies, and specifically Defendant DHHS, places a severe burden on those individuals who need to register online but are not registered with the DMV.
89. Any administrative burden created by extending the voter registration deadline and/or expanding online voter registration through Defendant DHHS is “de minimis” and Defendants cannot put forth a compelling or legitimate state interest in keeping the deadline as such in face of the emergency situation that COVID-19 has created and will create. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 48394, at *14 (W.D. Wis. Mar. 20, 2020); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016); Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016).
90. Since DMV has only allowed voters to register online without requiring a DMV transaction at the same time since March 2020, voters are generally unaware of this option. The 25-day deadline will hinder LWVNC’s efforts to promote voter registration and require LWVNC and its members to divert significant resources. The lack of other
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online registration options offered by the DHHS Defendants further impedes LWVNC’s ability to educate and engage in its voter registration efforts, and frustrates its mission to ensure that all eligible voters can register safely during the COVID-19 pandemic.
91. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing this 25-day deadline or failing to provide online voter registration through Defendant DHHS that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given that North Carolina allows for same-day registration at one-stop early voting sites up until the Saturday before the election and has already implemented an online voter registration method through DMV for certain voters. Upon information and belief, Defendant DHHS possesses “wet-ink” signatures of its benefits recipients. Accordingly, any purported state interests in enforcing this 25-day deadline or failing to provide Defendant DHHS online voter registration are neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail assistance restrictions
92. North Carolina’s restrictions on who can assist voters with completing and returning mail-in absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2(c), (e), and (e1) is a severe burden on the fundamental right to vote and Plaintiff LWVNC, their members, and the voters they will assist during the upcoming election. This restriction impairs LWVNC’s efforts to help voters cast a ballot and limits the assistance LWVNC and its members can provide to voters wishing to vote by mail, during an election in which a voters are expected to vote by mail—and do so for the first time—in unprecedented numbers. Additionally, Plaintiff Schaffer’s First Amendment speech and associational
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right to help people cast a ballot is impaired given that under the current law she is not able to assist voters as she has in the past through various volunteer opportunities.
93. Likewise, the failure of North Carolina election code to allow individuals to submit alternative proof of residency such as HAVA documents with their absentee request forms unnecessarily impedes and restricts the ability of North Carolina voters to successfully request absentee ballots at a time when the need to request those ballots will be at an all-time high.
94. In the midst of this ongoing public health crisis, there is no state interest in favor of imposing and enforcing these restrictions that justifies the burden placed on the constitutional right to vote. Any purported state interest in enforcing the restriction on who can assist individuals in requesting absentee ballots is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail Witness Requirement
95. North Carolina’s two-witness or notary requirement for mail-in absentee voting pursuant to N.C. Gen. Stat. § 163-231(a) is a severe burden on Plaintiffs’ right to vote in light of the COVID-19 pandemic, because it will require voters, particularly voters at high risk of severe complications and death from COVID-19, to break their selfquarantine and violate social distancing directives at risk to their health. For example, Plaintiffs Clark, Edwards, and Priddy, who are each self-quarantined with one other person in their household, will be forced to choose between staying home and avoiding contact with people outside their households or seeking out another person to serve as a second witness despite guidance from the CDC and medical professionals to stay quarantined and
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limit contact with people outside their households. Plaintiffs Cates and Bentley, who are also self-isolated at home, live alone and do not have any family members nearby. Satisfying the two-witness requirement will require them to put themselves at risk of contracting COVID-19 in order to satisfy the two-witness certification requirement.
96. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing the two-witness or notary requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing the twowitness or notary requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail lack of fail-safe for absentee ballots that are not timely delivered to voters
97. North Carolina lacks any fail-safe option for mail-in absentee voters, if the state’s election administrators, as anticipated, cannot successfully deliver mail-in ballots on time to ten times as many absentee voters as usual. In order to prevent the wholesale and unlawful denial of the right to vote to voters who cannot risk voting in person at a polling site on or before Election Day, Defendants must afford voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day—i.e. within a certain number of days of the election of their request and/or within a certain number of days of the request—the option to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.68 Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend
68 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. 50
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to vote by mail-in absentee ballot, in order to safeguard their health. If, as expected, North Carolina’s state and local election officials and their staff cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these five Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted. Accordingly, in order to protect their right to vote, just like overseas civilian voters, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley must be permitted to cast FWABs, as a fail-safe option.
98. Particularly in the midst of this ongoing public health crisis, the failure to offer this standardized fail-safe option for mail-in absentee voters, which would completely deny the right to vote to countless domestic civilian absentee voters, cannot be justified by any legitimate or important state interest. This option is already afforded to overseas civilian voters; the exclusion of domestic, civilian voters, at least in the limited context where a voter does not receive a requested absentee ballot in the mail, is unreasonable and discriminatory. See Burdick, 504 U.S. at 434 (“But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”) (emphasis added, internal quotations omitted). Any purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail failure to provide other accommodations
99. North Carolina’s failure to provide mechanisms for requesting absentee ballots by phone, email, or online, its failure to provide contactless drop boxes for absentee
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ballots that would allow voters to submit their absentee ballots from their vehicles instead of violating social-distancing directives and guidelines, and its failure to provide a statewide-mandated procedure for voters to cure deficient absentee ballot requests are all, individually or in combination, severe restrictions on Plaintiffs’ right to vote and will require them to put their own health at risk in order to successfully vote by absentee ballot. See Clingman v. Beaver, 544 U.S. 581 607–08 (2005) (O’Connor, J., concurring); N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016). Plaintiff Cates cannot secure an absentee ballot request form on her own, though she could if online or phone request options were made available. LWVNC will also have to redirect a significant amount of its limited resources toward helping eligible voters to access absentee ballot request forms without a phone, email, or online option to request an absentee ballot.
100. Additionally, Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects. Furthermore, the lack of any uniform mechanism to cure will require LWVNC and Democracy NC to devote additional resources towards researching these various rules to help ensure the voters they assist have followed all procedures for requesting and filling out absentee ballots precisely, in addition to their general educational efforts.
101. In the midst of this ongoing public health crisis, there is no state interest in failing to provide these services that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given the numerous other states that do provide these services. Any
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purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Poll worker “home precinct” requirement
102. North Carolina’s requirement that a majority of poll workers reside in the precinct where they serve on Election Day pursuant to N.C. Gen. Stat. § 163-42(b) is a severe burden on Plaintiffs’ right to vote, as it will exacerbate a shortage of poll workers, force precinct consolidation and relocation, and create long lines and crowds on Election Day that contravene social distancing directives needed to protect Plaintiffs’ health.
103. This constitutes a severe burden on voters, particularly those who cannot wait in line for hours to vote. SBE Defendants are on notice that precinct consolidation due to lack of poll workers is likely, given the requests for precinct consolidation for the June 23, 2020 second Republican Primary, and their failure to prepare for this same eventuality in the November 3, 2020 general election will severely burden the rights of voters who rely on in-person voting. See Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969) (finding that the defendant’s failure to provide adequate voting facilities despite their foreknowledge of precinct consolidations deprived voters of their constitutional rights); see also League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (finding long lines and inadequate voting machines severely burdened Ohio voters’ right to vote).
104. Plaintiff Permar relies on polling sites being open in order to vote in-person given her disability and her need to use an ADA compliant voting machine. She also relies on polling places being located in places that are accessible by public transportation, which she uses to independently travel. Ms. Permar’s right to vote and others similarly situated
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would be severely burdened if precincts are consolidated in such a way as to force her or others similarly situated to travel to a polling place that is not accessible by public transportation or to wait in long lines exposing themselves to COVID-19 when they get to the polling place. Plaintiff LWVNC will also be required to divert resources to recruit poll workers, as well as in its voter education efforts to alert its members and those in their communities about precinct consolidations if the in-precinct requirement for poll workers remains in place and precincts are consolidated as a result. Democracy NC’s poll monitors will also have to divert their resources to ensure voters find the correct precinct, instead of providing the help they would otherwise provide voters.
105. In the midst of this ongoing public health crisis, there is no state interest in enforcing this requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. In-person voting uniform hours
106. North Carolina’s requirement that early voting sites in every county maintain uniform hours pursuant to N.C. Gen. Stat. § 163-227.6(c) is a severe burden on Plaintiffs’ right to vote, as the costs of maintaining uniform hours and limited resources in counties will cause precinct consolidation and long lines and crowds on early voting days that contravene social distancing directives needed to protect Plaintiffs’ health. Additionally, given the SBE Defendants’ knowledge about the effect that COVID-19 has had on the June 2020 runoff election and could have on the November 2020 general election, they have an
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obligation to mitigate precinct consolidation as much as possible so as to not severely burden voters’ right to vote. See Ury, 303 F. Supp. at 124.
107. Plaintiff Permar works at Duke Hospital as a staff assistant, thus it is important that she is able to vote at a time that is in line with her work schedule. Further, Ms. Permar or other similarly situated disabled individuals should not have to wait in long lines further risking their health or potential COVID-19 infection. Plaintiffs Democracy NC and LWVNC will also be required to divert resources in its voter education efforts to alert their members/advocates and those in their communities about precinct consolidations if the uniform hours requirement remains in place.
108. In the midst of this ongoing public health crisis, there is no state interest in enforcing this uniform hours requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Precinct-consolidation monitoring
109. North Carolina’s failure to provide a more accessible, centralized way in which voters and advocates can monitor precinct consolidation is a severe burden on Plaintiffs’ right to vote. The lack of centralized access to this information will impede and confuse voters’ ability to determine where and how best to vote in-person and will impede the efforts of advocates to oppose harmful precinct consolidations. Plaintiff Permar and other voters rely on being able to know in advance where early voting locations are, or where their election-day polling place is, so as to ensure that they are able to properly
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schedule a time to vote. Democracy NC is a central hub for voter information, and it would be a huge drain on its resources to not have easy access to proposed precinct consolidations to inform voters. In the midst of this ongoing public health crisis, there is no state interest in failing to provide this service that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide this service is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Personal Protective Equipment
110. North Carolina’s failure to provide PPE to all counties for use during early and Election-Day in-person voting is a severe burden on Plaintiffs’ right to vote, as the failure to provide this will exacerbate the shortage of poll workers and increase the risk present to all individuals that vote in person. In conducting its Election Protection hotline and poll monitoring program, Democracy NC volunteers will almost certainly be queried about PPE, who has it, and how to get it if is not provided. In the midst of this ongoing public health crisis, there is no state interest in failing to provide PPE that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide PPE is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
111. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution by administering and enforcing the above laws and/or by failing to provide the above accommodations and services during the COVID-19 pandemic.
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112. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of undue burdens on their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT TWO (SBE Defendants) (Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to Bodily Integrity in Violation of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983) 113. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 114. Voting is protected by the First Amendment as a means of political association and political expression. See Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Norman v. Reed, 502 U.S. 279, 288–90 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787–89, 806 (1983); Kusper v. Pontikes, 414 U.S. 51, 56–58 (1973); Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). 115. Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. See Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968); Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Green v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997).
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116. “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). Government actions that threaten the right to bodily integrity are subject to strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). The Supreme Court has invalidated voting requirements or conditions that require the forfeiture of another fundamental right. See Dunn v. Blumstein, 405 U.S. 330, 346, 353 (1972) (finding that durational residency requirement for voter registration placed unconstitutional condition on fundamental right to interstate travel).
117. The Fourteenth Amendment guarantees the right to bodily integrity, and this right is violated if government officials are deliberately indifferent to the violation of the plaintiff’s bodily integrity. See Missouri v. McNeely, 569 U.S. 141, 159 (2013); Guertin v. Michigan, 912 F.3d 907, 919 (6th Cir. 2019) (recognizing that “individuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest”) (quoting Planned Parenthood Sw. Ohio Reg. v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012)).
118. “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” Guertin, 912 F.3d at 921–22.
119. Defendants require Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley to satisfy unnecessary requirements for mail-in absentee voting that cannot be reasonably and safely accomplished without severely threatening their right to bodily integrity. Because in-person voting even more severely threatens to violate Plaintiffs’ bodily integrity by
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subjecting them to the significant risk of contracting COVID-19, Defendants’ enforcement of North Carolina’s requirements as to mail-in voting force Plaintiffs to forfeit their right to bodily integrity in order to exercise their right to vote. Should Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley exercise their right to vote by mail under these circumstances, Defendants will have knowingly subjected Plaintiffs to a foreign substance—the novel coronavirus that causes COVID-19—without a therapeutic basis or Plaintiffs’ consent.
120. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the Fourteenth Amendment to the U.S. Constitution, by requiring them to forfeit their right to bodily integrity in order to exercise their right to vote.
121. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of unconstitutional conditions on their rights to vote in violation of the Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT THREE (SBE Defendants) (Violation of the Rights of Free Speech and Association in violation of the First and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. §
1983) 122. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein.
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123. The First Amendment to the United States Constitution, as applied to the states through the Fourteen Amendment, prohibits an abridgment of the freedom of speech or associational rights. Any burden, regardless of how slight, “must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Norman, 502 U.S. at 288– 89.
124. The restrictions on who can assist voters with completing and returning mailin absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2 effectively prohibits the Organizational Plaintiffs and their members’ core political speech and expressive conduct, which includes assisting voters with requesting and submitting absentee ballot requests in an effort to engage potential voters and encourage them to vote. Plaintiff Schaffer’s individual speech and associational rights are also impaired by N.C. Gen. Stat. § 163-230.2, because she is no longer able to assist as she has in the past. These efforts are particularly important in the midst of the current public health crisis, where for many voting by mail is crucial to protecting their health and the health of their co-habitants and family members, and where the anticipated surge in individuals voting by mail means many will be doing so for the first time and without prior experience. Because of this prohibition, the Organizational Plaintiffs and their members will not be able to effectively engage potentially eligible absentee voters, nor will they be able to effectively facilitate those eligible voters requesting absentee ballots.
125. N.C. Gen. Stat. § 163-230.2 therefore chills the Organizational Plaintiffs’ speech and associational rights, and Plaintiff Schaffer’s individual speech and associational
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rights,69 and does so without being narrowly-tailored to serve a compelling state interest. The restrictions on who can assist voters with completing and submitting absentee ballot requests are not justified by a state interest, especially in light of the current COVID-19 pandemic, where allowing individuals to follow social-distancing guidelines and selfquarantine is crucial to protecting their health and the health of their co-habitants and family members.
COUNT FOUR (SBE Defendants) (Denial of Plaintiffs’ Right to Procedural Due Process in violation of the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1983) 126. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 127. The Due Process Clause of the Fourteenth Amendment prohibits the deprivation of “life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV § 1. “Where the government seeks to deprive someone of a liberty interest protected by due process, due process demands that certain procedural safeguards be provided.” United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). A liberty interest that is governed by due process can be created by the Constitution or “may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
69 Plaintiffs’ contend that Schaffer’s First Amendment right to free speech and association are restricted under the Anderson/Burdick test, or, alternatively, under exacting scrutiny similar to Meyer v. Grant, 486 U.S. 414, 422–23 (1988).
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128. At a minimum, “procedural due process requires fair notice of impending state action and an opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d 140, 146 (4th Cir. 2014) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
129. “Proper notice is ‘an elementary and fundamental requirement of due process,’ and must be reasonably calculated to convey information concerning a deprivation.’” Snider Int’l, 739 F.3d at 146 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)); see also Presley v. City of Charlottesville, 464 F.3d 480, 490 (4th Cir. 2006).
130. As for the opportunity to be heard, “Mathews set forth the familiar three-step inquiry for determining the adequacy of the opportunity to be heard: a balancing of the private interest and the public interest, along with ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.’” Snider Int’l, 739 F.3d at 146 (quoting Mathews, 424 U.S. at 335). “Fundamental to due process is an opportunity to be heard—‘an opportunity which must be granted at a meaningful time.’” Sciolino v. City of Newport News, Va., 480 F.3d 642, 653 (4th Cir. 2007) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
131. Absent exigent circumstances, due process requires pre-deprivation procedures. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in
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original)); Sciolino, 480 F.3d at 653 (“An opportunity to clear your name after it has been ruined by dissemination of false, stigmatizing charges is not ‘meaningful.’”).
132. North Carolina law gives all registered North Carolina voters statutory rights to request and cast a mail-in absentee ballot that will be processed and counted, thereby vesting them with liberty interests. Eligible, registered voters enjoy an “individual and personal” right to vote under North Carolina law. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)).
133. However, the SBE Defendants do not afford mail-in absentee voters any notice of or opportunities to cure material defects in their absentee ballot request forms or absentee ballots including their certificate envelopes that will result in rejection, thereby depriving Plaintiffs and other registered North Carolina voters of their liberty interests in requesting and casting a mail-in absentee ballot and exercising their fundamental right to vote.
134. The risk of erroneous deprivation is high, as these eligible, registered North Carolina voters are entitled by law to request an absentee ballot and to vote an absentee ballot and, therefore, must be provided with an additional procedural safeguard, the opportunity to timely cure any defect that would cause the absentee ballot request form’s rejection or the absentee ballot’s rejection.
135. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects.
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136. Defendants cannot advance any interests that outweigh the risk of erroneous deprivation. The threat of disenfranchising Plaintiffs and their members far outweighs any increased administrative burden in affording voters an opportunity to cure their absentee ballot request form defects or their absentee ballot defects, including any defects on the certificate envelope. Defendants’ interest in conducting fair election administration and preserving election integrity would not be compromised in the slightest, and they would satisfy their weighty interest in abiding by federal constitutional requirements.
137. For the foregoing reasons, SBE Defendants have violated and will continue to violate Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley’s federal constitutional rights to procedural due process.
138. At all relevant times, Defendants have acted under color of state law. 139. Defendants have deprived and will continue to deprive Plaintiffs Clark, Cates, Edwards, Priddy, Bentley and all voters seeking to vote by mail of their right to adequate notice and a meaningful opportunity to be heard in order to cure deficiencies with their absentee ballot request forms and their absentee ballots. This wholly fails to meet these minimum requirements of procedural due process, as guaranteed to Plaintiffs by the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
COUNT FIVE (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 140. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Compliant and the paragraphs in the counts below as though fully set forth herein.
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141. Under Title II of the Americans with Disabilities Act, state and local governments must not impose requirements on participation in public services, programs, or activities, including voting, that screen out individuals with disabilities from fully and equally enjoying those programs and must make reasonable modifications in policies, practices, or procedures, including voting and election procedures, when the modifications are necessary to avoid discrimination on the basis of disability.
142. A disability exists under the ADA when an individual has (1) a physical impairment; (2) that affects at least one major life activity; (3) in a substantial way. Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
143. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which interferes with several major life activities, including breathing. His COPD has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical impairment that has detrimental effects on her health, especially her ability to operate a major bodily function, her endocrine system, and puts her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions, which include being immunocompromised due to taking medications to address complications from a kidney transplant, are physical impairments that puts him at risk of severe illness from COVID-19. This substantially influences his major life activities because the function of his immune system is directly affected. Plaintiff Hutchins is legally blind, which substantially affects a number of his major life activities, such as seeing, reading, writing, and walking. These physical impairments substantially affect the various major life activities of Plaintiffs Clark,
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Edwards, Priddy, and Hutchins. Accordingly, Plaintiffs Clark, Edwards, Priddy, and Hutchins have disabilities as defined by the ADA and should be provided meaningful access to the ballot through a more accessible mail-in voting process.
144. Plaintiffs Clark, Edwards, and Priddy are unable to safely obtain two witness signatures without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death. Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot unless SBE Defendants eliminate the two-witness signature requirement.
145. Plaintiff Hutchins is prohibited from asking staff and nurses at his nursing facility to assist him with returning an absentee ballot request form, marking and completing an absentee ballot, and submitting an absentee ballot. As a result of the COVID-19 pandemic, his nursing home is closed to visitors and he is not able to receive assistance from his wife in any of these steps in the absentee voting process. Plaintiff Hutchins would be unable to vote by absentee ballot unless SBE Defendants allow nursing home staff to assist him with each of these steps.
146. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, Priddy possess are “at higher risk for severe illness from COVID-19.” Defendants’ failure and refusal to ensure that plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitute a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards and Priddy, whose health limits their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the ADA.
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147. Defendants’ failure to ensure that voters like Plaintiff Hutchins, who wishes to vote by mail because he is blind, vulnerable to COVID-19 due to his advanced age, and resides in a nursing home, can receive the assistance he needs from nursing home staff to return an absentee ballot request form and complete and submit an absentee ballot is a violation of the ADA.
148. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Title II of the Americans with Disabilities Act.
COUNT SIX (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 149. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 150. Under Section 504 of the Rehabilitation Act, federally funded programs, including state and local programs related to elections and voting, must not discriminate against individuals with disabilities and must make reasonable accommodations to allow individuals with disabilities to access the federal funded program, activity, or service. 151. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act.
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152. A disability exists under the Rehabilitation Act when an individual has (1) a physical impairment; (2) that affects at least one major life activity; (3) in a substantial way. Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
153. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which interferes with several major life activities, including breathing. His COPD has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical impairment that has detrimental effects on her health, especially her ability to operate a major bodily function, her endocrine system, and puts her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions, which include being immunocompromised due to taking medications to address complications from a kidney transplant, are physical impairments that put him at risk of severe illness from COVID-19. This substantially influences his major life activities because the function of his immune system is directly affected. Plaintiff Hutchins is legally blind, which substantially affects a number of his major life activities, such as seeing, reading, writing, and walking. These physical impairments substantially affect the major life activities of Plaintiffs Clark, Edwards, Priddy, and Hutchins. Accordingly, Plaintiffs Clark, Edwards, Priddy, and Hutchins have disabilities as defined by the Rehabilitation Act and should be provided meaningful access to vote through a more accessible mail-in voting process.
154. Plaintiffs Clark, Edwards, and Priddy are unable to obtain two witness signatures without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death.
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Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot unless Defendants eliminate the two-witness signature requirement.
155. Plaintiff Hutchins is prohibited from asking staff and nurses at his nursing facility to assist him with returning an absentee ballot request form, marking and completing an absentee ballot, and submitting an absentee ballot. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-230.2(e)(4), 163-231(b)(1). As a result of the COVID-19 pandemic, his nursing home is closed to visitors and he is not able to receive assistance from his wife in any of these steps in the absentee voting process. Plaintiff Hutchins would be unable to vote by absentee ballot unless SBE Defendants allow nursing home staff to assist him with each of these steps.
156. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, Priddy possess are “at higher risk for severe illness from COVID-19.” Defendants’ failure to ensure that plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitutes a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards, and Priddy, whose physical impairments limit their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the Rehabilitation Act.
157. Defendants’ failure to ensure that voters like Plaintiff Hutchins, who wishes to vote by mail because he is blind, vulnerable to COVID-19 due to his advanced age, and resides in a nursing home, can receive the assistance he needs from nursing home staff to return an absentee ballot request form and complete and submit an absentee ballot is a violation of Section 504 of the Rehabilitation Act.
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158. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
COUNT SEVEN (SBE Defendants) (Disparate Impact Claims in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 159. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 160. Under Title II of the Americans with Disabilities Act, States cannot promulgate standards, criteria, or methods of administration that have the effect of discriminating against individuals based on their disabilities. 161. The Defendants are all public entities covered by Title II of the ADA. 162. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy and individuals over the age of 65, such as Plaintiff Hutchins, are significantly more likely to risk serious illness or death if they contract COVID-19. Defendants’ enforcement of current voting regulations will unnecessarily expose Plaintiffs Clark, Edwards, Priddy, and Hutchins to an unjustifiable risk of severe illness from COVID-19 in order to vote. This will result in disparate impact upon Plaintiffs Clark, Edwards, Priddy, and Hutchins if they attempt to vote because they will be more harshly affected by COVID-19, in violation of the ADA.
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163. Defendants will be unable to show that the current voting regulations are justified by legitimate state interests.
164. The disparate impact that will result from enforcing these conditions has the effect of prohibiting individuals with disabilities from participating in the November 3, 2020 general election, in violation of Title II of the ADA.
COUNT EIGHT (SBE Defendants) (Disparate Impact Claims in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 165. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 166. Section 504 of the Rehabilitation Act prohibits federally funded programs, including state and local programs related to elections and voting, from enacting facially neutral policies that have a discriminatory impact on persons within a protected class. 167. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act. 168. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy and individuals over the age of 65, such as Plaintiff Hutchins are significantly more likely to risk serious illness or death if they contract COVID-19. Defendants’ enforcement of current voting requirements will unnecessarily expose Plaintiffs Clark, Edwards, Priddy, and Hutchins to an unjustifiable risk of severe illness from COVID-19 in order to vote. This will result in disparate impact upon Plaintiffs Clark,
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Edwards, Priddy, and Hutchins if they attempt to vote because they will be more harshly affected by COVID-19, in violation of the Rehabilitation Act.
169. Defendants will be unable to show that the current voting regulations are justified by legitimate state interests.
170. The disparate impact that will result from enforcing these conditions has the effect of prohibiting individuals with disabilities from participating in the November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
COUNT NINE (Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508) 171. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 172. Section 208 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10508, provides: “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” 173. The word “vote” is expressly defined in 52 U.S.C. § 10310(c)(1) as follows: The terms “vote” or “voting” shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this chapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
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OCA-Greater Houston v. Texas, 867 F.3d 604, 614–15 (5th Cir. 2017) (quoting 52 U.S.C. § 10310(c)(1)) (“‘To vote,’ therefore, plainly contemplates more than the mechanical act of filling out the ballot sheet.)
174. Under Section 208, a voter who is blind, disabled, or unable to read or write (“208-covered voter”) possesses the right to choose any person other than their employer/union representative—regardless of whether the person is a near relative or legal guardian—to assist them with the voting process, including the steps necessary to obtain, cast, and submit an absentee ballot. See 52 U.S.C. § 10508; OCA-Greater Houston, 867 F.3d at 614–15.
175. North Carolina restricts absentee voters to only assistance from their near relatives, verifiable legal guardians, or MAT team members, for absentee ballot request return, absentee ballot marking and completion, and absentee ballot return. Unlike for completing an absentee ballot request form, there is no similar exception for any of these steps for absentee voters who need assistance by reason of their blindness, disability, or inability to read or write. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163230.2(e)(4), 163-231(b)(1).
176. By imposing additional restrictions on who can assist a Section 208-covered voter who needs assistance with submitting their absentee ballot request form, marking and completing their absentee ballots, and returning their absentee ballots, specifically, by limiting valid assistors to the voter’s near relative, legal guardian, or county board multipartisan team members, N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-
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230.2(e)(4), and 163-231(b)(1) violate Section 208 of the VRA by failing to allow these

voters to choose any assistor who is not their employer or union representative.

177. Defendants’ failure to allow eligible voters who need assistance by reason of

their blindness, disability or ability to read or write in any part of the absentee voting

process, from any person of their choice, other than their employers or union officials, as

described herein, is a violation of Section 208. Plaintiff Walter Hutchins is harmed by these

restrictions on assistance with absentee ballot request, absentee ballot marking and

completion, and absentee ballot submission, and the corresponding lack of any disability-

based exceptions. Plaintiff Hutchins is blind and requires assistance to submit an absentee

ballot request form, and assistance in reading, marking, and submitting his ballot according

to his preferences.

178. By depriving Plaintiff Hutchins of rights and privileges under Section 208 of

the VRA under the color of state law, Defendants have violated and are liable under 42

U.S.C. § 1983.

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Court:

(a)

Assume jurisdiction over this matter;

(b)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h) (imposing 25-day voter registration

deadlines); N.C. Gen. Stat. § 163-230.2(a) (requiring requests for absentee ballots be made

by a form created by the State Board); N.C. Gen. Stat. § 163-230.2(c), (e), and (e1)

(imposing restrictions on absentee ballot request assistance); N.C. Gen. Stat. § 163-231(a) 74

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(imposing the double-witness certification requirement); N.C. Gen. Stat. § 163-

230.2(a)(4), (f) (to the extent disallows election officials from accepting any proof of

residency document acceptable under the Help America Votes Act (HAVA)), N.C. Gen.

Stat. § 163-227.6(c) (requiring uniform hours in precincts); and N.C. Gen. Stat. § 163-

42(b) (requiring a majority of poll workers to come from the precinct in which they serve),

and the Defendants’ failure to expand voter registration via online portals available through

DHHS services, failure to establish contactless drop boxes for absentee ballots, and to

establish mechanisms for requesting absentee ballots by phone, email, and online, failure

to establish mechanisms to cure deficient absentee ballot requests and absentee ballots,

failure to allow for submission of FWAB ballots, failure to provide PPE to county boards

of election for use during in-person voting, and failure to establish a more accessible,

centralized way in which voters and advocates can monitor precinct consolidation (and

thus advocate against harmful precinct consolidations), in the context of the pandemic,

taken individually or in combination, violate the First and Fourteenth Amendments to the

U.S. Constitution, as enforced through 42 U.S.C. § 1983;

(c)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

§ 163-230.2(c), (e), and (e1) (imposing restrictions on absentee ballot request assistance),

N.C. Gen. Stat. § 163-231(a) (imposing the double-witness certification requirement), and

failure to expand voter registration via online portals available through DHHS services,

establish contactless drop boxes for absentee ballots, establish mechanisms for requesting

absentee ballots by phone, email, and online, in the context of the pandemic, taken

individually or in combination, violate the unconstitutional condition doctrine and thereby 75

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Plaintiffs’ First and Fourteenth Amendment right to bodily integrity, as enforced through

42 U.S.C. § 1983;

(d)

Declare that Plaintiffs’ First Amendment associational rights are violated by

N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-230.2(a), 163-230.2(e)(4), and

163-231(b)(1);

(e)

Declare that the lack of a cure mechanism for Plaintiffs’ mail-in absentee

ballot request forms and mail-in absentee ballots violates their rights to procedural due

process;

(f)

Declare that N.C. Gen. Stat. §§ 163-226.3(a)(4)-(a)(6), 163-230.2(e)(4), 163-

231(a), and 163-231(b)(1) violate Title II of the Americans with Disabilities Act, 42 U.S.C.

§§ 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794;

(g)

Declare that N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-

230.2(e)(4), and 163-231(b)(1) violate Section 208 of the Voting Rights Act, 52 U.S.C. §

10508;

(h)

Preliminarily and permanently enjoin Defendants from administering and

enforcing during the COVID-19 pandemic:

i. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), imposing 25-day voter

registration deadlines;

ii. N.C. Gen. Stat. § 163-230.2(a), requiring requests for absentee ballots be

made by a form created by the State Board of Elections;

iii. N.C. Gen. Stat. § 163-230.2(a)(4), (f), to the extent that it limits the proof of

residency documents that voters must submit with their absentee ballot 76

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request forms to only a North Carolina driver’s license number, special

identification card number, or the last four digits of his or her Social Security

number, and instead allow election officials to accept any proof of residency

document acceptable under the Help America Votes Act (HAVA);

iv. N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-230.2(e)(4), 163-

231(a), and 163-231(b)(1), imposing restrictions on assistance for absentee

ballot request return, absentee ballot marking and completion, and absentee

ballot submission;

v. N.C. Gen. Stat. § 163-231(a), imposing the double-witness certification

requirement;

vi. N.C. Gen. Stat. § 163-227.6(c), requiring uniform hours in precincts; and

vii. N.C. Gen. Stat. § 163-42(b), requiring a majority of poll workers to come

from the precinct in which they serve.

(i)

Preliminarily and permanently enjoin Defendants from violating Plaintiffs’

constitutional and federal statutory rights with respect to any election in the state during

the COVID-19 pandemic.

(j)

Order the SBE Defendants to extend the voter registration deadline in N.C.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), until 5:00pm on the last Saturday of early

voting and the DOT and DHHS Defendants to process voter registrations online and

received in their offices up until and including 5:00pm on the last Saturday of early voting

during the COVID-19 pandemic.

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(k)

Order Defendants to implement measures to ensure eligible North

Carolinians are able to vote absentee by mail, with respect to any election in the state during

the COVID-19 pandemic, including:

i. Expanding voter registration via online portals available through DHHS

services;

ii. Establishing contactless drop boxes for absentee ballots;

iii. Establishing mechanisms for requesting absentee ballots by phone, email,

and online;

iv. Permitting election officials to accept any proof of residency document

acceptable under the Help America Votes Act (HAVA) as acceptable forms

of identification with absentee ballot requests;

v. Establishing mechanisms to cure deficient absentee ballot requests and

absentee ballots; Establishing a mechanism for accepting FWAB ballots;

vi. Establishing a more accessible, centralized way in which voters and

advocates can monitor precinct consolidation; and

vii. Permitting voters who for reason of blindness, disability, or an inability to

read or write, require assistance to return an absentee ballot request form,

mark and complete an absentee ballot, and/or submit an absentee ballot, to

obtain assistance from anyone who is not their employer or union

representative.

(l)

Order the SBE Defendants to permit mail-in absentee voters to cast a

downloadable Federal Write-in Absentee Ballot (“FWAB”), if and only if their timely78

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requested absentee ballot has not arrived in time for the voter to timely cast that ballot so

that it will be counted;

(m)

Order Defendants to implement a remedial plan to educate voters regarding

their options to register to vote and obtain and cast a ballot.

(n)

Retain jurisdiction to monitor Defendants’ compliance with this Court’s

judgment;

(o)

Grant Plaintiffs their reasonable costs and attorneys’ fees incurred in

bringing this action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and as otherwise

permitted by law; and

(p)

Grant such other relief as this Court deems just and proper.

Dated: June 5, 2020.

Respectfully submitted,

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/s/ Jon Sherman Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email: jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org

/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition.org
jeff@southerncoalition.org
/s/ George P. Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392) Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email: george.varghese@wilmerhale.com

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CERTIFICATE OF SERVICE I certify that on the 5th day of June, 2020, the foregoing FIRST AMENDED COMPLAINT was served by electronic mail to Defendants’ Counsel, Alec McC. Peters, Chief Deputy Attorney General, at the address apeters@ncdoj.gov, with consent of counsel to accept service in this manner.
/s/ Allison J. Riggs Allison J. Riggs
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs,

vs.

Civil Action

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

No. 20-cv-457
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND REQUEST TO EXPEDITE

Defendants.

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Plaintiffs Democracy North Carolina (“DemNC”) and the League of Women Voters of North Carolina (“LWVNC” and, together with DemNC, the “Organizational Plaintiffs”), as well as Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Walter Hutchins, and Susan Schaffer (“Individual Plaintiffs”) (together, with the Organizational Plaintiffs, the “Plaintiffs”), hereby respectfully request, pursuant to Federal Rule of Civil Procedure 65(a)(1), that the Court issue a preliminary injunction preventing Defendants from enforcing the challenged provisions of North Carolina’s election code, Chapter 163 of the North Carolina General Statutes, and requiring Defendants to provide additional accommodations to safeguard voters’ rights during the November 3, 2020, general election in light of the COVID-19 pandemic.
As set forth in Plaintiffs’ First Amended Complaint, ECF No. 8, North Carolina’s current law and election administration impose unconstitutional burdens on the right to vote in violation of the First and Fourteenth Amendments, violate the unconstitutional conditions doctrine, violate Plaintiffs’ First Amendment associational rights, violate Plaintiffs’ rights to procedural due process, violate Section
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208 of the Voting Rights Act, and violate Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The COVID-19 pandemic presents an unprecedented challenge to the upcoming November 3, 2020, general election. The experience of states that have already conducted their primaries has shown that the pandemic has deterred voters, strained election administrators’ finite resources, and ultimately disenfranchised countless citizens. Defendant the State Board of Elections anticipates an unprecedented, ten-fold increase in the use of mail-in absentee ballots relative to the 2016 general election and a drastic shortfall in available poll workers that threatens the operation of polling places. Yet, Defendants remain unprepared to manage that level of absentee mail-in voting or to adapt in-person voting to ensure both safety and equal access. These and other statutory provisions pose a grave threat to voters’ health and therefore severely burden the most fundamental right of U.S. citizenship, no matter how voters exercise it.
Preliminary injunctive relief is warranted—(1) Plaintiffs are likely to succeed on the merits of their
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claims; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction is in the public interest. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). Absent relief from this Court, voters will needlessly face great hardship and disenfranchisement in the November 3, 2020, general election.
Accordingly, Plaintiffs request that the Court preliminary enjoin Defendants from administering and enforcing for the November 3, 2020, general election:
i. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), imposing 25-day voter registration deadlines;
ii. N.C. Gen. Stat. § 163-230.2(a), requiring requests for absentee ballots be made by a form created by the State Board of Elections;
iii. N.C. Gen. Stat. § 163-230.2(a)(4), (f), to the extent that it limits the proof of residency documents that voters must submit with their absentee ballot request forms to only a North Carolina driver’s license number, special identification card number, or the last four digits of his or her Social Security number, and instead
4
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allow election officials to accept any proof of residency document acceptable under the Help America Votes Act (HAVA); iv. N.C. Gen. Stat. §§ 163-226.3(a)(4)-(5), 163230.2(e)(4), 163-231(a), and 163-231(b)(1), imposing restrictions on assistance for absentee ballot request return, absentee ballot marking and completion, and absentee ballot submission; v. N.C. Gen. Stat. § 163-231(a), imposing the doublewitness certification requirement; vi. N.C. Gen. Stat. § 163-227.6(c), requiring uniform hours in precincts; and vii. N.C. Gen. Stat. § 163-42(b), requiring a majority of poll workers to come from the precinct in which they serve. Plaintiff further request that the Court preliminarily enjoin Defendants from violating Plaintiffs’ constitutional and federal statutory rights with respect to any election in the state for the November 3, 2020, general election. Plaintiffs further request that the Court issue an order requiring the SBE Defendants to extend the voter registration deadline in N.C. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g),
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(h), until 5:00 pm on the last Saturday of early voting and the DOT and DHHS Defendants to process voter registrations online and received in their offices up until and including 5:00 pm on the last Saturday of early voting for the November 3, 2020, general election, and further order Defendants to implement measures to ensure eligible North Carolinians are able to vote in the state during the COVID-19 pandemic, including:
a. Expanding voter registration via online portals available through DHHS services;
b. Establishing contactless drop boxes for absentee ballots;
c. Establishing mechanisms for requesting absentee ballots by phone, email, and online;
d. Permitting election officials to accept any proof of residency document acceptable under the Help America Votes Act (HAVA) as acceptable forms of identification with absentee ballot requests;
e. Establishing mechanisms to cure deficient absentee ballot requests and absentee ballots; Establishing a mechanism for accepting FWAB ballots;
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f. Establishing a more accessible, centralized way in which voters and advocates can monitor precinct consolidation; and
g. Permitting voters who for reason of blindness, disability, or an inability to read or write, require assistance to return an absentee ballot request form, mark and complete an absentee ballot, and/or submit an absentee ballot, to obtain assistance from anyone who is not their employer or union representative.
Plaintiffs further request the Court order Defendants to implement a remedial plan to educate voters regarding their options to register to vote and obtain and cast a ballot.
Given the urgency of the relief sought, Plaintiffs respectfully request expedited briefing and consideration of this Motion, and that the Court shorten the requirements of Local Civil Rule 7.3 to require Defendants’ response within 14 days of service of this Motion and Plaintiffs’ reply within 7 days of service of the response. Defendants, through counsel, consent to the request to expedite briefing and consideration. Finally, Plaintiffs respectfully request for leave to present oral argument in support of this Motion.
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This Motion is supported by the contemporaneously filed Memorandum of Law, and accompanying declarations, and any additional submissions that may be considered by the Court.

Dated: June 5, 2020.

Respectfully submitted,

/s/ Jon Sherman Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email:
jsherman@fairelectionsce nter.org mkantercohen@fairelectionscen ter.org caguilera@fairelectionscenter .org

/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition.o rg
jeff@southerncoalition. org
/s/ George P. Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392) Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000

8
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Email: george.varghese@wilmerh ale.com
joseph.yu@wilmerhale.com stephanie.lin@wilmerhale.co
m rebecca.lee@wilmerhale.com rick.ingram@wilmerhale.com
9
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CERTIFICATE OF SERVICE I certify that on the 5th day of June, 2020, the foregoing Motion for Preliminary Injunction and Request to Expedite was served by electronic mail to Defendants’ Counsel, Alec McC. Peters, Chief Deputy Attorney General, at the address apeters@ncdoj.gov, with consent of counsel to accept service in this manner.
/s/ Allison J. Riggs Allison J. Riggs
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs, vs.

Civil Action

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

No. 20-cv-457
PLAINTIFFS’ MEMORANDUM IN SUPPORT
OF THEIR MOTION FOR PRELIMINARY
INJUNCTION AND REQUEST TO EXPEDITE*

Defendants.

* This memorandum exceeds the page limits set forth in Local Rule 7.3. The parties have filed a motion to expand the page limits for this memorandum. ECF No. 7.

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TABLE OF CONTENTS TABLE OF CONTENTS ....................................... ii TABLE OF AUTHORITIES .................................... iv INTRODUCTION ............................................. 1 STATEMENT OF FACTS ....................................... 6
I. The COVID-19 Pandemic ............................... 6 A. COVID-19 .......................................... 6 B. North Carolina’s Response to COVID-19............. 10 C. Election Administration Timing ................... 12
QUESTIONS PRESENTED ..................................... 14 LEGAL STANDARD .......................................... 15 ARGUMENT ................................................ 15
I. Plaintiffs are likely to succeed on the merits of their claims. ............................................... 15
A. Undue Burdens on the Right to Vote ............... 15 i. Voter registration .............................. 17 ii. Absentee Ballot Requirements .................... 21 iii. In-Person Voting Restrictions.................. 39
B. Unconstitutional Condition on the Right to Vote ... 48 C. Violation of the Organizational Plaintiffs’ and Plaintiff Schaffer’s First Amendment Rights to Free Speech and Association ............................... 54 D. Procedural Due Process ........................... 59 E. Violation of Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131 et seq.) and § 504 of the Rehabilitation Act (29 U.S.C. § 794) .......... 62
ii
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F. Violation of Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508) ............................. 70 II. Absent injunctive relief, Plaintiffs will suffer irreparable harm in the November general election. ..... 71 III. ... Given the dire circumstances of this deadly global pandemic, the balance of hardships tips heavily in Plaintiffs’ favor. .................................... 74 IV. The public interest strongly favors granting Plaintiffs’ requested relief to facilitate participation in the general election................................ 75 REQUEST FOR EXPEDITED CONSIDERATION ..................... 76 CONCLUSION .............................................. 77
iii
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TABLE OF AUTHORITIES
Federal Cases
A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356 (4th Cir. 2008)
Action NC v. Strach, 216 F. Supp. 3d 597 (M.D.N.C. 2016)
Anderson v. Celebrezze, 460 U.S. 780 (1983)
Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)
United States v. Baker, 45 F.3d 837 (4th Cir. 1995)
Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004)
Bragdon v. Abbott, 524 U.S. 624 (1998) (HIV)
Buckley v. Am. Constitutional Law Found, 525 U.S. 182 (1999)
Burdick v. Takushi, 504 U.S. 428 (1992)
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
Clingman v. Beaver, 544 U.S. 581 (2005) (O’Connor, J., concurring)
Common Cause Ga. v. Kemp, 347 F. Supp. 3d 1270 (N.D. Ga. 2018)
Common Cause Ind. v. Lawson, 327 F. Supp. 3d 1139 (S.D. Ind. 2018)
iv
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Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)
Cross v. Mokwa, 547 F.3d 890 (8th Cir. 2008) (Bye, J., concurring in part)
Davis v. Nat’l R.R. Passenger Corp., 733 F. Supp. 2d 474 (D. Del. 2010)
Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020)
Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020)
Fusaro v. Cogan, 930 F.3d 241 (4th Cir. 2019)
Gill v. Whitford, 138 S. Ct. 1916 (2018)
Harman v. Forssenius, 380 U.S. 528 (1965)
Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249 (4th Cir. 2006)
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998)
Kusper v. Pontikes, 414 U.S. 51 (1973)
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014)
League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008)
League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016)
Lefkowitz v. Cunningham, 431 U.S. 801 (1977)
v
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Libertarian Party of Ill. v. Pritzker, No. 20-CV-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020)
McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994)
Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250 (1974)
Meyer v. Grant, 486 U.S. 414 (1988)
Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546 (4th Cir. 1994)
Myers v. Hose, 50 F.3d 278 (4th Cir. 1995)
N.C. State Conf. of NAACP v. Cooper, 430 F. Supp. 3d 15 (M.D.N.C. 2019)
Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016)
Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249 (4th Cir. 2003)
Norman v. Reed, 502 U.S. 279 (1992)
Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018) (applying Mathews and concluding that the state’s scheme “fails to guarantee basic fairness”)
Seremeth v. Bd. of Cty. Comm’rs Frederick Cty, 673 F.3d 333 (4th Cir. 2012)
Shapiro v. Thompson, 394 U.S. 618 (1969)
Simmons v. United States, 390 U.S. 377 (1968)
vi
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Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d 140 (4th Cir. 2014)
Thomas v. Andino, No. 3:20-cv-01552-JMC, 2020 WL 2617329 (D.S.C. May 25, 2020)
Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969)
Wilkinson v. Austin, 545 U.S. 209 (2005)
Williams v. Rhodes, 393 U.S. 23 (1968)
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)
Zessar v. Helander, No. 05 C 1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006)
State Cases
League of Women Voters of Okla. v. Ziriax, No. 118765, 2020 WL 2111348 (Okla. May 4, 2020)
Federal Statutes
29 U.S.C. § 794(a)
42 U.S.C. § 1983
42 U.S.C. § 12132
52 U.S.C. §§ 20302(a)(3), 20303(a)(1)
52 U.S.C. § 20303(b)
Americans with Disabilities Act Title II (42 U.S.C. §§ 12131 et seq.)
Rehabilitation Act § 504 (29 U.S.C. § 794)
Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq. vii
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State Statutes

An Act to Amend the Laws Governing Mail-In Absentee Ballots, S.L. 2019-239

N.C. Gen. Stat. § 163-23.2

N.C. Gen. Stat. § 163-42(b)

N.C. Gen. Stat. § 163-82.6(c)

N.C. Gen. Stat. §§ 163-82.6(d), 163-82.20(g), (h)

N.C. Gen. Stat. § 163-128(a)

N.C. Gen. Stat. § 163-226(a)

N.C. Gen. Stat. §§ 163-226.3(a)(4) and 163237(b)(1)

N.C. Gen. Stat. §§ 163-226.3(a), 163-229(b)(4), 163-231(a)

N.C. Gen. Stat. § 163-227.2(b)

N.C. Gen. Stat. § 163-227.6(c)

N.C. Gen. Stat. § 163-228(c)

N.C. Gen. Stat. § 163-230.2(a)(4), (f)

N.C. Gen. Stat. § 163-230.2(a), (e)(1)

N.C. Gen. Stat. § 163-230.2(e)1

N.C. Gen. Stat. § 163-230.2 (e)(2)

N.C. Gen. Stat. § 163-231(a)

N.C. Gen. Stat. § 163-237

N.C. Gen. Stat. §§ 163-274, 163-275

Regulations

10 C.F.R. § 4.101

28 C.F.R. § 35.108(b)(2)

viii

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28 C.F.R. § 35.164 28 C.F.R. § 36.105(c)(1) Other Authorities Local Civil Rule 7.3(f)
ix
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INTRODUCTION The COVID-19 pandemic has upended the normal functioning of our democracy. State officials nationwide have attempted to ensure that voters can cast their ballots safely. Some states have postponed their elections, while others have shifted to mail-in voting only. In states that have maintained in-person voting in the face of the pandemic, thousands of elderly poll workers have withdrawn from service, drastically reducing the number of operational polling sites. The experience of states that have already conducted their primaries has shown that the pandemic has deterred voters, strained election administrators’ finite resources, and ultimately disenfranchised countless citizens. In North Carolina, Defendant the North Carolina State Board of Elections (“SBE”) anticipates an unprecedented, tenfold increase in the use of mail-in absentee ballots relative to the 2016 general election as voters seek to maintain physical distancing and limit their exposure to the novel coronavirus that causes COVID-19. Yet Defendants remain unprepared to manage that level of absentee mail-in voting or to adapt in-person voting to ensure both safety and equal access. North Carolina’s election code was not enacted with
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a global pandemic in mind, let alone one of this ferocity. And in the context of a pandemic caused by a highly contagious and lethal virus, a number of statutory provisions pose a grave threat to voters’ health and therefore severely burden the most fundamental right of U.S. citizenship, no matter how voters exercise it. Absent relief from this Court, voters will needlessly face great hardship and disenfranchisement.
First, the 25-day deadline to register to vote must be lifted to ensure adequate opportunities for voters to safely complete the registration process. In a typical presidential election year, voters register in robust and increasing numbers. This year, however, registration rates have cratered as in-person registration drives have been cancelled and other in-person opportunities for registration have disappeared. Normally, this fallout would be mitigated by the opportunity to register at an early voting site within the 25-day window, but this option risks exposing voters and their families to infection.
Second, in light of the pandemic, voting by mail should theoretically be a safer option for many North Carolina voters, but the absentee ballot laws require voters to take unreasonable risks with their health. North Carolina’s
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restrictions on requesting, completing, and submitting a mail-in absentee ballot—including the requirement that voters complete their ballot in the presence of two witnesses—have already caused at-risk and quarantined voters to conclude that they will not be able to participate in the November election.
Third, restrictions on the administration of in-person voting must be relaxed to safeguard voters’ rights, as well as their health. For example, requiring that a majority of poll workers reside in the precinct where they serve will result in inadequate staffing; the risk of exposure to COVID19 is already causing dire shortfalls in poll worker recruitment. The additional requirement under North Carolina law that counties maintain uniform hours for early voting sites will further reduce early voting capacity. Both of these provisions will lead to long lines and large crowds, forcing voters to violate social distancing directives to exercise the right to vote.
Plaintiffs Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, and Walter Hutchins, similar to many others in North Carolina, live with underlying health conditions and/or
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disabilities that heighten their risks of severe complications and death from COVID-19. If this Court does not relax the state’s unconstitutionally burdensome registration and voting requirements for mail-in absentee and in-person voting—relief that Plaintiffs request solely for the November 2020 general election—Plaintiffs and countless North Carolina voters will not be able to vote in that election, or will have to choose between forgoing this right and risking their health and the health of their family members.
The time to act is now. Epidemiologists and infectious disease specialists predict that COVID-19 infections will surge in the fall. Election administration procedures follow an inexorable timeline, and the necessary steps—to procure equipment such as personal protective equipment (“PPE”), designate polling places, print mail-in ballots with instructions, educate the electorate about voting procedures, and recruit and train poll workers—must begin well in advance of Election Day. Absent timely intervention by this Court, Plaintiffs will suffer irreparable injury.
Plaintiffs Democracy North Carolina (DemNC) and the League of Women Voters of North Carolina (“LWVNC” and, together with DemNC, the “Organizational Plaintiffs”), as
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well as Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Walter Hutchins, and Susan Schaffer (“Individual Plaintiffs”) (collectively, “Plaintiffs”), bring this civil rights action under the First and Fourteenth Amendments, Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act (the “RA”), 29 U.S.C. § 794, as enforced by 42 U.S.C. § 1983, for preliminary declaratory and injunctive relief against Defendants SBE; Damon Circosta, in his official capacity as Chair of SBE; Stella Anderson, in her official capacity as Secretary of SBE; Ken Raymond, Jeff Carmon III, and David C. Black, all in their official capacities as Members of SBE; Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections (collectively “SBE Defendants”); Defendants the North Carolina Department of Transportation (“DOT”) and J. Eric Boyette, in his official capacity as Secretary of the Department of Transportation (the “DOT Defendants”); and Defendants the North Carolina Department of Health and Human Services (“DHHS”) and Dr. Mandy Cohen, in her official capacity as Secretary of Health and Human Services (“DHHS Defendants”). Plaintiffs seek an
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injunction against the voting laws that will most interfere with conducting a free and fair election in the fall, and respectfully request that the Court expedite the briefing and consideration of this issue.
STATEMENT OF FACTS I. The COVID-19 Pandemic
A. COVID-19 “SARS-CoV-2 is a newly identified coronavirus that is the causative agent involved in Coronavirus Disease 2019 (Covid-19).” Murray Decl. ¶ 6. The World Health Organization (“WHO”) designated COVID-19 to be a Public Health Emergency of International Concern on January 30, 2020, then declared less than two months later that COVID-19 had become a pandemic. Riggs Decl. ¶ 6. The coronavirus continues to spread at an unprecedented pace. As of June 4, 2020, there were 1,842,101 confirmed cases and 107,029 deaths in the United States.1 This virus spreads through respiratory droplets that are attached to the surfaces of objects or are suspended in air and transmitted
1Coronavirus Disease 2019 (COVID-19), Cases in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last updated June 4, 2020).
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via inhalation and “emitted during coughs, sneezes or even talking.” Murray Decl. ¶¶ 8–9. Since it can be transmitted by symptomatic and asymptomatic people alike, individuals can spread the disease before realizing they are infected and self-quarantining. Id. ¶ 9.
Though COVID-19 typically begins with “a flu-like illness that starts out with fever, cough, sore throat and shortness of breath,” some people “develop much more serious illness, characterized by respiratory compromise due to pneumonia that can be gradual or sudden.” Murray Decl. ¶¶ 14–15. The major complication in patients with severe disease is acute respiratory distress syndrome (“ARDS”), which commonly requires patients to be put on a ventilator. Id. ¶ 16. People who develop severe complications and require mechanical ventilation to survive ARDS “are likely to develop lung scarring that may permanently impair their pulmonary function” or, in the case of stroke, “long term neurological deficits from these events.” Id. ¶ 19. In critical cases, COVID-19 can be fatal. Id. ¶ 16. Even young individuals, including children, are at risk of severe complications and death from COVID-19. Id. ¶¶ 16, 20.
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According to the CDC, individuals are at higher risk of severe complications and death from COVID-19 if they are 65 years of age or older, are immunocompromised, or have underlying health conditions and diseases, including chronic lung disease such as chronic obstructive pulmonary disease (“COPD”), asthma, serious heart conditions, diabetes, and severe obesity. Riggs Decl. ¶ 7; Murray Decl. ¶¶ 20–21.
The COVID-19 pandemic is expected to produce steady or increased transmission in the United States through the fall, as voters seek to cast their ballots on or before Election Day. Dr. Megan Murray notes in her declaration that within the range of different possible scenarios for COVID-19 epidemic trajectories, “all scenarios are similar in that they predict that it is highly likely that Covid-19 will continue to circulate at its current level or at an even higher level than currently in October and November of 2020.” Id. ¶ 33. Likewise, Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said a second wave of infections in the United States is “inevitable,” and CDC Director Robert Redfield has said that wave may “be even more difficult than the one we just went through.” Riggs Decl. ¶ 8.
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Due to the relaxation of social distancing measures, the corresponding increase in social contacts, and seasonal changes, “it is reasonable to expect that, like other betacoronaviruses, [COVID-19] may transmit somewhat more efficiently in fall and winter than summer.” Murray Decl. ¶¶ 37–39. The projected persistent or increased risk of transmission in the fall and winter is, in part, due to seasonal factors, including “differences in the ways people congregate,” as “people tend to spend more time indoors with less ventilation and less personal space than they do in the summer.” Id. ¶ 39. Based on studies of previous influenza epidemics, Dr. Murray notes that the “most likely scenario” is that “the current first wave of Covid-19 will be followed by a larger wave in the fall or winter of 2020 and one or more smaller subsequent waves in 2021,” and that “most epidemiologists expect that incidence will increase in the fall/winter months of 2020-2021.” Id. ¶¶ 41–42. “In the period prior to the widespread use of an effective vaccine, this spread will continue to lead to serious disease and death in at-risk groups.” Id. ¶ 44. Finally, progress towards herd immunity and vaccine development and production are unlikely
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to advance sufficiently quickly to significantly alter the trajectory of the COVID-19 outbreak. Id. ¶¶ 51.
B. North Carolina’s Response to COVID-19 As of June 4, 2020, the North Carolina Department of Health and Human Services (“DHHS”) had confirmed 31,966 positive cases and 960 deaths in North Carolina, with 1,189 new cases reported in North Carolina on June 4, 2020 alone.2 Governor Cooper has announced a three-phase plan for easing restrictions in North Carolina, and the timeline for implementing the plan will depend on whether North Carolina has successfully met key metrics regarding infection in the state. Since May 20, 2020, North Carolina has been in “Phase 2,” which “very strongly encourage[s]” individuals at high risk of severe illness, including those 65 years or older and/or with underlying medical conditions, to stay home and travel only for “absolutely essential purposes.” Id. It maintains the prior guidance that individuals maintain at least six feet of social distancing, and requires businesses to limit occupancy and take other measures promoting social
2 COVID-19 Response, COVID-19 North Carolina Dashboard, NCDHHS (last updated June 4, 2020).
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distancing. Id. It also encourages individuals to wear face coverings. Id. Mass gatherings of more than 10 people indoors and 25 people outdoors remain prohibited. Id.3 Given the trend of increasing transmission, similar measures will likely be required for the remainder of 2020, and Governor Cooper has stated that any spike in infections may require tightening restrictions again. Riggs Decl. ¶ 10.
COVID-19 will have an unprecedented impact on the upcoming general election on November 3, 2020. State and county election officials have recently drawn attention to the inadequacies of North Carolina’s election laws to facilitate safe, free, and fair voting during a pandemic. On March 26, 2020, Defendant Karen Brinson Bell wrote to Governor Cooper and the General Assembly’s leadership requesting statutory changes to address the anticipated impact of the COVID-19 pandemic on the upcoming elections. Riggs Decl. ¶ 3. In a follow-up letter, Defendant Bell emphasized that changes were required immediately during the April 28 legislative
3 The DHHS Defendants similarly recommend that individuals “put distance between yourself and other people” and advise, “[t]he very best evidence on reducing the spread is to maintain social distance and stay at home.” Riggs Decl. ¶ 22
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session in order to be effective for North Carolina’s upcoming general election. Riggs Decl. ¶ 4.
On April 27, 2020, dozens of county board of elections officials from eleven counties in North Carolina’s 11th Congressional District similarly issued an “urgent request” of legislators to protect upcoming elections. Riggs Decl. ¶ 5. They warned that regular poll workers were “reluctant to serve” because a large percentage of them are elderly and at higher risk of severe complications and death from COVID-19. Id. These county officials requested that the legislators eliminate the requirement that a majority of poll workers reside in the precinct in which they serve and instead permit officials to recruit poll workers from anywhere in the county.
C. Election Administration Timing In her letter to Governor Cooper, Defendant Bell stated the urgency of certain requested changes, particularly to absentee voting by mail, noting that “[b]ecause of deadlines associated with the 2020 General Election . . . there is an immediate need to prepare for a coronavirus response.” Riggs Decl. ¶ 4. She advised that expanding the options for absentee requests needed to be made “as soon as possible as voters may already request absentee ballots for the June 23 and November
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3 elections,” that an online portal would need to be established “immediately,” and that reducing or eliminating the witness requirement needed to happen “now in order to update the absentee instructions and return envelope, since these will need to be redesigned by June and printed in early July to ensure the counties can meet the start of absenteeby-mail voting on September 4, 2020.” Id. She also noted that modifying the uniform hours requirement would need to be made “as soon as possible to allow time for county boards to locate and procure appropriate sites, a process that has already begun for the November 3 election.” Id.
Consistent with this, election expert Dr. Paul Gronke states that “The experiences of Wisconsin, Pennsylvania, and other states provide evidence that North Carolina will want to prepare as soon as possible” for the November election. Gronke Decl. ¶ 50; see also ¶¶ 39–49, 63–64. Former Executive Director of the North Carolina State Board of Elections likewise concurs with Defendant Bell’s assessment that immediate action is required to prepare for the November election. Bartlett Decl. ¶ 29.
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QUESTIONS PRESENTED A. Whether N.C. Gen. Stat. §§ 163-82.6(d), 163-82.20(g),
(h) , 163-230.2(a), (c), (e), (e1), 163-231(a), 163227.6(c), and 163-42(b) imposing restrictions on voter registration, mail-in voting, and in-person voting, and the Defendants’ failures to expand voter registration via online portals available through DHHS services, establish contactless drop boxes for absentee ballots, establish mechanisms for requesting absentee ballots by phone, email, and online, establish mechanisms to cure deficient absentee ballot requests and absentee ballots, allow for submission of Federal Write-in Absentee Ballots (“FWAB”), provide personal protective equipment (“PPE”) to county boards of election for use during in-person voting, and establish a more accessible, centralized way in which voters and advocates can monitor precinct consolidation, in the context of the pandemic violate the First and Fourteenth Amendments, Title II of the Americans with Disability Act, and Section 504 of the Rehabilitation Act. B. Whether Plaintiffs are entitled to preliminary injunctive relief.
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LEGAL STANDARD To prevail on a motion for a preliminary injunction, plaintiffs must demonstrate that (1) they are “likely to succeed on the merits”; (2) they “will likely suffer irreparable harm absent an injunction”; (3) “the balance of hardships weighs in their favor”; and (4) “the injunction is in the public interest.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). “In each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.’” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). Plaintiffs readily meet these requirements.
ARGUMENT I. Plaintiffs are likely to succeed on the merits of
their claims. A. Undue Burdens on the Right to Vote Under the First and Fourteenth Amendments to the U.S. Constitution, any burden on the right to vote must be balanced against a state’s legitimate interest in that requirement. The Fourth Circuit has distilled governing Supreme Court precedent into the following test:
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When facing any constitutional challenge to a state’s election laws, a court must first determine whether protected rights are severely burdened. If so, strict scrutiny applies. If not, the court must balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state’s interests in ensuring that ‘order, rather than chaos, is to accompany the democratic processes.’ Fusaro v. Cogan, 930 F.3d 241, 257–58 (4th Cir. 2019) (quoting McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995)). To survive strict scrutiny, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). Even in the absence of a severe burden, the court must still evaluate “the legitimacy and strength of each of [the state’s] interests” and “consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). While states certainly have an interest in protecting against voter fraud and ensuring voter integrity, the interest will not suffice absent “concrete evidence” that “those interests make it necessary to burden the plaintiff’s rights.” Fish v. Schwab, 957 F.3d 1105, 1133 (10th Cir. 2020) (internal quotation marks omitted).
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Each of the laws challenged and other modifications

requested in this action, taken individually and as a

collective scheme, unduly burden Plaintiffs’ right to

register and vote. In the midst of this ongoing public health

crisis, the burdens on Plaintiffs’ right to vote imposed by

the challenged provisions and any refusal to provide the

requested modifications are neither justified by nor narrowly

drawn to advance a compelling state interest. Unless

Plaintiffs are granted the relief requested, thousands of

North Carolinians’ voting rights will be severely burdened,

or even denied completely, in the November general election.

i. Voter registration

In North Carolina, voters who register by mail, through

state agencies, or online through the Department of Motor

Vehicles (“DMV”) (a division of Defendant DOT), must do so at

least 25 days before the election in which the voter wishes

to cast a ballot. See N.C. Gen. Stat. §§ 163-82.6(d), 163-

82.20(g), (h); Registering to Vote in North Carolina, N.C.

State

Bd.

of

Elections,

https://www.ncsbe.gov/Voters/Registering-to-Vote

(last

visited June 3, 2020); see also N.C. Gen. Stat. § 163-82.6(c)

(voter registration via original form); id. §§ 163-82.20–

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82.23 (agency registration); id. § 163-82.19 (DMV registration). Online registration, moreover, is available only to DMV customers, and until recently required voters to complete a DMV transaction, such as a license renewal, at the same time. See Riggs Decl. ¶ 21. The only alternative for voters to register within 25 days of an election is same-day registration during early in-person voting, which is available until the last Saturday before the election. See N.C. Gen. Stat. § 163-227.2(b).
In light of the COVID-19 pandemic North Carolina’s 25day registration deadline and failure to provide broader online voter registration severely burden the right to vote. The COVID-19 pandemic has limited voter registration opportunities. Like other voter registration organizations, LWVNC has reduced or canceled its in-person voter registration initiatives, Nicholas Decl. ¶ 8, 13; Lopez Decl. ¶ 20–21, and the DMV and state agencies have closed or limited in-person access. Riggs Decl. ¶ 11. These conditions have prevented voters from registering for the November 2020 election, as indicated by the dramatic drop in voter registration rates compared to the last presidential election year. January 2020 started with a 162% increase in
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registrations in comparison to 2016, but comparative rates have fallen to -10% for February, -14% for March, and -50% for April. Ketchie Decl. ¶ 4.
Plaintiff LWVNC anticipates that many voters will “seek[] to register closer to the election because of limitations on in-person voter registration efforts.” Nicholas Decl. ¶ 8. If enforced, the 25-day registration deadline will seriously hinder LWVNC’s purpose to promote voter registration, especially given that the fail-safe option of registering during early voting is no longer viable for voters at high risk from COVID-19. Nicholas Decl. ¶ 8. Voters who could register online through the DMV are generally unaware that they no longer need to complete a “transaction,” and thus the 25-day deadline for DMV registration similarly hinders the efforts of LWVNC to educate and help voters register leading up to the election. Nicholas Decl. ¶ 9. DemNC also traditionally receives many calls to its hotline during the early voting period about voter registration, and traditionally recommends same-day registration to voters, which is not an option for many voters during the pandemic. Lopez Decl. ¶ 21. Additionally, Defendants’ failure to provide online registration through other agencies beyond the
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DMV, such as agencies administered by Defendant DHHS, likewise hinders LWVNC’s efforts to promote registration online (in lieu of its in-person events) and renders DemNC’s advising efforts more difficult. Nicholas Decl. ¶ 10; Lopez Decl. ¶ 20.
The burdens discussed above are not justified by a legitimate or important state interest while COVID-19 persists. North Carolina already allows for same-day registration at one-stop early voting sites up until the Saturday before Election Day, and if needed, supplemental poll books can be printed for Election Day. Despite once having online voter registration systems “ready to test and roll out,” North Carolina still fails to offer broader online registration—with no justification. Bartlett Decl. ¶ 15a. And any purported state interest would pale in comparison to the extremity of the situation, as demonstrated by the unprecedented decline in registration numbers. Accordingly, the voter registration deadline must be extended until the Saturday before the election, and Defendants must offer broader online registration through DHHS. These measures will ensure that voters have adequate opportunities to
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register this year and will reduce the demand for in-person registration during early voting.
ii. Absentee Ballot Requirements COVID-19 has caused Defendant SBE to anticipate a dramatic increase in mail-in absentee voting in 2020. Riggs Decl. ¶ 3. But North Carolina’s election laws contain restrictions on absentee voting that will impermissibly force voters to choose between voting and protecting their health. The State also lacks crucial mechanisms for guaranteeing that the mail-in absentee ballots of eligible voters will be counted. Burdens on Requesting and Submitting Absentee Ballots North Carolina’s election code and administration presents numerous burdens on mail-in absentee voting. These include: (i) requiring voters to submit a completed State Absentee Ballot Request Form to their county board of elections in order to receive an absentee ballot, pursuant to N.C. Gen. Stat. § 163-230.2(a), (e)(1), without allowing for voters to request absentee ballots by phone, email, or online (the “Form Requirement”); (ii) allowing only a “voter’s near relative or verifiable legal guardian” or multi-partisan assistance teams to help voters complete and deliver an
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absentee ballot request form, pursuant to N.C. Gen. Stat. §
163-230.2 (e)(2) (the “Organizational Assistance Ban”);4
(iii) requiring individuals voting an absentee ballot to do
so either “[i]n the presence of two persons who are at least
18 years of age” (among other requirements),5 or in the
presence of a notary public, pursuant to N.C. Gen. Stat. §
163-231(a) (the “Two Witness Requirement”); and (iv) failing
to provide for contactless drop boxes for voters to deliver
absentee ballots.
In light of the COVID-19 pandemic, these requirements
each impose a severe, unjustified burden on Plaintiffs’ right
to vote because complying with these provisions would require
voters to risk their health by violating social-distancing
directives and self-quarantines. Specifically, the Form
4 Voters requiring assistance to complete the absentee ballot request form due to blindness, disability, or inability to read or write may request another person if “there is not a near relative or legal guardian available to assist that voter.” N.C. Gen. Stat. § 163-230.2(e)1. However, there is no exception for those who require assistance with returning the request form by reason of their blindness, disability, or inability to read or write. See id. § 163-230.2 (e)(4). 5 Other restrictions include prohibiting owners, managers, directors, employees of any hospital, clinic, nursing home, or rest home from witnessing for a voter who is a patient or resident. See N.C. Gen. Stat. §§ 163-226.3(a)(4) and 163237(b)(1).
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Requirement means that voters like Plaintiff Peggy Cates, who lacks means to print the request form, will be unable to request an absentee ballot while social distancing; they will have to seek help from others, whereas they could make such a request by alternative means if the form were not required. Cates Decl. ¶ 8. Plaintiff LWVNC has already received similar reports from members and others who have no way to download and print the request form. Nicholas Decl. ¶ 14.
The Organizational Assistance Ban augments these challenges, preventing organizations like LWVNC from helping voters to correctly complete and deliver request forms. This process can be “particularly difficult for those who are selfquarantining and do not have access to envelopes, postage, or secure USPS mail pick-up.” Nicholas Decl. ¶ 14. Recent national polls indicate that a substantial number of voters are not confident that they understand the process of voting by mail. Gronke Decl. ¶ 53. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley, who all intend to vote by mail-in absentee ballot, will be restricted in terms of whom they can receive assistance from. Clark Decl. ¶ 10; Cates Decl. ¶ 9– 10; Edwards Decl. ¶ 10; Priddy Decl. ¶ 5, 8; Bentley Decl. ¶ 7. The Organizational Assistance Ban thus prevents voters
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from receiving needed assistance to navigate the ballot request process even though this assistance is crucial at this time.
The Organizational Assistance Ban also severely hinders the work of LWVNC and similar organizations to help those wishing to vote by mail, a population that will dramatically increase this year with an influx of voters who have never voted by mail. Nicholas Decl. ¶¶ 13–14; see also Lopez Decl. ¶ 24. The Ban impedes LWVNC’s educational mission and message of participation in voting, its ability to build relationships and associate with voters, and most importantly, its mission of promoting voter participation and civic engagement. Nicholas Decl. ¶ 14. Additionally, the multi-partisan assistance teams cannot remedy these barriers in certain North Carolina counties, where their availability has been inadequate under the best of circumstances. See Riggs Decl. ¶ 12. For similar reasons, Susan Schaffer and others who (separate from LWVNC) have previously assisted voters in requesting and completing absentee ballots will be prevented from doing so. Declaration of Susan Schaffer (“Schaffer Decl.) ¶¶ 4–7.
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The Two Witness Requirement also presents an insurmountable barrier to voting by mail for many voters in North Carolina. Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins are all eligible North Carolina voters who are at high risk of developing severe complications from COVID-19 and therefore need to vote by mail to safeguard their lives and the health and well-being of their family members or co-habitants. Clark Decl. ¶¶ 2, 4–6; Cates Decl. ¶¶ 2, 4; Edwards Decl. ¶¶ 5–6; Priddy Decl. ¶¶ 4–5; Bentley Decl. ¶¶ 2, 4–7; Hutchins ¶ 6. Following advice from medical professionals or the CDC, these Plaintiffs have quarantined themselves in their homes, either alone, Cates Decl. ¶¶ 6, 9– 10; Bentley Decl. ¶¶ 1, 4, or with one other individual, Clark Decl. ¶¶ 6–7; Edwards Decl. ¶¶ 1, 6; Priddy Decl. ¶¶ 1, 5. Plaintiff Hutchins is under quarantine in a nursing home due to the pandemic and the residents’ vulnerability to COVID19. Hutchins Decl. ¶ 6. These Plaintiffs have no way to safely comply with the two-witness requirement. As a result, they will be forced to choose between exercising their right to vote and risking their health by interacting with a witness. Putting Plaintiffs to this choice constitutes a severe burden on their right to vote.
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These Plaintiffs are just a few among many in North Carolina. According to the U.S. Census, there are 1,113,548 single-member households in North Carolina, 37% of which are occupied by someone 65 or older, in addition to 1,388,442 two-person households (who would similarly be unable to meet the Two Witness Requirement without contact with an adult outside of their household).6 In addition to bringing the voter in close proximity to others, the Two Witness exposes them to the risks of surface contamination and transmission of COVID-19 via the dispersion of respiratory droplets and aerosolization. Murray Decl. ¶¶ 8, 24. The alternative of obtaining a notary public’s signature does not alleviate this issue since the recent remote-notarization provisions in North Carolina’s COVID-19 response bill specifically exempted absentee ballots. Riggs Decl. ¶ 13. For higher-risk voters, this burden is especially severe and must be justified by and narrowly drawn to a compelling interest and the law.
Finally, the SBE Defendants’ failure to provide contactless drop boxes for absentee ballots creates an
6 Table S2501, Occupancy Characteristics, American Community Survey 2014–2018, U.S. CENSUS BUREAU, https://data.census.gov/cedsci/table?q=S2501&g=0400000US37& tid=ACSST5Y2018.S2501.
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additional burden on voters. Drop boxes would allow voters without access to postage and USPS pick-up to securely deposit their ballots without breaking social distancing guidelines, and would further reduce the strain on North Carolina’s mail infrastructure. The latter is not a merely theoretical concern: mail-in ballots must be postmarked on or before Election Day and delivered no later than 5:00 pm on Election Day, or returned to the county board of elections (not a polling location) no later than 5:00 pm on Election Day. Voters such as Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins who intend to vote by mail will have to rely on USPS to safely submit their ballots. North Carolina’s failure to provide drop boxes will likewise strain Plaintiff DemNC’s resources to “assist voters (in a legal way) to find a way to return their ballots if they lack stamps or financial resources.” Lopez Decl. ¶ 26. The anticipated influx of mailin ballots means that the USPS will have to handle an unprecedented volume of absentee ballots unless contactless drop boxes are provided. Furthermore, other states, including Oregon, have successfully used drop boxes and North Carolina can easily implement a similar program. Bartlett Decl. ¶ 24.
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These Burdens Are Not Justified By The State’s Interest In Fraud Prevention
In the midst of this public health crisis, no legitimate or important state interest justifies the burdens placed on Plaintiffs’ right to vote. To the extent the SBE Defendants invoke an interest in election security and fraud prevention, the challenged restrictions are neither justified by that interest nor narrowly drawn to advance it.
The state’s lawyers will likely attempt to defend some or all of these restrictions by citing the 2018 absentee ballot fraud conspiracy in 9th Congressional District (the “Dowless Scheme”). While states have an interest in ensuring the legitimacy of their elections, see Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008), the AndersonBurdick inquiry calls for a balancing of burdens against interests, not merely the naming of a legitimate one. See, e.g., Norman v. Reed, 502 U.S. 279, 289 (1992). The regulation must be proportionate to the problem.
The COVID-19 pandemic has caused these provisions to burden voters to an unprecedented degree, both in terms of risk (given the severe impact COVID-19 can present to all individuals and particularly those with underlying health
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issues) and in scale (given the expected increase in infection rates throughout the fall). The Form Requirement, failure to provide alternative means to request absentee ballots by phone, email, or online, and failure to provide contactless drop boxes have no clear connection to preventing voter fraud yet will significantly impair certain voters’ ability to vote by mail during an election when more voters than ever before will seek to do just that.
The Organizational Assistance Ban was passed in the wake of the Dowless Scheme and therefore has some connection to preventing voter fraud. See An Act to Amend the Laws Governing Mail-In Absentee Ballots (“SB 683”), S.L. 2019-239, § 1 (Nov. 6, 2019). However, its restrictions are not narrowly drawn nor necessary because the state still can—and already does— achieve its anti-fraud goals in other, less burdensome ways by: (i) requiring voters to submit one of their North Carolina driver’s license or state ID number or the last four digits of their Social Security Number to request an absentee ballot, see N.C. Gen. Stat. § 163-230.2(a)(4), (f), (which could still be required for requests made by phone, email, or online); (ii) requiring the same as well as a certification under penalty of perjury by the voter on the absentee ballot itself,
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see, e.g., Riggs Decl. ¶ 14; (iii) making the identities of
absentee ballot requestors confidential until Election Day,
see N.C. Gen. Stat. § 163-228(c); and (iv) enhancing the
penalties for certain absentee-ballot-law violations and
criminalizing any receipt of payment, failure to deliver, or
copying of information from an absentee ballot request or
application. See N.C. Gen. Stat. § 163-237.
In particular, making absentee ballot requests
confidential (item (iii) above) prevents those trying to
commit fraud, such as Dowless, from targeting individuals who
have requested absentee ballots. As Mr. Tutor explains,
Mr. Dowless’ illegal mail-in absentee ballot fraud enterprise was almost totally dependent on his daily access to the names and addresses of those who requested absentee ballots from the Bladen County Board of Elections. Mr. Dowless was known to have had a very long and cordial relationship with the staff at the Bladen County Board of Elections. He would either call the county board staff or come by on a daily basis to get the list of absentee ballot requests. At that time, the names and addresses of those requesting a mail-in absentee ballot were public record.
Now that the law has been changed so that the identities of voters requesting mail-in absentee ballots is not a public record until Election Day, I do not believe anyone can fraudulently manipulate the system as Mr. Dowless did.
Tutor Decl. ¶¶ 6–7.
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Although the Supreme Court has recognized fraud prevention as a legitimate goal, it has twice struck down voting requirements because oath requirements and other antifraud measures already fulfilled the same purpose. In Dunn v. Blumstein, the Court noted that Tennessee could prevent nonresidents from fraudulently voting in its elections by imposing an oath requirement and implementing cross-checks. 405 U.S. 330, 346, 348 (1972). See also Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250, 267–68 (1974) (holding that state agencies managed to prevent fraud without using durational residency requirements); Harman v. Forssenius, 380 U.S. 528, 543 (1965) (rejecting Virginia’s argument that requiring either a poll tax or a certificate of residence promoted administrative efficiency in voting, in part because 46 other states were able to verify voters’ addresses without these requirements).
The Organizational Ban also imposes greater restrictions on completing and submitting absentee ballot applications than exist for returned, completed absentee ballots, for which a voter may obtain assistance from a third party who is not a near relative or legal guardian. See N.C. Gen. Stat. §§ 163-226.3(a), 163-229(b)(4), 163-231(a). It is difficult
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to ascertain how restrictions on application assistance could be justified where restrictions on ballot assistance are not necessary.
Similarly, the Two Witness Requirement does little to prevent fraud while creating mass disenfranchisement. The U.S. District Court for the District of South Carolina recently considered a similar Anderson-Burdick undue burden challenge to a single-witness requirement for mail-in voting and concluded that plaintiffs were:
likely to prevail on their constitutional challenge to the Witness Requirement under the Anderson-Burdick balancing test because the character and magnitude of the burdens imposed on [plaintiffs] in having to place their health at risk during the COVID-19 pandemic likely outweigh[s] the extent to which the Witness Requirement advances the state’s interests of voter fraud and integrity. Thomas v. Andino, No. 3:20-cv-01552-JMC, 2020 WL 2617329, at *21 (D.S.C. May 25, 2020). The court placed particular emphasis on South Carolina Election Commission Executive Director Marci Andino’s candid statement that “the witness signature offers no benefit to election officials as they have no ability to verify the witness signature.” Id. at *19– 20; see also League of Women Voters of Okla. v. Ziriax, No. 118765, 2020 WL 2111348, at *1 (Okla. May 4, 2020) (enjoining absentee ballot notary requirement); Libertarian Party of
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Ill. v. Pritzker, No. 20-CV-2112, 2020 WL 1951687, at *4 (N.D.
Ill. Apr. 23, 2020) (enjoining portions of signature
requirement for potential candidate ballot eligibility
because they presented “insurmountable hurdle” during
pandemic).
Any purported reliance by Defendants on the Dowless
Scheme to justify the Two Witness Requirement is unavailing:
the Two Witness Requirement was enacted in 2013, see 2013
N.C. HB 589 § 4.4 (enacted Aug. 12, 2013), years before the
Dowless Scheme and thus failed to prevent it. Former Lead
Investigator for Defendant SBE Marshall Tutor explains in his
declaration that the two-witness signature requirement is not
a particularly effective anti-fraud measure:
I do not believe a two-witness signature requirement in any way prevents potential fraud such as that conducted by Mr. Dowless’ illegal ballot fraud activities. In my 15 years’ experience as an investigator with the State Board of Elections, I cannot think of a time or situation in which two absentee ballot witness signatures would have prevented absentee ballot fraud.
Declaration of Marshall Tutor (“Tutor Decl.”) ¶ 8. Former
Executive Director of the N.C. State Board of Elections
similarly explains:
Other measures, such as fining violators, suspending voting rights and electioneering for a period of time, or incarcerating violators, would be much more
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effective in deterring voter fraud than imposing a blanket two-witness requirement that will be an unnecessary barrier to many eligible voters.
Bartlett Decl. ¶ 28. Similarly, DemNC is aware through
its research and advocacy that election fraud is “quite
rare, and that the issues raised by the 2018 case have
to do with enforcement of laws that were already in place
prior to 2018, and with enforcement, surveillance and
monitoring of election irregularities can suss out and
address these issues.” Lopez Decl. ¶ 30.
Even if it did advance an interest in preventing fraud,
the two-witness requirement is not narrowly tailored,
especially in light of the other anti-fraud measures in place
and listed above. As the court in League of Women Voters of
Virginia v. Virginia State Board of Elections recently
explained when considering a single witness requirement:
In ordinary times, Virginia’s witness signature requirement may not be a significant burden on the right to vote. But these are not ordinary times. In our current era of social distancing-where not just Virginians, but all Americans, have been instructed to maintain a minimum of six feet from those outside their household-the burden is substantial for a substantial and discrete class of Virginia’s electorate. During this pandemic, the witness requirement has become both too restrictive and not restrictive enough to effectively prevent voter fraud.
On the one hand, the measure is too restrictive in that it will force a large class of Virginians to face the choice between adhering to guidance that is meant to
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protect not only their own health, but the health of those around them, and undertaking their fundamental right-and, indeed, their civic duty-to vote in an election. The Constitution does not permit a state to force such a choice on its electorate.
No. 6:20-CV-000024, 2020 WL 2158249, at *8 (W.D. Va. May 5,
2020) (internal quotation marks and citations omitted).
Finally, the witness certifications themselves do not
call for the printed name of the witnesses, a glaring omission
that further undermines the certification’s use as an anti-
fraud tool. Accordingly, witness certifications function as
placebos. They have a psychological benefit, but recent
history has shown that they are not particularly effective
fraud deterrence, prevention, detection, or prosecution
tools. Accordingly, the Two Witness Requirement should be
suspended for the November election.7
7 Should the Court seek to craft a remedy tailored to voters facing the most serious risks of severe illness, Plaintiffs offer two alternatives to the Two Witness Requirement: (i) permitting voters to submit a certification with their absentee ballot affirming their inability to safely obtain a witness requirement following reasonable efforts, and/or (ii) permitting individuals to remotely witness absentee ballots remotely (e.g., via videoconference), and requiring only that voters record the name and address of the witness without requiring the witness’s wet-ink signatures. See Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 201538 & 20-1546, at *4 (7th Cir. Apr. 3, 2020), stayed in part, No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020). At
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Additional Burdens To Absentee Voting The failure by Defendants to ensure voters have an
opportunity to cure deficient absentee ballot requests or ballots, or to submit a FWAB as an alternative of last resort to cast their votes should they fail to receive absentee ballots in time, present additional burdens to the right to vote in North Carolina. In the March 2020 North Carolina primary, almost 15 percent of submitted absentee mail-in ballots were rejected. Ketchie Decl. ¶ 5. Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins all intend to vote by mail-in absentee ballot, some for the first time, see e.g., Cates Decl. ¶ 8, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. There is no guarantee they will be notified or given the opportunity to cure these errors. Plaintiff LWVNC will have to redirect its limited resources toward ensuring that the voters it assists are following all procedures precisely, all while navigating the Organizational Assistance Ban. Nicholas Decl. ¶ 18. Plaintiff DemNC works in
bare minimum, Plaintiffs respectfully request the Court enjoin the requirement for a second witness, thereby requiring voters to only obtain one witness.
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many of North Carolina’s 100 counties and, without a uniform procedure for county boards to assist voters with curing their absentee ballots or request forms, will require them to spend more time helping individual voters from varying counties to successfully vote by mail. Lopez Decl. ¶ 27. In light of the anticipated dramatic increase in the use of absentee ballots and the Organizational Assistance Ban, there is a heightened risk that voters new to mail-in absentee voting will fail to follow the proper procedures. By lacking a procedure for voters to cure deficiencies, North Carolina’s election code risks disenfranchising vast numbers of absentee voters.
Similarly, the importance of providing the FWAB as a back-up is underscored by the recent evidence out of Wisconsin, Ohio, and Pennsylvania, where state and local election officials, as well as the USPS, failed to timely deliver thousands of absentee ballots to voters in the mail during a spring election with significantly lower-turnout elections than the November presidential election will be. Gronke Decl. ¶¶ 55, 60. Given the anticipated ten-fold increase in use of absentee mail-in ballots, it is likely that many North Carolina voters will likewise receive their ballots too late to cast them. Those voters who timely request
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an absentee ballot, such as Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins who all intend to vote by mailin absentee ballot, but do not receive their ballots in time to vote and drop them off or mail them by Election Day will be disenfranchised unless they are permitted to use the FWAB as an alternative of last resort to cast their votes. Plaintiff DemNC also anticipates a significant diversion of resources to help voters get last-minute absentee request submitted without the availability of the FWAB failsafe measure. Lopez Decl. ¶ 27.
There are no legitimate state interests for Defendants’ failure to remedy these restrictions to absentee voting during the ongoing health crisis. It’s not clear what, if any, interest would be served in requiring counties to provide voters with an opportunity to cure absentee ballots and requests forms. As for FWABs, these are already available to military and overseas citizens pursuant to the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. § 20301 et seq. This law provides that military and overseas voters must be permitted to cast FWABs as an “Official Backup Ballot,” Riggs Decl. ¶ 15,or “back-up measure,” to vote in federal races if they do not receive their regular absentee
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ballot. 52 U.S.C. §§ 20302(a)(3), 20303(a)(1). FWABs are then “submitted and processed in the manner provided by law for absentee ballots in the State involved.” 52 U.S.C. § 20303(b). Even if these burdens to voting did serve a legitimate state interest, the need for these failsafe options during the COVID-19 pandemic would far outweigh any such interest where voting by mail is of paramount importance.
iii. In-Person Voting Restrictions While use of mail-in absentee voting is projected to increase ten-fold, a majority of voters are projected to still rely on in-person voting options in the November election. North Carolina’s electorate has expressed a clear preference for in-person voting, with just 4 percent of voters casting mail-in absentee ballots in the 2016 general election. Ketchie Decl. ¶ 6; Gronke Rep. ¶ 15. As a result, North Carolina has not built the infrastructure to accommodate such a dramatic increase in voter demand for absentee mail-in ballots without overloading current systems and causing mass disenfranchisement. Gronke Decl. ¶¶ 15, 18. Accordingly, inperson voting must be preserved as a safe alternative to mailin ballots.
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The CDC has issued guidance recommending election officials to “reduce crowd size at polling stations” and take other action to ensure safe in-person voting options in light of COVID-19. Riggs Decl. ¶ 16. Contrary to this guidance, North Carolina’s election code has two provisions that have already hindered—and will continue to hinder—county boards in providing safe, free, and fair in-person voting options: (i) the requirement pursuant to N.C. Gen. Stat. § 163-42(b) that a majority of poll workers reside in the precinct where they serve on Election Day under (the “Majority Precinct Requirement”); and (ii) the requirement pursuant to N.C. Gen. Stat. § 163-227.6(c) that all early voting sites must be open during uniform hours and all sites other than the county board office must be open 8:00 a.m. to 7:30 p.m. (the “Uniform Hours Requirement”).
The burden of these provisions on the right to vote is already apparent. As of May 14, 2020, eight county boards have moved to eliminate 64 precincts for the upcoming Congressional District 11 Second Republican Primary, with several citing a lack of poll workers as the reason for consolidation. Riggs Decl. ¶ 20. In a letter to General Assembly leadership, county board members from Congressional
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District 11 conveyed that eliminating the Majority Precinct Requirement “would significantly help us staff polling places in these challenging times.” Riggs Decl. ¶ 5. Eliminating the Majority Precinct requirement is likewise required to prevent the closure of polling locations in the November election in light of the anticipated persistence of COVID-19 this fall and the advanced age of poll workers. In the 2014 general election, over 60 percent of North Carolina poll workers were 61 years of age or older and, as a result, a significant portion of poll workers are in the 65-years-old-plus CDC risk category. Riggs Decl. ¶ 17. Similarly, the Uniform Hours Requirement has already proven to cause polling locations to close. After North Carolina imposed this requirement in June 2018, the costs of implementing this measure caused 43 counties to reduce the number of early voting sites in the 2018 general election compared to 2014 and over two-thirds of counties to reduce weekend hours. Lopez Decl. ¶ 7; Riggs Decl. ¶ 18—19.
The precinct consolidation that will result from enforcement of the Majority Precinct and Uniform Hours Requirements will cause a severe burden on the right to vote in North Carolina. Gronke Decl. ¶ 28. Voters who need to vote
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in person, like Plaintiff Permar, will be confronted with confusion as to their voting location, increased travel time to get there, as well as long lines and crowds that will put them at greater risk of contracting COVID-19. Permar Decl. ¶ 7–10. Closures of polling places accessible by public transportation will also jeopardize the ability of those who rely on public transportation to reach polling locations, like Plaintiff Permar. Id. at ¶ 7. Additionally, Plaintiff LWVNC will have to divert its limited resources toward recruiting poll workers from within precincts and to alerting its members and those in their communities about precinct closures, Nicholas Decl. ¶¶ 20–21, and Plaintiff DemNC will have to spend more time advocating for early voting site sand days if the Uniform Hours Restriction is enforced. Lopez Decl. ¶ 28.
These anticipated barriers to voting are not speculative. The reductions in polling place locations in the recent Wisconsin primary caused voters to wait two to three hours to cast a ballot in some locations. Gronke Decl. ¶ 46. In North Carolina, there are over 200 precincts with over 5,000 voters, Ketchie Decl. ¶ 7, and this number only stands to increase with precinct closures. These precincts especially will
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experience long lines. Bartlett Decl. ¶ 27. These factors— inconvenient polling places, long lines, and less accessible voting locations that require voters to travel longer distances—already present obstacles to voting under ordinary circumstances. Gronke ¶ 25; Lopez ¶ 14; Bartlett Decl. ¶ 17. These obstacles will only be exacerbated during the current pandemic, when social distancing is required for safe election administration. Consistent with the anticipated impact of these provisions, Defendant Bell requested a change in state law to allow county boards to recruit and train poll workers county-wide and to allow count boards of election “flexibility to determine hours because they are affected differently by, and respond differently to, the COVID-19 pandemic.” Riggs. Decl. ¶ 3.
Individuals accustomed to early voting may very well be deterred by crowding and the inherent heightened risk of infection; they will thus be forced to choose between risking their health to cast a ballot or foregoing their right to vote. Accordingly, these provisions present a severe burden to these Plaintiffs and the rights of voters who rely on inperson voting. See Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969) (finding that the defendant’s failure to provide
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adequate voting facilities despite their foreknowledge of precinct consolidations deprived voters of their constitutional rights); League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (finding long lines and inadequate voting machines severely burdened Ohio voters’ right to vote).
It is unclear what legitimate, let alone important, state interest could be furthered by the Majority Precinct and Uniform Hours Requirements, particularly when the shortage is already dire. In the midst of this ongoing public health crisis, there is no state interest in enforcing this requirement that justifies these burdens placed on Plaintiffs’ constitutional right to vote.
In addition to the above restrictions, the SBE Defendants has imposed further burdens on the right to vote by failing to provide an accessible, centralized way for voters and advocates to monitor precinct consolidations, and failing to require counties to provide poll workers and voters with PPE for use during in-person voting for the 2020 general election. These failures add cumulatively to the panoply of restrictions on eligible voters wishing to cast a ballot in person. See Clingman v. Beaver, 544 U.S. 581, 607–08 (2005)
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(“A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition.”) (O’Connor, J., concurring).
As for precinct consolidation, each county board must give notice at least 45 days before the election when altering or consolidating precincts by posting notice in a generally circulated newspaper and on the door of the county courthouse and county board, and mailed to the chairmen of every political party in the county. See N.C. Gen. Stat. § 163128(a). However, voters only need to be notified of changes in their particular precinct 30 days before an election. Id. Accordingly, North Carolina’s failure to provide an accessible, centralized way in which voters and advocates can monitor precinct consolidation is a severe burden on the right to vote in light of the expected volume of changes. Limited access to this information will impede and confuse voters trying to determine where and how best to vote in-person, including voters like Plaintiff Permar, who must vote in person and must ensure she is able to vote at a time that is in line with her work schedule. Permar Decl. ¶¶ 1, 9. As a central hub for voter information, Plaintiff DemNC will need
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to redistribute resources in order to adequately and timely inform voters about precinct consolidations absent a centralized access to this information. Lopez Decl. ¶ 14–15.
In addition, the SBE Defendants must require counties to provide PPE to ensure the safety of voters and poll workers. Such PPE should include protective masks and gloves for poll workers and/or voters, separation shields, antiseptic wipes for equipment, and single-use pens, all of which will help prevent voters such as Plaintiff Donna Permar, who must vote in person, Permar Decl. ¶ 10, and poll workers from infection. In conducting its Election Protection hotline and pollmonitoring program, DemNC volunteers will almost certainly be asked about PPE, who has it, and how to secure it if is not provided. Lopez Decl. ¶ 24. In addition to presenting a risk to voters’ health, the failure in the recent Wisconsin primary to provide supplies to protect election workers caused poll worker shortages and, as a result, localities to severely limit or close early voting locations. Gronke Decl. ¶ 43. The reductions in polling place locations also caused voters to wait two to three hours to cast a ballot in some locations, thus compounding issues of crowding and risks of infection. Id. ¶ 46. Finally, the need for a requirement that counties
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provide PPE can hardly be in dispute where Defendant Bell stated that she intended already to order PPE for counties holding the second Republican primary election. Riggs Decl. ¶ 23. The same measures should be taken for the November election.
In the midst of this ongoing public health crisis and the rapid changes to election plans it is forcing, there is no state interest in denying easy access to precinct consolidation information or failing to require counties to provide PPE that justifies the burden placed on Plaintiffs’ constitutional right to vote.
As set forth above, Plaintiffs are likely to succeed on the merits of proving that these various restrictions on voter registration, absentee by-mail voting, and in-person voting, present severe burdens to the right to vote in violation of the First and Fourteenth Amendments that are not justified by any state interests, compelling or otherwise, in light of COVID-19. Even if purported to serve legitimate state interests, such as preventing voter fraud, these measures are not narrowly tailored in light of COVID-19. Although true even when taken individually, even if these restrictions were individually defensible they present a “panoply of
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regulations” with the “combined effect of severely restricting participation and competition.” Clingman, 544 U.S. at 607–08 (O’Connor, J., concurring).
B. Unconstitutional Condition on the Right to Vote North Carolina’s election laws and procedures are not designed to facilitate safe, fair, and free elections during such a public health crisis, and the legislature has failed to take action to remedy this situation. Given the rapidly spreading infection, North Carolina’s current election laws will force voters to choose between exposing themselves to severe risks to their health and exercising their constitutionally-protected right to vote. This forced choice unlawfully compels North Carolina voters to forfeit their constitutionally-protected right to bodily integrity in order to exercise another constitutional right. As the U.S. Constitution forbids undue burdens on the right to vote, so does it prohibit states from forcing individuals to choose between their rights. Defendants’ enforcement of restrictions on mail-in absentee voting outlined in the sections above force mail-in absentee voters to relinquish their Fourteenth Amendment right to bodily integrity in order to exercise their First and Fourteenth
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Amendment-protected right to vote. Forcing voters to forfeit their right to bodily integrity violates the Fourteenth Amendment.
Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. See Simmons v. United States, 390 U.S. 377, 394 (1968) (“[I]t [is] intolerable that one constitutional right should have to be surrendered in order to assert another.”). The doctrine has also been invoked to prohibit the imposition of conditions on First Amendment-protected activities that require the forfeiture of other rights. See Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977) (finding New York law unconstitutionally required political party leaders to provide unimmunized testimony before a grand jury, forcing leaders to choose between First Amendment right of association and Fifth Amendment right against selfincrimination); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004) (“This case presents an especially malignant unconstitutional condition because citizens are being required to surrender a constitutional right—freedom from unreasonable searches and seizures—not merely to receive a
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discretionary benefit but to exercise two other fundamental rights—freedom of speech and assembly.”).
Most relevant here, the Supreme Court has invalidated voting requirements or conditions that require the forfeiture of another fundamental right. In Dunn v. Blumstein, the Court held that a one-year durational residency requirement for voter registration placed an unconstitutional condition on the fundamental right to interstate travel. 405 U.S. 330 (1972). The Court explained that “such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote.” Id. at 342. Notably, when First Amendment-protected rights such as the right to vote are at stake, it is irrelevant whether the government intended to coerce the voter into forfeiting a constitutional right. See Bourgeois, 387 F.3d at 1324–25 (“[T]he very purpose of the unconstitutional conditions doctrine is to prevent the Government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights.” (emphasis added)).
Courts evaluate these claims by looking to the constitutional standard for the right that Plaintiffs are coerced to surrender. “[W]hen a condition on a government
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benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). In Dunn, the durational residency requirement for voter registration was subjected to strict scrutiny because fundamental voting and interstate travel rights were implicated: “In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.” 405 U.S. at 335; see also Shapiro v. Thompson, 394 U.S. 618, 634, 638 (1969) (“Since the classification [for welfare eligibility] here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.”).
This case implicates Plaintiffs’ rights to bodily integrity, which is guaranteed by the Fourteenth Amendment’s Due Process Clause. Government actions that threaten the right to bodily integrity are subject to strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). In Guertin v. Michigan, which concerned the Flint water
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crisis, the court recognized that the Sixth Circuit articulated the following standard: “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” 912 F.3d 907, 919, 921–22 (6th Cir. 1998); cf. id. at 921 (“[A] government actor violates individuals’ right to bodily integrity by knowingly and intentionally introducing life-threatening substances into individuals without their consent, especially when such substances have zero therapeutic benefit.”).8
The Two-Witness Requirement forces voters who are at high risk of developing severe complications from COVID-19, such as Plaintiffs Cates, Clark, Edwards, Priddy, and Bentley, to choose between their right to vote and the right to bodily integrity. These voters, who have quarantined themselves in their homes to protect their health, wish to vote by mail
8 Typically, these bodily integrity cases are about prior misconduct in an action for damages, not, as here, an action for prospective injunctive relief based upon the argument that a law or policy will, in the future, violate plaintiffs’ bodily integrity. But if anything, the right to bodily integrity should be even more robust when the harm to bodily integrity arises from the face of a law—it is a small analytical hop to analogize from the cases about past official misconduct.
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because they cannot vote in person—but to do so, they must risk their health by engaging two witnesses to observe their completion of the ballot. Cates Decl. ¶¶ 10–11; Clark Decl. ¶¶ 9–11; Edwards Decl. ¶¶ 10–12; Priddy Decl. ¶¶ 8–10; Bentley Decl. ¶¶ 7–10.
Further, voting in person is not a viable alternative to mail-in voting for these at-risk Plaintiffs. See Thomas v. Andino, No. 3:20-cv-01552-JMC, 2020 WL 2617329, at *17 n.20 (D.S.C. May 25, 2020) (holding that, in light of the COVID19 pandemic, restrictions on absentee voting effectively impair and deny the right to vote because “it is relatively difficult to vote in person without risking the possibility of infection, especially for those who are more susceptible to the ravaging harms of COVID-19” and “absentee voting is the safest tool through [sic] which voters can use to effectuate their fundamental right to vote”).
As discussed above, the Two Witness Requirement does not clearly advance the state’s interest in preventing fraud, and existing anti-fraud measures more than adequately protect mail-in absentee voting, including requirements that voters submit identifying information, that they and their witnesses certify the ballot under penalty of perjury, and enhancing
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the penalties for certain absentee-ballot-law violations. See supra Section I.A.ii at pp. 1528–367; see also Dunn, 405 U.S. at 346, 348 (striking down voting requirements after finding Tennessee could prevent non-residents from fraudulently voting in its elections by imposing an oath requirement and implementing cross-checks); Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250, 267–68 (1974) (holding that state agencies managed to prevent fraud without using durational residency requirements); Harman v. Forssenius, 380 U.S. 528, 543 (1965) (rejecting Virginia’s argument that requiring either a poll tax or a certificate of residence promoted administrative efficiency in voting, in part because 46 other states were able to verify voters’ addresses without these requirements).
Accordingly, Defendants’ enforcement of the challenged restrictions on mail-in absentee voting forces Plaintiffs and the Organizational Plaintiffs’ members to forfeit their right to bodily integrity in order to exercise their right to vote in violation of the Fourteenth Amendment.
C. Violation of the Organizational Plaintiffs’ and Plaintiff Schaffer’s First Amendment Rights to Free Speech and Association
Voter assistance is critical to Organizational Plaintiffs’ speech, associational group activity and
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organizational mission. SB 683’s restrictions on the organization assisting its members and other voters with completing and submitting absentee ballot request forms thus impermissibly interferes with the Organizational Plaintiffs’ First Amendment rights to promote civic engagement and associate with their members and other voters. SB 683’s restrictions also interfere with Plaintiff Schaffer’s rights to free speech and association because she is no longer able to assist many voters who desperately need it. Schaffer Decl. ¶¶ 8–9.
There is no “doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of orderly group activity protected by the First and Fourteenth Amendments.” Kusper v. Pontikes, 414 U.S. 51, 56– 57 (1973) (internal quotation omitted). The restrictions on who can assist voters with completing and returning mail-in absentee ballot request forms stymie the Organizational Plaintiffs and their members’ core political speech and expressive conduct to engage potential voters and encourage them to vote by assisting voters with requesting and submitting absentee ballot requests. See Nicholas Decl. ¶ 6, 8, 12–14; Lopez Decl. ¶ 22.
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The Supreme Court has recognized that petition-gathering

activity is “the type of interactive communication concerning

political change that is appropriately described as ‘core

political speech.’” Meyer v. Grant, 486 U.S. 414, 422–23

(1988). Whether a voter should apply for a ballot and

ultimately participate in an election is a “matter of societal

concern that [Plaintiffs] have a right to discuss publicly

without risking criminal sanctions.” Meyer v. Grant, 486 U.S.

414 at 421; see also Buckley v. Am. Constitutional Law Found,

525 U.S. 182, 186–87 (1999) (quoting Meyer, 486 U.S. at 422).

In Meyer, plaintiffs were engaged in direct outreach to fellow

citizens to engage them in the political process by gathering

petition signatures for inclusion of a ballot question. State

law burdened their signature-gathering activity by banning

payment of petition circulators.

Applying “exacting

scrutiny,” the Supreme Court struck down this law as

“restrict[ing] political expression.” Meyer, 486 U.S. at

420–22.

As in Meyer, providing assistance to voters who need to

vote by mail to mitigate their risk of contracting COVID-19

and who are requesting a mail-in ballot for the first time

since SB 683’s enactment goes to the heart of Organizational

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Plaintiffs’ core associational rights and missions to increase civic participation and engagement, as well as Plaintiff Schaffer’s individual free speech and associational rights. Nicholas Decl. ¶¶ 6, 12–14; Lopez Decl. ¶¶ 2, 5, 10– 11; Schaffer Decl. ¶¶ 6, 9. Particularly in the pandemic context, assisting voters with filling out request forms and helping voters submit them, rather than simply pointing to blank forms, would be an important part of the LWVNC’s educational mission and the effectiveness of their message of participation. Nicholas Decl. ¶¶ 13–14. Where the LWVNC directly helps voters, this assistance has educational and communicative value, and helps it build relationships with members and other voters. Id. Voters who work with the LWVNC to submit applications, many for the first time, would be more likely to complete the process independently in the future, and more likely to vote in the following election. Id. ¶ 13. When voters cannot get needed assistance, DemNC must expend more resources explaining the process to them, including how to get a ballot. Lopez Decl ¶¶ 16, 22-24.
The restrictions on assisting voters with applying for mail ballots prevent Organizational Plaintiffs from associating with their members and other voters, limiting
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Organizational Plaintiffs’ political expression, and diminishing their ability to convey their message and further it by engaging more individuals in the political process. See Nicholas Decl. ¶¶ 12–13; Lopez Decl. ¶ 22. The speech in question is “at the core of our electoral process and of the First Amendment freedoms.” Williams v. Rhodes, 393 U.S. 23, 32 (1968). And because the restrictions interfere with core political speech, they are “accordingly ‘subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.’” Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011) (quoting Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010)).
By imposing a blanket ban on organizations like the Organizational Plaintiffs and Plaintiff Schaffer, which prevent them from assisting their members and/or voters with completing and requesting absentee ballots, N.C. Gen. Stat. § 163-23.2 is not narrowly-tailored to serve a compelling state interest. “[W]hen it comes to core First Amendment speech…the government may not use a hatchet where a scalpel will suffice.” Cross v. Mokwa, 547 F.3d 890, 903
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(8th Cir. 2008) (Bye, J., concurring in part) (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982)). Examples of more targeted provisions include the prohibition on falsification of papers with respect to fraudulent voter qualification, and on false representations to blind or illiterate voters regarding their ballots. N.C. Gen. Stat. §§ 163-274, 163-275. Accordingly, Organizational Plaintiffs and Plaintiff Schaffer are likely to succeed on their First Amendment speech and association claim.9
D. Procedural Due Process “Where the government seeks to deprive someone of a liberty interest protected by due process, due process demands that certain procedural safeguards be provided.” United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). A liberty interest that is governed by due process can be created by the U.S. Constitution or “may arise from an
9 Even if the Court were to review this restriction on Plaintiffs’ associational rights under the Anderson-Burdick framework for regulations of the election process, there is little difference between the exacting scrutiny of Meyer and the close scrutiny applied under Anderson-Burdick when considering regulations on core political speech, which are necessarily severe. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 208 (1999) (Thomas, J., concurring); see id. at 192 n.12. See infra Section 1.A.
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expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
“[P]rocedural due process requires fair notice of impending state action and an opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d 140, 146 (4th Cir. 2014) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Absent exigent circumstances, due process requires pre-deprivation procedures. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The Mathews test “set forth the familiar three-step inquiry for determining the adequacy of the opportunity to be heard,” Snider Int’l, 739 F.3d at 146, but here state and county election officials afford no process whatsoever.
Courts have held that the failure to provide voters adequate notice and an opportunity to cure amounts to a violation of voters’ procedural due process rights. Saucedo v. Gardner, 335 F. Supp. 3d 202, 217–22 (D.N.H. 2018) (applying Mathews and concluding that the state’s scheme “fails to guarantee basic fairness”). North Carolina law gives all registered North Carolina voters statutory rights to request and cast a mail-in absentee ballot that will be processed and counted, thereby vesting them with liberty
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interests. N.C. Gen. Stat. § 163-226(a). Eligible, registered voters enjoy an “individual and personal” right to vote under North Carolina law. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)). “The right to vote by absentee ballot is not, in and of itself, a fundamental right. But once the State permits voters to vote absentee, it must afford appropriate due process protections, including notice and a hearing, before rejecting an absentee ballot.” Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *5 (N.D. Ill. Mar. 13, 2006).
As enforced by Defendants, the state’s election laws do not afford mail-in absentee voters any notice of or opportunities to cure material defects in their absentee ballot request form or the absentee ballots themselves. Such material defects will result in the rejection of their request forms or absentee ballots, thereby depriving Individual Plaintiffs and the Organizational Plaintiffs’ members of their right to vote by mail. Furthermore, the lack of any uniform mechanism to cure will require LWVNC and DemNC to devote additional resources towards identifying which counties are voluntarily providing some sort of process to cure absentee ballot request forms and absentee ballots,
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educating voters on those processes, and assisting them. Nicholas Decl. ¶ 18; Lopez Decl. ¶¶ 23, 27.
Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins all intend to vote by mail-in absentee ballot, some for the first time, see e.g., Cates Decl. ¶ 8, and may well make errors on their absentee ballot request forms or absentee ballots and/or the certificate envelopes. Procedural due process requires a cure procedure for these defects. Defendants have deprived Plaintiffs of their protected interest in casting an absentee ballot by failing to provide notice and an opportunity to cure deficiencies in the request forms and ballots.
E. Violation of Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131 et seq.) and § 504 of the Rehabilitation Act (29 U.S.C. § 794)
Title II of the ADA provides that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity” such as voting. 42 U.S.C. § 12132. Similarly, section 504 of the RA requires that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in,
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be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The ADA and RA protect individuals with disabilities from being excluded from voting on the basis of their disabilities. See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 510 (4th Cir. 2016). Accordingly, Defendants are obligated to provide Plaintiffs Clark, Edwards, and Priddy with the reasonable modifications so they are afforded the same opportunity to vote as other individuals who do not have disabilities.
The SBE, which received federal funding to conduct elections, must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability. See 29 U.S.C. § 794(a). By failing to waive the two-witness requirement for absentee ballots for voters whose disabilities limit their ability to have contact with others during this pandemic, the SBE Defendants are violating the ADA and RA. Without action by this Court, vulnerable voters like Plaintiffs Clark, Edwards, Priddy, and Hutchins (the “ADA/RA Plaintiffs”) will not be able to vote this November.
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To prove a violation of Title II of the ADA and Section 504 of the RA,10 plaintiffs must show
(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program, or activity; and (3) they were denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of their disability. Lamone, 813 F.3d at 503. First, there is no question that the ADA/RA Plaintiffs have disabilities under the ADA and RA. An individual is considered disabled if he can show “(1) that he has a physical or mental impairment, (2) that this impairment implicates at least one major life activity, and (3) that the limitation is substantial.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006). ADA/RA Plaintiffs’ preexisting conditions qualify as physical impairments. Physical impairments include lung disease and diabetes, see 28 C.F.R. § 35.108(b)(2); 10 C.F.R. § 4.101, and both conditions impose a greater risk of severe illness from COVID-19. Courts around the country have also routinely held that conditions like COPD, diabetes,
10 The Fourth Circuit analyzes the ADA and RA together because “the analysis is substantially the same.” Seremeth v. Bd. of Cty. Comm’rs Frederick Cty, 673 F.3d 333, 336 n.1 (4th Cir. 2012) (internal quotation marks omitted).
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blindness, and immunodeficiency can qualify as disabilities under the ADA and RA. See, e.g., Davis v. Nat’l R.R. Passenger Corp., 733 F. Supp. 2d 474, 494 (D. Del. 2010) (COPD); Myers v. Hose, 50 F.3d 278, 282 (4th Cir. 1995) (diabetes); Lamone, 813 F.3d 494 (blindness); Bragdon v. Abbott, 524 U.S. 624 (1998) (HIV). Moreover, the CDC has deemed that individuals who have impairments such as COPD, diabetes, and organ transplants (requiring immunosuppressant medication), or are of advanced age (65 or older), such as the ADA/RA Plaintiffs, are “at higher risk for severe illness from COVID-19.” Riggs Decl. ¶ 7.
These physical impairments, in combination with the pandemic, also substantially affect ADA/RA Plaintiffs by restricting their enjoyment of at least one major life activity. Major life activities include breathing, standing, sleeping, reading, writing, walking, as well as the operation of a major bodily function, such as “function of the immune system” and respiratory and endocrine systems. 28 C.F.R. § 36.105(c)(1). Plaintiff Clark suffers from severe COPD, which interferes with several major life activities, including breathing. Clark Decl. ¶ 5. Plaintiff Edwards possesses type 1 Diabetes, a physical impairment that substantially affects
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her major bodily function through her endocrine system. Edwards Decl. ¶ 5. Plaintiff Priddy’s pre-existing conditions are physical impairments that substantially influences his major life activities because the function of his immune system is directly affected. Priddy Decl. ¶ 4. Plaintiff Hutchin’s blindness is a physical impairment that substantially influences many major life activities, such as reading, writing, and walking. Hutchins Decl. ¶¶ 4, 12. Accordingly, the ADA/RA Plaintiffs have disabilities as defined by the ADA and RA.
Second, the ADA/RA Plaintiffs are otherwise qualified to receive the benefits of a public service, program, or activity—namely, voting. Each ADA/RA Plaintiff is registered to vote this November. Clark Decl. ¶ 3; Priddy Decl. ¶ 2; Edwards Decl. ¶ 2; Hutchins Decl. ¶ 3. However, whether the ADA/RA Plaintiffs can vote in light of this pandemic will depend on whether this Court grants relief and suspends the two-witness requirement.
Third, the ADA/RA Plaintiffs are excluded from participation in and denied the benefits of voting, or are otherwise discriminated against, on the basis of their disability. Due to their conditions, the Plaintiffs Clark,
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Edwards, and Priddy cannot vote safely in person and must vote by mail. However, they are unable to safely obtain two witness signatures without ignoring the CDC’s guidance and putting themselves at unreasonable risk of contracting COVID19 and suffering serious health consequences, including death. Furthermore, Plaintiff Hutchins would like to vote by mail because his age puts him at risk of serious illness or death from COVID-19. Hutchins Decl. ¶ 6. Due to his disability, he cannot fill out and return his absentee ballot himself and needs assistance. His nursing home is closed to visitors in light of the COVID-19 pandemic and he is not able to receive assistance from his wife. Thus, he would like his nursing home staff to help him. Id. ¶¶ 10–12. However, under North Carolina law, the nursing home staff and nurses are not allowed to assist him with returning an absentee ballot request form, marking and completing an absentee ballot, and submitting an absentee ballot. See N.C. Gen. State. §§ 163226.3(a)(4)-(6), 163-230.2(e)(4); 163-231(b)(1); see also Lamone, 813 F.3d at 504 (because Maryland allowed no-excuse absentee voting, defendants violated the ADA by failing to make reasonable accommodations to allow individuals who were blind to vote by mail).
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Thus, unless this Court grants relief, by omitting the Two Witnesses Requirement and by allowing nursing home staff to assist voters fill out and submit absentee ballots, voters like the ADA/RA Plaintiffs will confront a dilemma that they should never have to face: vote and risk exposure to a highlycontagious and deadly disease, or forego voting. Indeed, it was out of concern for the pandemic that Defendant Director Bell recommended that the witness requirement be reduced or eliminated “[i]n light of social distancing requirements to prevent the spread of COVID-19.” Even if Defendants are not intentionally discriminating against individuals with disabilities, Defendants are nevertheless violating the ADA and RA because reasonable modification or accommodation claims do not require discriminatory intent. See Lamone, 813 F.3d at 510 (Maryland violated ADA for “failure to make reasonable accommodations” for visually-impaired voters even though “the record is devoid of any evidence that the defendants acted with discriminatory animus”). Furthermore, no discriminatory intent is necessary because Defendants’ policies have a disparate impact on vulnerable voters like the ADA/RA Plaintiffs. See A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 362 (4th Cir. 2008).
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Finally, Defendants will not succeed in arguing that eliminating the two-witness requirement or the prohibition on nursing staff assistance pose an undue burden. Under ADA regulations, a public entity is not required to take any action “that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.” 28 C.F.R. § 35.164. Defendants bear the burden of proving this undue burden. See id. (“[A] public entity has the burden of proving that compliance with this subpart would result in such alteration or burdens”). Eliminating the two-witness requirement is clearly not burdensome, as it merely requires Defendants to cease disqualifying absentee ballots lacking two witness signatures, make minor modifications to the ballots, and include instructions regarding the rule change. See Lamone, 813 F.3d at 508 (proposed online ballot marking tool for absentee voting for visually impaired did not pose undue burden). There can be no serious argument that eliminating the two-witness “results in a fundamental alteration in the nature” of voting. Furthermore, allowing nursing home staff to assist voters complete and submit absentee ballots cannot pose burdens on the Defendants.
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Accordingly, the ADA/RA Plaintiffs are likely to prevail on their ADA and RA claims. Defendants’ failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out individuals from participating in the November general election because of their disabilities, in violations of Title II of the ADA and Section 504 of the RA.
F. Violation of Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508)
Under Section 208, a voter who needs assistance for reason of blindness, disability, or inability to read or write (“208-covered voter”) possesses the right to choose any person other than their employer/union representative— regardless of whether the person is a near relative, legal guardian, or nursing home staff—to assist them with the voting process, including the steps necessary to obtain, cast, and submit an absentee ballot. 52 U.S.C. § 10508; OCA-Greater Houston v. Texas, 867 F.3d 604, 614–15 (5th Cir. 2017). Defendants are violating Section 208 of the VRA by preventing 208-covered voters from selecting their assistor of choice who is not their employer or union representative to assist them with submitting their absentee ballot request form (N.C. Gen. Stat. § 163-230.2(e)(4)), or with marking, completing
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and submitting their absentee ballot (N.C. Gen. Stat. §§ 163226.3, 163-231(b)(1)). States cannot “deny the assistance at some stages of the voting process during which assistance [is] needed.” S. Rep. 97-417. For Plaintiff Hutchins, applying for a mail ballot is a prerequisite to safely voting, and he requires assistance with submitting his request for a ballot, marking and completing the ballot, and delivering it. Hutchins Decl. ¶¶ 4–12. Defendants provide an exception to 208-covered voters only for completing the request form. N.C. Gen. Stat. § 163-230.2(e1). Plaintiff Hutchins is entitled to any assistor of choice other than an employer/union representative at all stages of the absentee voting process. See OCA-Greater Houston v. Texas, 867 F.3d 604, 614–15 (5th Cir. 2017). II. Absent injunctive relief, Plaintiffs will suffer
irreparable harm in the November general election. Absent an injunction suspending or modifying the challenged restrictions, voters will suffer irreparable injuries in the November general election. “[O]nce [an] election occurs, there can be no do-over and no redress.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014). For that reason, “[c]ourts routinely
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deem restrictions on fundamental voting rights irreparable injury.” Id. (collecting cases).
To demonstrate irreparable harm, a party must establish that (1) the harm is “certain and great, actual and not theoretical, and so imminen[t] that there is a clear and present need for equitable relief”; and (2) that, once incurred, the threatened harm would be “beyond remediation.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016) (internal quotation marks omitted) (alteration in original). Dr. Murray’s report demonstrates that this fall the pandemic’s transmission dynamics and the corresponding risk to voters are highly likely to be equal to or worse than the current situation. Murray Decl. ¶¶ 33, 42, 44. Absent relief from this Court, in-person and mail-in absentee voters alike will face severe risks and severe burdens in casting their ballots in person or by mail. Some may overcome these obstacles; many others will not. But these unconstitutional hardships will remain without an injunction.
Further, denial or abridgment of the right to vote in a particular election is the archetypal irreparable injury. See N.C. State Conf. of NAACP v. Cooper, 430 F. Supp. 3d 15, 51 (M.D.N.C. 2019) (“By their very nature, laws impacting the
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right to vote create the potential for irreparable harm . . . .”). Once the burdens cause a denial or undue burdening of the right to vote, this injury cannot be undone. Once the results are certified, it is nearly impossible to set aside the results of an election, and voters deprived of their voice cannot be made whole. An injury is typically deemed irreparable if monetary damages are inadequate or difficult to ascertain and, typically, there are no damages in voting rights cases. See Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
Just as individual voters face irreparable harm in November, so do organizations engaged in voter engagement like LWVNC and DemNC, as Defendants’ “actions ‘perceptibly impair[ ]’ the organization’s programs, making it more difficult to carry out its mission.” Action NC v. Strach, 216 F. Supp. 3d 597, 642 (M.D.N.C. 2016) (quoting Lane v. Holder, 703 F.3d 668, 674–75 (4th Cir. 2012)); Newby, 838 F.3d at 9 (holding that plaintiffs suffered an irreparable harm when newly enacted barriers to registering voters “ma[de] it more
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difficult for [them] to accomplish their primary mission of registering voters”).
A voter engagement and advocacy organization is also irreparably harmed when its members’ constitutional and statutory rights related to voting are unlawfully burdened and otherwise infringed. See Common Cause Ga. v. Kemp, 347 F. Supp. 3d 1270, 1295 (N.D. Ga. 2018) (holding that harm organizational plaintiff suffered was “coterminous” with harm its members would suffer if voting was made more difficult); Common Cause Ind. v. Lawson, 327 F. Supp. 3d 1139, 1154 (S.D. Ind. 2018) (holding that organizational plaintiff would suffer irreparable harm if voters were wrongfully disenfranchised), aff’d, 937 F.3d 944 (7th Cir. 2019). III. Given the dire circumstances of this deadly global
pandemic, the balance of hardships tips heavily in Plaintiffs’ favor. Many of the challenged laws in this case are quite burdensome even in normal times. As voters are now facing a virus that transmits extremely easily from person to person and can cause severe complications, lasting physical injury, and death in a wide range of people, the harm to voters far outweighs any harm to the state from the requested injunction. The injunctive relief requested seeks to strike a balance,
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and Plaintiffs have herein proposed alternative solutions that safeguard election integrity while advancing voter participation and safety. For example, Plaintiffs seek the invalidation of the double-witness requirement but have suggested no fewer than three alternative remedies that would mitigate, if not eliminate, the constitutional harm. Further, Plaintiffs also do not seek invalidation or noncompliance with other requirements of the absentee ballot envelope; rather, they seek only an option for voters to cure deficiencies. In light of the pandemic’s severe disruption to the normal course of voting and the threat it poses to every manner of voting, Plaintiffs have demonstrated why it is necessary to enjoin or modify the targeted restrictions, and how this will facilitate safe and equal participation and can be achieved without undermining the general election’s integrity. IV. The public interest strongly favors granting
Plaintiffs’ requested relief to facilitate participation in the general election. Entering a preliminary injunction would serve the public interest as well, as non-parties to this action will stand to benefit from the requested injunction. Election integrity is not only served by effective anti-fraud measures but equally,
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if not more so, by ensuring that all eligible, registered voters can make their voices heard. Indeed, courts have often said that the public interest “favors permitting as many qualified voters to vote as possible.” League of Women Voters of N.C., 769 F.3d at 247 (quoting Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012)). As this Court recently put it, “electoral integrity is enhanced, not diminished, when all eligible voters are allowed to exercise their right to vote free from interference and burden unnecessarily imposed by others.” N.C. State Conf. of NAACP, 430 F. Supp. 3d at 53. The public interest is also served by “upholding constitutional rights.” Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003).
REQUEST FOR EXPEDITED CONSIDERATION Plaintiffs respectfully request expedited briefing and consideration of this motion. As discussed supra p. 12 (Election Administration Timing), any changes to election administration must be made immediately to avoid irreparable harm, and specifically to allow for ordering and printing of election-related materials, recruitment of poll workers, and voter education regarding voting processes and election-day location information and other logistics. As Director Bell
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stated in her April 22, 2020 letter, “[b]ecause of deadlines

associated with the 2020 General Election . . . there is an

immediate need to prepare for a coronavirus response.” Riggs

Decl. ¶ 4. Accordingly, there is good cause to expedite

briefing and consideration here, and Plaintiffs respectfully

request that the Court shorten the requirements of Local Civil

Rule 7.3(f) to require Defendants’ response within 14 days of

service of this Motion and Plaintiffs’ reply within 7 days of

service of the response, and thereafter that the Court provide

expedited consideration of a hearing date and decision on

Plaintiffs’ motion.

CONCLUSION

For the reasons set forth above, Plaintiffs respectfully

request that this Court grant their Motion for a Preliminary

Injunction.

Dated: June 5, 2020.
/s/ Jon Sherman Jon Sherman D.C. Bar No. 998271 Michelle Kanter Cohen D.C. Bar No. 989164 Cecilia Aguilera D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006

Respectfully submitted,
/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707

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Telephone: (202) 331-0114 Email:
jsherman@fairelectionsce nter.org mkantercohen@fairelectionscen ter.org caguilera@fairelectionscenter .org

Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition.o rg
jeff@southerncoalition. org
/s/ George Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392) Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email:
george.varghese@wilmerh ale.com joseph.yu@wilmerhale.com stephanie.lin@wilmerhale.co m rebecca.lee@wilmerhale.com rick.ingram@wilmerhale.com

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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1), the undersigned counsel hereby certified that the foregoing Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction and to Expedite contains 14973 words (including headings and footnotes) as measured by Microsoft Word.
/s/ Allison J. Riggs Allison J. Riggs
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CERTIFICATE OF SERVICE I certify that on the 5th day of June, 2020, the foregoing Memorandum in Support for Plaintiffs’ Motion for Preliminary Injunction and Request to Expedite, and all Declarations and Exhibits thereto, was served by electronic mail to Defendants’ Counsel, Alec McC. Peters, Chief Deputy Attorney General, at the address apeters@ncdoj.gov, with consent of counsel to accept service in this manner.
/s/ Allison J. Riggs Allison J. Riggs
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs,

vs.

Civil Action

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

No. 20-cv-457

Defendants.

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INDEX OF PLAINTIFF DECLARATIONS
1. Declaration of Tomas Lopez, Executive Director of Democracy North Carolina
2. Declaration of Jo Nicholas, President of the League of Women Voters of North Carolina
3. Declaration of Donna Permar 4. Declaration of John P. Clark 5. Declaration of Margaret B. Cates 6. Declaration of Lelia Bentley 7. Declaration of Regina Whitney Edwards 8. Declaration of Robert K. Priddy II 9. Declaration of Walter Hutchins 10. Declaration of Susan Schaffer
2 Case 1:20-cv-00457-WO-JLW Document 11 Filed 06/05/20 Page 2 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LEILIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.

Civil Action No. 20-cv-457

Plaintiffs,

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES.

DECLARATION OF TOMAS LOPEZ

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I, Tomas Lopez, hereby declare as follows: I. Background 1. I am a U.S. citizen and a resident of North Carolina. I am a registered voter in Durham County, and have resided in Durham County since 2018. 2. I have served as Executive Director of Democracy North Carolina (“DemNC”) since January 2018. DemNC is a nonpartisan, nonprofit organization that works to, among other goals, protect the right to vote in our state. As part of this work, we seek to bring North Carolinians – especially historically underrepresented communities and communities of color – into the political process and encourage their participation and leadership through voting, monitoring the election process, and issue advocacy. We also author original research on election administration, help coordinate a statewide nonpartisan poll monitoring and voter assistance network, and advocate for policies and practices that we believe will increase voter access and participation. 3. In my role as Executive Director of DemNC, I am responsible for the organization’s overall operations, from serving as the chief executive official at the organization, to overseeing both operational and programmatic leaders and staff. I work with our staff and board to set strategic priorities, but I am also directly involved in programmatic work, interfacing with organizational allies and democracy advocates. I am also involved in shaping our policy advocacy and research. Additionally, I interface with election officials on a frequent basis (state more than local), but I oversee a sizable organizing and advocacy staff that interfaces with all 2
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levels of election officials (state and county). My involvement in programmatic work has afforded me direct knowledge of many of the voter protection issues that arise in this state. Since I joined the organization, I have been present at every Election Day voter assistance hotline staffing site that we and other nonpartisan organizations have collaborated to operate, and we have conducted early voting voter assistance hotline staffing out of our offices at DemNC, allowing me to see the issues faces voters and to, myself, advocate with election officials to remedy these issues. 4. Before assuming the Executive Director role at DemNC, I was a voting rights attorney at the Brennan Center for Justice at New York University, where I was involved in state and federal court litigation over election law matters, legislative advocacy on the same, and subject matter research on these topics. Prior to that, I was an attorney litigating constitutional civil rights issues affecting immigrant communities. I received my Juris Doctor from Yale in 2010. 5. DemNC has existed for nearly 30 years, and in that time has been deeply engaged in election policy issues, redistricting and campaign finance. On election and voting issues, the organization played a leadership role in the development and implementation of same-day registration, preregistration for 16- and 17-year-olds, and judicial public financing in the 2000s. Since 2010, DemNC has played a leadership role in non-partisan voter protection efforts, including poll monitoring and providing voter assistance via phone, email and text. The organization has developed a reputation for subject matter expertise in the election realm, and to this
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day, continues to release original research on election issues. Since at least 2000, DemNC has employed organizers whose job was to cultivate grassroots support for democracy reform, mobilize around political participation (both voting and otherwise), and educate and assist voters across the state. In the late 2000s, DemNC moved those regional organizers from being based out of Durham to being located in the regions in which they worked. We currently employ seven regional, full-time organizers. II. DemNC’s Work to Educate and Support Voters A. Advocacy and Research 6. As mentioned above, DemNC devotes substantial time to advocating for election reform and urging pro-voter policies at the North Carolina General Assembly, the State Board of Elections, and at many county boards of elections. It is critical to our mission that every voter be able to have easy access to the ballot box. In particular, we know the importance of in-person voting opportunities, especially for underserved communities across our state, and we recently successfully advocated for the restoration of the last Saturday of early voting. 7. Based on our original research, we have also documented the negative impact that reducing early voting opportunities can have on North Carolina’s electorate, and specifically communities of color. For example, after North Carolina enacted S325 in June 2018 mandating uniform hours across all early voting sites within each
4
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county,1 the costs of implementing this measure caused 43 counties to reduce the number of early voting cites in the 2018 election compared to 2014 and over two thirds of counties to reduce weekend hours. This disproportionately impacts Back voters, who in 2018 made up approximately 22% of registered voters but 27% of those who cast ballots on the last Saturday of Early Voting. 8. Our regular advocacy work also includes urging counties to adopt as expansive early voting plans as possible and mobilizing our advocates to turnout to county boards of election meetings to support expansive early voting plans. Before an election, we commonly submit letters to county boards of election with data and maps documenting the usage of early voting sites and days, in order to ensure that those boards understand how their decisions can make voting easier and more accessible for voters in their counties. In particular, we have been leaders in efforts to expand weekend voting in counties, including Sunday voting so that our church partners can conduct “Souls to the Polls” efforts. We planned to do this advocacy this year, before COVID-19, and still plan to do so. B. Election Protection, and Voter Assistance and Voter Education 9. Since 2010, we have devoted substantial time and staffing to voter protection efforts, including developing a statewide poll monitoring program and providing voter assistance via a non-partisan election protection hotline. We escalated those efforts even more starting in 2013, after the loss of Section 5 of the Voting Rights
1 S.L. 2018-112. As originally written, the statute removed the final Saturday of early voting beginning in 2018; this was subsequently postponed.
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Act and the passage of House Bill 589, a law passed by the North Carolina General Assembly that rolled back many of the voting reforms for which we had advocated. Over the last approximately seven years, we have worked with other non-partisan groups to fully staff a national election protection hotline with in-state North Carolina election experts. We help to recruit and train these hotline experts, and during early voting, we host them in our offices. The hotline (which we recently extended to offering text message services) is heavily staffed by DemNC staff, and that work specifically has represented a significant expenditure in both staff time and resources. 10. In the course of our hotline work, our staff are often contacted by voters with various physical impediments or health conditions that may make voting more difficult. We frequently have to assist voters in understand how to access curbside voting or, more commonly, when curbside voting is not working as intended, notify county elections officials and advocate for a solution. 11. We have also answered questions about how voters can use absentee voting by mail, a process that is cumbersome and hard to understand, especially for voters who have never used it before. We also get calls about voters inquiring as to the status of their absentee ballots, and many times we have dealt with situations where absentee mail ballots not getting to the voters that requested them, even before COVID-19. 12. DemNC staff answers hotline calls, emails and texts at times outside of normal voting days and hours, and our staff collectively spends many hours answering voter questions about where and how to vote, getting registered, and other aspects of the
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voting process. We are already receiving more calls than we would normally expect in June from voters asking about absentee voting in the fall election. 13. In addition to staffing the hotline, DemNC runs an extensive poll monitoring program, deploying volunteers to polling places across the state. DemNC recruits, trains and places volunteers to be stationed outside polling places on Election Day and during heavily-used early voting days. The purpose of putting DemNC volunteers at polling places is to provide direct assistance to voters who have issues voting and identify the issues at polling places that require additional attention. We train our volunteers on what it means to be a non-partisan poll monitor, how to provide assistance to voters, how to refer people to the hotline so that we can better gather information to use in real time to address issues that may affect other voters. In 2018, we placed 800 monitors at approximately 260 sites, which represented about 10% of all sites statewide. 14. In January 2018, DemNC issued a report, From the Voter’s View: Lessons from the 2016 Election, documenting the many issues North Carolina voters face when they go to the polls, including long lines, machine malfunctions, disability access challenges, and poll worker conduct.2 In that report, we made many findings relevant to this case. For example, we consistently found that voters who showed up to the incorrect precinct on Election Day were not afforded the opportunity to cast an “out of precinct” provisional ballot and were instead told they had to go to
2 This report is available at https://democracync.org/wpcontent/uploads/2018/01/PostElectionReport_DemNC_web.pdf
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another site. We also documented widespread problems with curbside voting – both in inadequate signage and long wait times due to inadequate staffing. In more than a dozen counties, we documented excessively long lines and wait times for voters on popular early voting days and on Election Day. 15. On voter education more broadly, we devote considerable staff time to voter education and mobilization. Through these efforts, we seek to explain the voting rules to the public, through in person trainings and through print and digital resources. We distribute these resources directly ourselves or through partners like state or regional partners, like churches. We also mobilize volunteers to contact voters, typically members of historically underrepresented communities, to encourage participation and to answer questions re: election rules. 16. In past elections, DemNC also produced a voter guide in collaboration with partner organizations, mailed to over one million North Carolina homes, with information about election rules and candidates. For example, in the 2018 general election, we printed 1.8 million of these non-partisan voter guides, which were distributed through direct mail, our organizing networks, and the efforts of partner organizations. We have limited funds with which to pay for these guides, so space is at a premium because of printing and mailing costs. When voting laws are changed or voting becomes more complicated, we will have to devote more space in the guides to explaining how to register and vote, for example, and less space providing voters non-partisan information about the candidates that will be on their ballots.
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17. DemNC has, from time to time, including in the March 2020 primary, conducted a rides-to-the-poll program.
III. COVID-19: Reforms Needed and the Impact On DemNC’s Work 18. Absent changes to make voting in a pandemic easier, DemNC is going to have to
divert significant resources to help voters problem-solve complying with existing rules: from registering to vote, to successfully requesting and submitting a valid absentee ballot, to finding a place and time to vote safely in-person. A. Voter Registration 19. DemNC has both advocated and litigated for expanded opportunities to register to vote. DemNC successfully negotiated a settlement to an action under the National Voter Registration Act filed in North Carolina in 2015, which opened the door to DMV customers who were updating their drivers’ licenses to be able to also update their voter registration both in-person and online. The success of that settlement process was followed recently by DMV allowing all of its customers to register to vote online, not just those customers executing a DMV transaction. DemNC has long recognized that easier online registration options are good for democratic participation. 20. Voter registration rates in North Carolina are falling compared to the last presidential election, and the only thing halting that precipitous decline in voter registrations is the availability of online voter registration through DMV. North Carolina Department of Health and Human Services agencies should also be offering online voter registration, and having that option available to voters would
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make our job easier, when voters call our hotline and ask how they can register to vote. 21. We traditionally receive many calls to the election protection hotline during the early voting period about voter registration. That is when many voters may think about their registration status for the first time. Those voters either may not know that they needed to register or re-register (if they had moved or been removed from the voter rolls). We would normally recommend same-day registration to these voters, but we anticipate that many voters will not be comfortable voting in person. Right now, the statutory cut-off for regular registration is 25 days before the election, but in advance of the deadline for requesting absentee ballots. An extension of the deadline for voter registration would impose minimal burdens on election officials, but offer more opportunities for registration by mail. B. Absentee by Mail 22. In addition to issues we identified in the primary and would see in a “normal” election, given the expected increase in demand in absentee voting, we expect to have to spend more time helping voters new to the process navigate absentee voting by mail. We will have to do so with the same amount of capacity that we had before this. Absent significant changes to state laws governing the requesting and submitting an absentee ballot, making it easier for voters so that they do not need to seek our assistance, we will have reduced capacity to do some of our other planned advocacy—for example, efforts to improve curbside voting or engage in broadbased civics education (a part of our long-term organizing model) to explain
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importance of voting and its positive impact. We will also have less time and fewer resources to devote to “what’s on the ballot” training. 23. Without making it much easier to request an absentee ballot and cast it without exposing others to the virus, we also anticipate having to devote valuable space in our printed voter guides to proactive problem-solving and recommendations for voters who may have trouble requesting absentee ballots or finding a witness. This is space we would devote to other topics. Importantly, that voter guide is a key part of both our voter education and mobilization efforts, and we partner with community groups (including churches and local civic groups) and other nonpartisan organizing and mobilizing groups, often led by and serving people of color, to distribute the guides both digitally and through direct in-person contact. Because of the loss of direct contact opportunities and that these partners might have constituents that have low digital use rates (i.e., older voters, lower income), we may have to spend more on direct mail to try to explain complicated rules to voters. 24. DemNC also works with numerous civic engagement groups, and we know from those partnerships that the ban on assisting voters with completing and returning absentee ballot request forms is hindering their work. Where there are fewer volunteers on the ground able to assist voters with requesting and completing an absentee ballot, we know that we will get more inquiries to the hotline about how to get an absentee ballot or why a voter’s absentee ballot never arrived. This ban strains our resources in a time we need to be putting those efforts elsewhere.
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25. Voters who cannot provide their driver’s license number, special identification card number, or last four digits of their social security number are not currently allowed, under Sec. 163-230.2, to request an absentee ballot. In her March 26, 2020, letter to the General Assembly, State Board of Elections Executive Director Karen Brinson Bell recommended that voters also be allowed to submit a copy of a Help America Vote Act (HAVA) document, as counties have reported to her problems with elderly voters who do not drive and cannot remember their social security number are having their absentee ballot requests rejected. Based on her recommendation and an expected increase in absentee by mail voting by a vulnerable population, we expect to get many more calls about this issue to the election protection hotline, and without substantial assistance from my staff and our volunteers, which again will undermine our efforts to do voter education or other advocacy, that statutory barrier will be insurmountable for voters.
26. Given that high volume of people will be voting by mail for the first time, we anticipate that voters will be calling with questions about postage and processes for returning absentee ballots. The state’s failure to provide contactless drop-boxes will likely strain our resources in assisting voters (in a legal way) to find a way to return their ballots if they lack stamps or financial resources.
27. Likewise, the amount of time-intensive research it takes to help a voter find out what happened to his/her absentee ballot is a substantial drain on our staff time and resources. The failure to provide uniform measures for an opportunity to cure a deficient absentee ballot will certainly require that we spend more time with 12
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individual voters helping them to figure out if their counties will allow them an opportunity to correct their ballot and how they can go about doing so. We work in so many different counties, and right now, most counties have different practices on whether they even let voters cure their absentee ballot, and if they do, those curative measures may vary wildly. We could spend thousands of hours researching the intricacies of each North Carolina county’s process without some uniform rule in place. Likewise, without some sort of failsafe measure in place for absentee ballot requests forms that get lost in transmission, like the state equivalent of Federal Write-in Absentee Ballot, we anticipate a significant diversion of a resources as we help voters try to get last minute absentee requests submitted. C. In-Person Voting 28. As mentioned before, DemNC’s advocacy for expansive early voting has been a key part of its work for years. Without relief from the law that requires counties to have uniform early voting hours (that is, if one site is open, all sites must be open), particularly in light of the challenge in recruiting poll workers and the revenue shortfall that many counties are experiencing, we expect that without increased advocacy from us, many counties will reduce their number of early voting sites. This loss of early voting sites and days already happened as a result of S.B. 683, and is certain to be exacerbated by a decrease in expected in-person voting. But we will need to explain to county boards (and forcefully advocate) that respecting social distancing guidelines and allowing time for cleaning materials between voters actually means that counties need to provide more voting sites and days. That is the
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only way to space out voters appropriately. If counties were allowed the flexibility to open sites when they were available and when they could secure poll workers, we would have to spend less time advocating for early voting sites and days and could devote our resources to other activities pertinent to our mission. 29. Likewise, we are fielding requests from election officials and others to help them recruit poll workers because of an anticipated shortage. Recognizing the importance of securing these workers, we are striving to incorporate recruitment into our current mobilization efforts, even though we have never done that kind of work before. But this strains our capacity and resources, and will only do more so as we get closer to the election. Right now, the law requires that a majority of poll workers on Election Day be registered voters in the precinct in which they work. Lifting that requirement, and, indeed, lifting the requirement that poll workers be residents of the county, would allow counties with older and more vulnerable populations to cast a broader net to find workers who could safely help conduct the election. D. Concerns about Election Security 30. Recently, the North Carolina General Assembly justified imposing new restrictions and criminal penalties regarding who can assist voters with requesting absentee ballots due to the voter fraud discovered in the 2018 Campaign by Republican congressional candidate Mark Harris in the 2018 Congressional District 9 election. What we know from our research and advocacy is that fraud is quite rare, and that the issues raised by the 2018 case have to do with enforcement of laws that were already in place prior to 2018, and with enforcement, surveillance and monitoring
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of election irregularities can suss out and address these issues. Eliminating the witness requirement would not open up North Carolina elections to interference, but instead would allow vulnerable communities—including many communities of color—to receive the help they need in order to participate in our democracy during a global pandemic. 31. As recent litigation has illustrated, the purported state interests that legislatures have used to implement voting restrictions in North Carolina are often red herrings and bear no relationship to the needs of conducting an election and create insurmountable burdens on the right to vote. IV. Legislative Activity on Elections and COVID-19 32. On March 19, DemNC and its partners sent a letter to the State Board of Elections urging expansive and first-step reforms to ease the burden of voting during a global pandemic.3 Shortly thereafter, NC State Board of Elections Executive Director Karen Brinson Bell sent a series of letters to the North Carolina General Assembly urging legislative action to ensure that fully participatory and safe elections could be conducted this fall. DemNC supported these recommendations. 33. My organization’s position is that two bills filed in the legislature represent the best efforts to address the myriad of needs arising from the challenges of conducting an election during this COVID-19 pandemic: House Bill 1184, introduced by Representatives Morey, Hawkins, Autry, and Butler, and Senate Bill 861,
3 This letter is available at https://democracync.org/wp-content/uploads/2020/03/Letterto-SBOE-re-COVID-19-response-3-19-2020.pdf.
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introduced by Senators Marcus, Chaudhuri, and Foushee. DemNC has urged its supporters and partners, in particular, to raise up Senate Bill 861 as an example of comprehensive electoral reform that would make voting safer and more accessible in November. However, the legislature has failed to take action on either of those bills. 34. DemNC understands that HB 1169, a compromise bill, seems to be the only legislation that stands any chance of moving, and it is, at the time of the signing of this declaration, still being heard in Senate committees. While HB 1169 might have represented a decent start to addressing the broad scope of election-related needs arising out of the COVID-19 pandemic had it been passed two months ago, when DemNC’s and the State Board of Elections recommendations first came out, this bill does far too little now. It does nothing to ease the burden on voter registration during the pandemic, and it is grossly inadequate in addressing the challenges that will face those organizations like mine trying to preserve safe, in-person voting. It does not do nearly enough to ensure that voters will have an easier time using absentee mail-in voting, particularly given North Carolinians lack of familiarity with the process. Even if this bill emerges as is out of the legislature, DemNC still asserts that, absent judicial intervention, participation in this year’s general election will be severely hindered and our resources will be significantly taxed and diverted trying to help voters in these unprecedented times.
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I declare under penalty of perjury under the laws of the United States of America that the foregoing Declaration is true and correct to the best of my knowledge.
Executed on the 4th day of June, 2020. ____________________ Tomas Lopez
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF JO NICHOLAS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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I, Jo Nicholas, hereby declare as follows: 1. I am a U.S. citizen and a resident of North Carolina. I am a registered voter
in Moore County, and have resided in Moore County since 2003. 2. I have served as President of the League of Women Voters of North Carolina
(“LWVNC”) since July 2019. In this role, I preside at all meetings of the organization and board of directors and represent the organization to the public at an assembly. In the absence of the treasurer, I may sign or endorse checks, drafts and notes. I am an ex officio member of all committees except the nominating committee, and I manage and supervise the overall organization and perform other duties as may be designated by the Board. I first became involved with the LWVNC in 2011 and since then have served as Past President and Board Director in addition to my current role.
3. The LWVNC is a state affiliate of the League of Women Voters of the United States (“the League”). The League is a nonpartisan, community-based organization that encourages Americans to participate actively in government and the electoral process. Founded in 1920 as an outgrowth of the struggle to win voting rights for women, the League now has more than 140,000 members and supporters, and is organized in approximately 750 communities and in every state.
4. For over ninety years, the League has led efforts to remove barriers that Americans face in registering to vote and casting a ballot. The League was also deeply involved in crafting the National Voter Registration Act of 1993 (“NVRA”), having provided substantial testimony and input over the course of the NVRA’s legislative history,
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specifically on the topic of purges for failure to vote. See, e.g., Voter Registration: Hearing Before the Subcomm. on Elections of the Comm. on H. Admin., 101st Cong. 149 (1989) (testimony of Nancy M. Neuman, President, League of Women Voters); Voter Registration: Hearing Before the Subcomm. on Elections of the Comm. on H. Admin., 103d Cong. 140 (1993) (testimony of Becky Cain, President, League of Women Voters).
5. The LWVNC is a nonpartisan political grassroots organization with seventeen local chapters throughout North Carolina. The LWVNC currently has approximately 1,912 members. The LWVNC’s Work to Help Voters Register
6. The LWVNC conducts voter registration and education initiatives throughout North Carolina, including voter registration drives, distribution of voter education materials, and voting-day assistance to help individuals exercise their right to vote. For example, in the 2016 election cycle, the LWVNC assisted several thousands of voters to register and hundreds of voters to enroll to receive absentee or by-mail ballots. In our Piedmont Triad chapter alone, which operates in Guilford County, we held 46 voter registration events as well as voter registration drives following Naturalization Ceremonies and registered over 550 voters between July 1, 2016 and June 30, 2017. Our other local chapters have engaged in similar efforts.
7. The LWVNC has expended significant resources to conduct these voter registration and education initiatives, including the time and effort of our members. We expect to engage in similar efforts for the upcoming general election cycle, and have
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already started our voter education initiatives, releasing a nonpartisan voter guide ahead of the March primary.
8. The COVID-19 pandemic has already significantly hindered the LWVNC’s work, requiring us to modify in-person initiatives and meetings to remote platforms. The LWVNC is becoming increasingly concerned that the COVID-19 pandemic is likely to interfere with the upcoming 2020 election, and I anticipate that without additional voter registration and support initiatives we may experience a significantly lower voter turnout. As a result, the LWVNC is currently working on initiatives to facilitate voter registration to mitigate the effects of the COVID-19 pandemic on voter turnout this fall. We expect that many voters will be seeking to register closer to the election because of the limitations on in-person voter registration efforts by LWVNC and similar groups. As a result, we expect many voters will try to register and be unable to due to the 25-day registration deadline, and if this deadline remains in force it will have the effect of frustrating our purpose in promoting voter registration. In addition, voters who need to update their registration and were previously able to do so during one-stop voting, including LWVNC members, will now be unable to do so because they are unable to vote in person due to the risk to their health. We will have to devote more resources to make sure voters, including our members, can update their information in time to apply for and vote an absentee ballot.
9. Online voter registration will be particularly important to the LWVNC’s registration work given the limits on our in-person initiatives. The North Carolina Department of Motor Vehicle (“DMV”) offers online registration, but previously this was
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only available to individuals who were also making a “transaction” with DMV. This was recently changed in March 2020 so that voters with a DMV account can register to vote online even if they are not doing an online transaction. Since this function is very new, most voters are not aware that they can use this online feature to safely register to vote. The LWVNC intends to publicize this option, and include this in our online voter services guide, “VOTE411”, within our communities, but we need time to do so. The current requirement that voters register with the DMV at least 25 days before the election will hinder these efforts and require us to devote resources to helping voters register that we would otherwise use in other initiatives leading up to the election.
10. Similarly, the failure of North Carolina to offer any other method of online voter registration, especially for individuals without DMV accounts, will significantly hinder and impact our efforts to conduct voter registration during the COVID-19 pandemic. Many voters we assist do not have DMV accounts and cannot register online currently. We would ordinarily assist citizens without DMV accounts using paper registration forms during our community voter registration activities, but cannot do so during the pandemic. The time needed to educate voters in a format that many are not familiar with – online resources – is crucial and these changes are needed now so that voters can be made aware and register to vote. The absence of an online option frustrates the mission of the LWVNC to ensure that all eligible voters can register safely in the current environment.
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The LWVNC’s Work to Help North Carolinians Vote By Mail 11. As noted above, the LWVNC engages in voter education through its local
chapters and this includes educating voters, including our members, on their options for how to vote. We are developing educational materials for voters to use in order to help them navigate this process, and our members have already started to receive questions about this process. LWVNC is acutely aware that many voters will want to vote absentee by mail this year. We will therefore focus on educating our members and their communities about voting absentee by-mail because it will likely be the safest option for many individuals to exercise their right to vote.
12. We also expect that many of these voters will seek to vote by mail for the first time. A survey of our members indicated that most had either never voted by mail, or had not voted in North Carolina recently by mail. We recognize that significant resources need to be devoted to voter education, and particularly to absentee by mail voting, throughout the state. As a result, helping voters navigate the application process and understand the requirements of voting by mail will be an essential part of our work, including providing them with resources, application forms, and accessible ways to submit forms.
13. Before the enactment of SB 683, LWVNC members assisted voters who needed help with completing and submitting absentee ballot request forms. The new restrictions on what assistance we can provide voters to complete and submit absentee ballot request forms will naturally impair these efforts and limit the types of initiatives we
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can undertake to help voters. Specifically, LWVNC and its members are unable to assist voters with correctly completing absentee ballot request forms and will be severely constrained in how we can help voters ensure they have filled these forms out correctly. Given the dramatic increase in voters wishing to vote by mail this year and the number we expect to do so for the first time, helping voters to request absentee ballots is particularly critical to our mission at this time in light of COVID-19. Assisting voters with filling out request forms is an important part of our educational mission and message of participation because once we assist voters with this process for the first time, they are more likely to do so on their own the next time and more likely to vote in the next election. Directly assisting voters is also an essential means of how we build relationships and associate with voters, including our members. In the absence of SB 683, we would be able to associate with our members and other voters to assist them with completing and submitting absentee ballot applications, which would allow us to further associate and build such relationships as a trusted messenger.
14. The LWVNC also views the lack of any method to request absentee ballots by phone, email, or online as problematic. We have already heard from people, including members, who have limited access to a computer and no access to a printer to download the absentee ballot request form. Other options need to be created to allow the many voters who will be looking to vote safely and vote absentee by mail to do so. We are also unable to help voters deliver absentee ballot request forms to the county board of elections, and this step can be particularly difficult for those who are self-quarantining and do not have
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access to envelopes, postage, or secure USPS mail pick-up. Developing the kind of relationship where voters trust us to turn in their forms (much like the voter registration assistance we provide) is key to our relationship and association with voters and the purpose of our members in their respective communities. With these restrictions in place, LWVNC will have to redirect a significant amount of its limited resources to helping eligible voters access absentee ballot request forms on their own and are severely limited in the assistance we can provide to help voters actually submit those forms. Helping voters submit forms and ensuring they are delivered to election officials would also make our message of promoting participation and civic engagement more effective. It is less effective and creates less of a relationship with members and other voters to simply point to a blank form and no more.
15. As for the requirement that two witnesses or a notary certify each mail-in ballot, the LWVNC is very concerned that this requirement will seriously affect voting behavior this year. Many LWVNC members fall into the population of voters that need to practice strong social distancing behaviors to protect their health. For these members, getting two witnesses to observe ballot marking and complete the application envelope will be difficult and force them to choose whether to break social distancing guidelines. Additionally, many have stated that this requirement discouraged their voting absentee by mail in the past. If the two witness requirement remains in effect, the LWVNC will have to divert its limited resources towards educating voters on how to vote safely, if even possible, with this restriction in place.
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16. Furthermore, we have great respect for all the workers with the U.S. Postal Service, but we recognize that they are likely to be overloaded this year and alternative, safe and secure delivery systems will be required to make absentee by mail voting an effective option for every voter who cannot vote in person. Contactless drop boxes are a safe and secure option for many voters. Without this option, the LWVNC’s work to assist voters to vote by mail will be limited because we will have concerns as the election gets closer that mailed absentee ballots may not be postmarked or delivered in time and will have to redirect more of its limited resources towards mitigating this concern.
17. The LWVNC recognizes that many counties make a significant effort to review completed absentee ballot envelopes and flag errors so that voters can offer more information, or have an opportunity to re-do their ballot. This has been observed by League members at many local county board of elections meetings. However, we also are aware that there is no uniform standard that is followed by every county board of elections, and that not all counties undertake these efforts. All voters in North Carolina should have the same opportunity to make sure their ballot is counted in this election. Because so many voters will be submitting absentee by mail ballots for the first time this year, we expect this to be a significant issue.
18. Without uniform and adequate methods for allowing voters to cure absentee ballot application forms or absentee ballots, the LWVNC will have to redirect its limited resources to ensuring that the voters it assists are following all procedures precisely, in addition to its general educational efforts.
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The LWVNC’s Work to Support In-Person Voting 19. The LWVNC recognizes that North Carolina will need to have a robust in-
person voting system in place. Many voters prefer to vote in person. In fact, if we follow the estimates of the State Board of Elections that 40% of voters will opt to vote absentee by mail this election cycle, millions of North Carolina voters will still want to vote in person. For example, people who lack a fixed long-term address, who rely on the ADAballot marking devices, or who prefer the security of seeing their ballot enter the tabulator, will still want to go to an in-person polling location.
20. Local county boards of elections must have as much flexibility as possible to operate as many polling sites as possible in what is expected to be a very challenging early voting environment. Local boards of elections will be scrambling to find locations that offer the space to provide social distancing, not only for voters, but for precinct workers. In addition, it is expected that some sites usually available for voting may become unavailable if the proprietors are uncomfortable giving the public broad access to their facilities. Allowing different sites to be open at different times will give more voters access to safe in-person voting options, reducing the possibility of long lines. If the uniform hours requirement remains in place and precincts are consolidated as a result, the LWVNC will have to divert its limited resources in its voter education efforts to alert its members and those in their communities about the changes.
21. As with in-person polling sites, local county boards of election will need flexibility in recruiting workers to staff the polls. COVID-19 has reduced the population of
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registered voters who will feel comfortable interacting with large numbers of the public. I understand that Wisconsin had such a crisis during their recent primary, and that they called in their National Guard to staff some precincts where insufficient numbers of poll workers would have prevented some counties and townships from having any polling places. Many LWVNC members work as precinct officials both during early voting and on election day. Some have reported that they will not work this year because of the pandemic. We will work hard to get the word out to the community to find poll workers, but they may no longer be within the precinct. If the requirement that the majority of poll workers must come from a precinct remains in place, the LWVNC will have to redirect more of our additional resources to recruit poll workers, whereas these efforts would be much easier with this restriction lifted. The Urgency of Preparing for the 2020 General Election
22. The LWVNC recognizes that this will be a unique election and our usual voter education will be under greater constraints. Voters have already communicated to us their concerns and their confusion. In order to effectively undertake our voter education and assistance initiatives, we need the ability now to give voters the information and reassurance that they will be able to vote safely in November. It is crucial for us to convey to our members and the voters in their communities that this most critical election will be handled by our government with the professional confidence that other elections have had in North Carolina, and that their votes will be received at their boards of elections and will be counted.
11
Case 1:20-cv-00457-WO-JLW Document 11-2 Filed 06/05/20 Page 11 of 12

I declare under penalty of perjury under the laws of the United States of America that the foregoing Declaration is true and correct to the best of my knowledge.
·~f°
Executed on the £ day of June, 2020.
12
Case 1:20-cv-00457-WO-JLW Document 11-2 Filed 06/05/20 Page 12 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF DONNA PERMAR IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Case 1:20-cv-00457-WO-JLW Document 11-3 Filed 06/05/20 Page 1 of 3

I, Donna Permar, hereby declare as follows: 1. I am a Durham County resident, and I work at the Duke Hospital as a staff
assistant. 2. I am a United States Citizen and a registered North Carolinavoter who is eligible
to vote in the November 2020 General Election. 3. I am completely blind and I live with my spouse who is also completely blind. 4. I plan on voting in-person this election cycle. 5. In-person voting via an ADA compliant voting machine is the only way that I
am confident in casting my ballot. Due to my blindness, voting absentee by mail is not an option for me because I cannot complete an absentee ballot without assistance from another individual, thereby compromising the privacy of my ballot. 6. Utilizing an ADA compliant machine is also the only way that I can cast my own ballot without assistance from others, and I trust it more than I do another person helping me to cast my ballot. I also trust the machine because it will read my choices back to me before I actually submit my vote. 7. I utilize public transportation in order to travel, thus it is important that my polling place for the November 2020 General Election is accessible by public transportation. If precincts are consolidated in a manner in which I would not have access to my polling place via public transportation, it would place a severe burden on my ability to cast my vote in-person.
Case 1:20-cv-00457-WO-JLW Document 11-3 Filed 06/05/20 Page 2 of 3

8. I also don't believe I, or any other voter should have to stand in long lines because ofexcessive precinct consolidation.
9. Additionally, it is important that the location and hours of the early voting sites in Durham are widely publicized, and that I am able to request information about early voting sites from the North Carolina State Board of Elections or the Durham County Board of Elections in order to know my options as to where to vote. It is also important that the early voting site hours are at times that are accessible via public transportation.
10. Further, I don't believe I or any other voter should be subject to excessive risk of infection with COVID-19 because polling places are not adequately sanitized and because poll workers were not provided with personal protective equipment.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this 19 of May, 2020.
Isl
Case 1:20-cv-00457-WO-JLW Document 11-3 Filed 06/05/20 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF JOHN P. CLARK IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Case 1:20-cv-00457-WO-JLW Document 11-4 Filed 06/05/20 Page 1 of 4

I, John P. Clark, hereby declare as follows:
1. I am a U.S. citizen and a resident of the town of Apex in Wake County, North Carolina.
2. I am 79 years old. I was a high school teacher before I retired. 3. I am a registered North Carolina voter who is eligible to vote in the November
2020 general election. 4. I have severe chronic obstructive pulmonary disease ("COPD") and have lived
with this disease for the last 12 years. It limits my activities. Whenever I'm active at all, walking around or working a little bit in the yard, I carry an oxygen tank. I can walk only two blocks, even with oxygen. I'm more susceptible to pneumonia and have had pneumonia four times in the last six years or so. Each time I have had pneumonia, the COPD was exacerbated by it. The most recent episode was in January 2020, which has caused a further deterioration of my respiratory condition. 5. COPD makes me more vulnerable to severe complications or even death from COVID-19. For me, the coronavirus is a death sentence. It is absolutely way too high a risk for me to vote in person. It is a necessity that I vote by absentee ballot in the November general election. To the best of my recollection, this is the first time in my life that I will not be voting in person and will be voting by mail. 6. To avoid any risk of contracting COVID-19, I have been quarantining myself during the pandemic, for the last eight weeks approximately. Because I can only
2 Case 1:20-cv-00457-WO-JLW Document 11-4 Filed 06/05/20 Page 2 of 4

walk about two blocks usmg an oxygen tank, my life has been quite circumscribed during this pandemic. 7. I live only with my wife. The only people who have entered our house during the lockdown have been three service people. I made sure I was never in the same room with them. My wife has limited her grocery shopping to no more than once a week. Because of the risk to me, she wears a mask and gloves when she goes inside and she uses sanitizing wipes as well. My wife's grocery trips are her only travel outside the house except for accompanying me on my short walks in the neighborhood and an occasional drive. We never go over to neighbors' houses or yards. We never leave our property except for necessary medical appointments, short walks, and an occasional drive. 8. I have voted in every presidential election since 1968, and I vote regularly in state and local elections. 9. I want to vote in the November 2020 general election and have already applied for my mail-in absentee ballot. 10. My wife could serve as one witness for my absentee ballot, but I could not safely get a second witness for the ballot. Given my COPD and the very serious risk it poses to my life if I catch COVID-19, I simply cannot ask someone to come to to my house to serve as a second witness or go to theirs. Each additional person I interact with poses an additional risk to my life. COVID-19 creates a much greater risk for someone like me because of my serious respiratory illness.
3 Case 1:20-cv-00457-WO-JLW Document 11-4 Filed 06/05/20 Page 3 of 4

Therefore, the only way I can safely vote is by mail, and without getting a second witness for my ballot. 11. Given the current rules in North Carolina, I am unable to figure out how I will safely cast a ballot by mail, with the current requirement of two witness signatures, that will be counted in the upcoming election. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this·.,,; of May, 2020. ,./John P. Clark
4
Case 1:20-cv-00457-WO-JLW Document 11-4 Filed 06/05/20 Page 4 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF MARGARET B. CATES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Case 1:20-cv-00457-WO-JLW Document 11-5 Filed 06/05/20 Page 1 of 4

I, Margaret B. Cates, hereby declare as follows : 1. I am a U.S. citizen and a resident of the Town ofFaison in Duplin County, North
Carolina.
2. I am 85 years old. I taught piano for a living but have since retired. 3. I am a registered North Carolina voter who is eligible to vote in the November
2020 general election. 4. I have had chronic fatigue syndrome for the last 27 years since 1993. When I
first came down with it, I was totally bedridden. Gradually, over a period of a few years, I was able to get up, dress and function somewhat. I could go out but not very far. I also could go to my children' s house but not often. I would have some recovery periods but then crashes. I was able to rehabilitate to about half my original function. Right now, I am not in good health. I have had several falls and have had a urinary tract infection coming and going for this past year which
has been very debilitating. As a result, I have been pretty weak and have been
using a walker in the house. I have not been able to function in a normal way. I
am in bed twelve hours at night and two in the afternoon. I seldom get up and
get dressed. There is no treatment for this syndrome. 5. I have also psoriasis and am being treated for that, and I also have had cancer
though it is not active now though. 6. For the last six months, after the tlu·ee falls and infection, I have had someone
who comes over to the house for a couple hours every day except Sunday to help
2
Case 1:20-cv-00457-WO-JLW Document 11-5 Filed 06/05/20 Page 2 of 4

with household chores, like cleaning, getting food , and doing laundry. She goes for grocery shopping and occasionally cooks. Since the coronavirus pandemic started, we have been following social distancing, and wc stay far apart. I have not left the house in 3 months, except to go to a doctor's appointment right before March began and before the social distancing guidelines were put in place. She only goes out to go to the grocery store for me and her family. She is very cautious, wears a mask, and keeps her distance. I could not live in this home by myself without her help. 7. I have voted in every presidential election since the 1956 presidential election. I also vote in many state and local elections. 8. I want to vote in the November 2020 general election. I do not have a computer or printer. I do have a tablet and a smart phone. I have never voted by mail, but from what I understand there is no way for me to request an absentee ballot
online. If this option were available, I could (with some assistance) and would
request a ballot that way. I could also request one by phone call. I have not yet requested an absentee ballot for the November election. 9. My nearest family member is my son, who lives a two-hours ' drive away in Southern Pines, North Carolina. Without an online or phone option to request an absentee ballot, I would not be able to request an absentee ballot on my own and would depend on others to mail or otherwise provide it to me. I O.Ifl were able to get an absentee ballot, I understand there is a requirement that I either get two witnesses or a notary public for it to be counted. My assistant who
3
Case 1:20-cv-00457-WO-JLW Document 11-5 Filed 06/05/20 Page 3 of 4

comes to the house to help with daily tasks could serve as one witness for my absentee ballot, but I would be taking a risk in getting a second witness for the ballot. Given my poor health and debilitated state, I would have to ask someone to come into my house to serve as a second witness, and no one has been here besides my assistant. I am reluctant to ask someone to come in because of the coronavirus. Each additional person I interact with poses a risk to my life. I will not be able to get a second witness without breaking the social distancing rules that Tam following to protect my health . 11 .Voting in person is not an option for me, and I believe it would pose too much of a risk to me. Given the current rules for voting by mail , I am unable to figure out how I will safely cast a ballot by mail in the upcoming election. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this ~O ofMay, 2020.
Isl Margaret B) Cates
4
Case 1:20-cv-00457-WO-JLW Document 11-5 Filed 06/05/20 Page 4 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF LELIA BENTLEY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Case 1:20-cv-00457-WO-JLW Document 11-6 Filed 06/05/20 Page 1 of 3

I, Lelia Bentley, hereby declare as follows: 1. I am a U.S. citizen and a resident of the town of Wilkesboro in Wilkes County,
North Carolina. I live on my own. 2. I am 62 years old and registered to vote in Wilkes County. I regularly vote in local,
state, and federal elections. 3. I have been diagnosed with hypertension, which I control through diet, exercise,
and activities like meditation. Additionally, about once a year, I usually get a cold that develops into respiratory issues. Typically when this happens, I get congested in my sinuses and lungs, develop a hacking cough, experience shortness of breath, and cannot leave my bed. Because of these issues and because it has been reported that COVID-19 attacks the lungs, I am terrified of getting COVID-19. I believe it could kill me.
4. I started self-isolating to protect my health on March 10. The last time I went to the grocery store was on March 15. Since then, if I have needed groceries, I order them online and have them delivered.
5. My city has been working to connect water lines in my area. City employees have come to my home to provide me with updates about this work, but I have made them stand on the sidewalk and cleaned my door and doorbell with Clorox wipes after they left.
6. I am following the stay-at-home order as best as I can. If I do not need to leave my home, then I don’t.
7. I do not have any support network, including relatives, in Wilkes County and would have to ask my neighbors to serve as witnesses to request and cast a mail-in ballot. However, I believe this would put me at risk of catching COVID-19 or put others at risk. The neighbors who live on either side of my house continue to leave their homes and even host gatherings.
2
Case 1:20-cv-00457-WO-JLW Document 11-6 Filed 06/05/20 Page 2 of 3

Other neighbors are self-isolating because they have elderly relatives, and I worry that despite all of the precautions I take, I could accidentally spread the virus to them. As for my other neighbors, I do not know what precautions, if any, they are taking, and cannot trust that they are not infected or otherwise carrying the virus as a result.
8. I will not feel safe leaving my home again until there are safe treatments available if I get sick or a vaccine.
9. It is incredibly important to me to vote in the General Election. I believe every vote will count. But I do not know that I will be able to find witnesses, or who I would ask. Even if I could find witnesses, I do not know that I would move forward with requesting a mail-in ballot or sending in a ballot by mail because of the risk of catching COVID-19 through the witnessing process. I will not vote in person because I believe it would be too much of a risk to my health.
10. I am very frustrated by these laws. I do not understand why they are required. Other states have been voting by mail for years. This situation is extremely unfair to voters like me.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this 19 of May, 2020.
/s/ Lelia Bentley Lelia Bentley
3 Case 1:20-cv-00457-WO-JLW Document 11-6 Filed 06/05/20 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF REGINA WHITNEY EDWARDS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Case 1:20-cv-00457-WO-JLW Document 11-7 Filed 06/05/20 Page 1 of 4

I, Regina Whitney Edwards, hereby declare as follows: 1. I am a U.S. citizen and a resident of Durham County, North Carolina. My
address is 3231 Sparger Road, Durham, North Carolina 27705. I live in a singlefamily home with my partner. 2. I am a registered North Carolina voter who is eligible to vote in the November 2020 General Election. 3. I am 30 years old. 4. I am a Program Manager at the Duke Human Vaccine Institute. My responsibilities include managing grants, including awards from the National Institutes of Health, and overseeing a training and mentorship program for students and researchers who are affiliated with the Institute. Because immunologists and vaccine specialists at the Institute are actively working on COVID-19, I am familiar with the health risks posed by COVID-19. I am also an advocate for the American Diabetes Association. 5. I learned from the website of the Centers for Disease Control that I am at very high risk of developing severe illness from the novel coronavirus because I have a serious pre-existing medical condition, type 1 diabetes. I have had type 1 diabetes for 21 years. 6. Numerous medical professionals with whom I work at the Institute have warned me about the impact of COVID-19 on high-risk individuals like myself. To protect my health, I have remained at home since mid-March and have not seen
Case 1:20-cv-00457-WO-JLW Document 11-7 Filed 06/05/20 Page 2 of 4

another person other than my partner. I work from home and avoid public spaces. I rely on my partner to shop for groceries and run other errands. In light of the advice of the medical professionals with whom I work, I am uncomfortable leaving my home or being in close proximity to people other than my partner. 7. Because of the nature of my work for the Duke Human Vaccine Institute and my advocacy with the American Diabetes Association, I understand that these measures are necessary to safeguard my physical wellbeing in light of the COVID-19 pandemic. 8. I have voted in multiple elections in North Carolina, including the most recent primary election in March 2020. I almost always vote in person. But for the threat of COVID-19, I would vote in the 2020 General Election in person. 9. Because of the pandemic and the health risks posed by in-person voting, I am not willing to vote in person during the 2020 General Election. 10. To protect my health, I would like to vote by mail-in absentee ballot. But I cannot safely comply with North Carolina's two-witness requirement. Although my partner is available to serve as the first witness, I am not willing to jeopardize my physical wellbeing by asking another person to serve as the second witness. 11. The two-witness requirement thus forces me to choose between my health and my right to vote. 12. Although I strongly wish to vote in this election, I will not do so if the twowitness requirement remains in effect.
Case 1:20-cv-00457-WO-JLW Document 11-7 Filed 06/05/20 Page 3 of 4

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this ~day of May, 2020. Regina Whitney Edwards
Case 1:20-cv-00457-WO-JLW Document 11-7 Filed 06/05/20 Page 4 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF ROBERT K. PRIDDY II IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Case 1:20-cv-00457-WO-JLW Document 11-8 Filed 06/05/20 Page 1 of 3

I, Robert K. Priddy II, hereby declare as follows: 1. I am a U.S. citizen and a resident of Brunswick County, North Carolina. I live
at 2 Kings Grant Court, Shallotte, North Carolina 28470, with my wife. 2. I am a registered North Carolina voter who is eligible to vote in the November
2020 General Election. 3. I am 70 years old. Before I retired, I worked in nuclear safety. 4. My doctor has informed me that I am at very high risk of developing severe
illness from the novel coronavirus because I have several serious pre-existing health conditions and because of my age . In 2010, I received a kidney transplant. To ensure that my body does not reject the transplant, I take medication that suppresses my immune system. The medication also causes borderline diabetic issues, so I receive treatment for diabetes. 5. To protect my health, my doctor has advised me to stay home and avoid contact with people outside my household. Accordingly, I have remained at home since mid-March. I rely on my wife to shop for groceries and mn other errands. The only time I have gone outside is to pick up prescriptions from a drive-thru pharmacy, where I remain in my vehicle and do not directly interact with the pharmacist. In light of my doctor's advice, I am uncomfortable leaving my home or being in close proximity to people other than my wife.
Case 1:20-cv-00457-WO-JLW Document 11-8 Filed 06/05/20 Page 2 of 3

6. I have voted in numerous elections in North Carolina. Although I usually vote in person, I have also voted by absentee ballot on occasion. But for the threat of COVID-19, I would vote in the 2020 General Election in person.
7. Because of the pandemic and the health risks posted by in-person voting, I am not willing to vote in person for the 2020 General Election.
8. I would like to vote by mail-in absentee ballot, but I cannot safely comply with North Carolina's two-witness requirement. Although my wife is available to serve as·the first witness, I am not sure whether I am willing to jeopardize my physical wellbeing by asking another person to serve as the second witness.
9. The two-witness requirement thus forces me to choose between my health and my right to vote.
10. Although I strongly wish to vote, I do not expect the risks to my physical health to abate in the months leading up to the election. As a result, if the twowitness requirement remains in effect, I am not sure whether I will be able to
vote in the 2020 General Election.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this// day of May, 2020.
Robert K. Priddy II
Case 1:20-cv-00457-WO-JLW Document 11-8 Filed 06/05/20 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF WALTER HUTCHINS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1 Case 1:20-cv-00457-WO-JLW Document 11-9 Filed 06/05/20 Page 1 of 4

I, Walter Hutchins, hereby declare as follows: I . I am a U.S. citizen and a resident ofWilmington County, North Carolina. I have
been living at The Davis Community, a nursing home in Wilmington, for about a year and a half. 2. I am 91 years old and a veteran of the U.S. Army Air Forces and U.S. Air Force. I served from 1946 to 1949. 3. I am a registered North Carolina voter who is eligible to vote in the November 2020 general election. The first election I voted in was in 1952, and the last election I voted in was the 2018 general election. I voted in person at a polling location in Plantation Village, a senior citizen living facility in Wilmington, North Carolina, where I used to live. My wife, Reverend Margaret Hutchins, is still residing there. 4. In 2018, I was not completely visually impaired. Now, I am legally blind. 5. My wife assisted me with casting my ballot in 2018. She recited the candidates and when I informed her of my choice, she would position my hand so that I could mark my ballot. 6. Due to my age, I am at very high risk ofdeveloping severe illness from the novel coronavirus. To protect my health, and the health of others similarly situated to me, The Davis Community has been on lockdown since mid-March. No visitors, including family members, are allowed. My wife has not been allowed to see me during this time.
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7. The residents at Davis community are told to maintain at least 6 feet ofdistance from each other, due to the coronavirus. We are kept at least 6 feet apart at meals, and we are given hand sanitizer.
8. I would like to vote by absentee ballot in November. However, I have never voted by mail before and am unfamiliar with the absentee ballot process. I do not know how I will be able to request and cast an absentee ballot without my wife's assistance.
9. I asked the staff at The Davis Community how blind residents have been able to vote in the past, and no one could provide an answer. As far as I know, there has been no preparation at The Davis Community for residents to vote. I have not been given any information about how to participate in the upcoming November election.
10. I do not know how I can vote with the current restrictions in place. I am unable to fill out an absentee ballot request by mail, since I am legally blind, and would like to be able to do so by phone. I have a phone in my room, which I am able to use without assistance. Ifl were provided the number for the county board of elections-as well as the necessary information, such as the last four digits of my Social Security Number- by my wife or The Davis Community staff, I could make this request on my own.
11 . Since The Davis Community is under lockdown and my wife cannot assist me with my absentee ballot, I would like The Davis Community staff members to
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be permitted to assist me in voting and returning my absentee ballot, and only if necessary, to serve as my witnesses. 12. Otherwise, my blindness will prevent me from completing and returning my absentee ballot and voting in the upcoming November election. 13. This declaration has been read to me by my attorneys, and a copy for me to sign was provided by courier. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this 4th day of June, 2020. Waite
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF SUSAN SCHAFFER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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I, Susan Schaffer, hereby declare as follows: 1. I am a Durham County resident, and I am a retired attorney. 2. I am a United States Citizen. 3. I am a volunteer with You Can Vote, an organization that does voter registration
and, in the past, has helped people request absentee ballots. 4. In the past couple of years, I have assisted numerous voters in registering to vote
and requesting absentee ballots, as well as assisting voters with completing their absentee ballots. 5. Additionally, in the past I have assisted voters at Senior living facilities and nursing homes that are now off limits to people who are seeking to assist voters with requesting an absentee ballot, but do not have a family member in that specific facility and/or are not a part of a Multi-Partisan Assistance Team. 6. The assistance prohibitions set forth in N.C. Gen. Stat. §§ 163-230.2 as amended by North Carolina Senate Bill 683 (“SB 683”) have stifled persons such as myself from assisting voters who need help requesting an absentee ballot. Such as elderly voters, first-time absentee voters who are not familiar with the absentee voting rules in North Carolina, or voters who may not otherwise qualify for assistance. 7. Since the passage of SB 683, organizations like You Can Vote and its volunteer base (of which I am a part) have not been able to assist voters with requesting absentee ballots.
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8. I want to ensure that I am following the letter of the law, and as not to potentially be in violation of the law I have been prevented from assisting voters in requesting an absentee ballot which may be their only way to vote this year given the Covid- 19 pandemic.
9. Without having the ability to assist voters with requesting their absentee ballots, my ability to help voters who may require assistance is impaired.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this 4th of June, 2020.
Isl
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs,

vs.

Civil Action No. 20-

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

cv-457

Defendants.

1

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INDEX OF ADDITIONAL DECLARATIONS
1. Declaration of Dr. Meghan Murry, Professor of Global Health, Harvard Medical School
2. Declaration of Dr. Paul Gronke, Professor of Political Science, Reed College
3. Declaration of Gary Bartlett, former Executive Director of the North Carolina Board of Elections
4. Declaration of Marshall Tutor, former Lead Investigator for the North Carolina State Board of Elections
5. Declaration of Christopher Ketchie, demographer and data analyst, Southern Coalition for Social Justice
6. Declaration of Allison J. Riggs, Counsel for Plaintiffs and Interim Executive Director and Chief Counsel for Voting Rights, Southern Coalition for Social Justice
7. Exhibits 1-10 to Riggs Declaration 8. Exhibits 11-17 to Riggs Declaration 9. Exhibits 18-23 to Riggs Declaration
2
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF MEGHAN MURRAY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

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1. I am the Ronda Stryker and William Johnston Professor of Global Health in the Department of Global Health and Social Medicine at the Harvard Medical School, a Professor of Epidemiology at the Harvard Chan School of Public Health, a faculty member of the Center for Communicable Disease Dynamics at the Harvard Chan School of Public Health and an associate Professor of Medicine at the Harvard Medical School and the Brigham and Women’s Hospital. I obtained my BA from Dartmouth College in 1980, after which I worked for the Intergovernmental Committee for Migration (now IOM) heading up a public health screening program for refugees being resettled from refugee camps in Thailand. I obtained my MD from Harvard Medical School in 1990 and my ScD (doctorate in science) in Epidemiology from the Harvard School of Public Health in 2001. I completed a residency in internal medicine in 1993 and a fellowship in the sub-specialty of Infectious Diseases in 1995, both at the Massachusetts General Hospital in Boston.
2. Over the past 20 years, I have worked in the field of infectious disease dynamics and epidemiology, teaching and conducting research in emerging infectious diseases and in tuberculosis epidemiology and control. At the Harvard Chan SPH, I taught the basic epidemiology course Infectious Disease Dynamics between 2000 and 2016, and I have directly supervised the research of over 40 graduate students and post-doctoral fellows in these fields. Attached here as Exhibit A and incorporated by reference to this declaration is a copy of my curriculum vitae.
3. I have conducted research and have published on the transmission dynamics of SARS-CoV-1 in 2003, the 2010 cholera epidemic in Haiti, and on the 2015 Ebola
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outbreak, although most of my research is in the field of tuberculosis. I have published over 200 research articles. My work includes dynamic modeling of epidemics (TB, Cholera, Ebola, SARS-CoV-1, SARS-CoV-2); cohort studies on host and pathogen specific determinants of disease transmission and the development of novel diagnostic tools for the diagnosis of infectious diseases. I have been funded by the National Institute of Infectious Disease and Allergy since 1995 and have led, and currently lead, several major consortium projects on tuberculosis funded by this agency.
4. At the Harvard Medical School, I lead the Global Health Research Core of the Harvard Medical School, which conducts research in more than ten countries on a range of topics including emerging infectious diseases. I head up research at the Division of Global Health Equity at the Brigham and Women’s Hospital and also direct research at the non-governmental organization, Partners in Health. I have served as an associate editor of the European Journal of Epidemiology, the Journal of the International Union against TB and Lung Disease and of PLoS (Public Library of Science) Medicine. I am the co-lead of the Epidemiology working group of the Massachusetts Consortium for Pathogen Readiness.
5. I am currently collaborating on research concerning SARS-CoV-2 and its incidence, as well as serving on Covid-19 advisory groups for multiple organizations, including the State of Massachusetts and Harvard University. My research in this area includes, but is not limited to, modeling and estimating the number of hospital beds that will be required in the US and elsewhere, developing methods on syndromic surveillance
3
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for Covid-19 for low and middle-income countries, identification of risk factors for poor outcomes and the use of the vaccine, BCG, to prevent Covid-19 disease. To date (May 11, 2020), I have published two papers in this area and have three others under review.
OVERVIEW 6. SARS-CoV-2 is a newly identified coronavirus that is the causative agent involved in Coronavirus Disease 2019 (Covid-19). SARS-CoV-2 infection can result in an asymptomatic infection or in symptomatic disease which ranges from mild to severe. Most people who develop symptomatic Covid-19 have a flu-like illness that starts out with fever, cough, sore throat and shortness of breath. A subset of people who are infected will go on to develop much more serious illness, characterized by respiratory compromise and acute respiratory distress syndrome (ARDS). Other serious manifestations of Covid-19 have included cardiac problems: arrhythmias, acute cardiac injury, and shock. 7. Because Covid-19 is a new disease, it is too early to know the full extent of long-term medical consequences of the infection. However, some information can be inferred from the courses of diseases with similar manifestations. Patients who develop ARDS and/or are mechanically ventilated are likely to develop lung scarring that may permanently impair their pulmonary function [1]. Patients who end up in ICUs or on mechanical ventilation for extended periods often develop post-ICU syndrome which prolonged physical debilitation, muscle atrophy, neurocognitive impairments and emotional/psychiatric responses that are similar to post-traumatic stress syndrome.
4
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Although Covid-19 has been reported in people of all ages, older people and those with comorbidities (concurrent illnesses) are most likely to develop severe disease.
8. Covid-19 is a respiratory virus which is spread by symptomatic and asymptomatic people through respiratory droplets, meaning drops of fluid from the nose or mouth that are emitted during coughs, sneezes or even talking. Some of the viral particles emitted this way end up on surfaces (door handles, coins) where they can remain viable. It has also been shown that Covid-19 can be transmitted as an aerosol – in other words, through the airborne route, i.e., direct inhalation of virus suspended in the air.
9. Control of SARS-CoV-2 spread is particularly difficult relative to some other viral infections because people can transmit the infection even when they do not have symptoms of the disease. This means that the practice of isolating patients with symptomatic disease will not be enough by itself to control epidemic spread. In contrast, infections like smallpox and SARS-CoV-1 were not infectious until symptoms had developed so isolation of ill people had a substantial impact on epidemic control. In the absence of a vaccine or pharmaceutical interventions that interrupt transmission, infection control can only be achieved by reducing the number of contacts between infectious individuals (including those who are asymptomatic) and susceptible people.
10. Infectious disease epidemiologists have developed projections of the future trajectory of Covid-19 incidence based on modeling the epidemic and possible interventions. Although these models differ in terms of specifics, they consistently show that it is highly likely that the relaxation of social distancing measures that will occur with
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the end of “lock-down” will increase the number of social contacts that people make and that the incidence of infection will increase accordingly In particular, these models predict that transmission of SARS-CoV-2 will continue or increase in the fall and winter, leading to further morbidity and mortality from this disease.
11. There is a substantial risk that an infection with Covid-19 acquired during voting at a poll booth in North Carolina in the fall of 2020 could result in symptomatic disease, hospitalization or death. The risk of an individual being infected during voting at a polling booth in fall 2020 depends on the number of infectious people in that community at that time point and the number of physical, fomite-mediated and near contacts one makes during that process. To the extent that polling places are crowded, require people to wait in lines, involve interacting with polling staff or other voters at a close distance, move people through the process slowly, are poorly ventilated, and/or involve people touching objects like pens, paper, or surfaces within the voting booth, they constitute a risk to voters. Similarly, if voters or poll workers use toilets that are also used by others, they can be put at risk. North Carolina has relatively high rates of the co-morbidities that predispose people to poor outcomes from Covid-19.
12. I was asked to describe the novel coronavirus that causes Covid-19. SARSCoV-2 is a newly identified coronavirus that is the causative agent involved in Coronavirus Disease 2019 (Covid-19) [1]. It is a single-stranded RNA virus of the Coronavirus family. Previously identified coronaviruses are known to infect a wide range of hosts including wild and domestic animals and birds as well as humans. Six human coronaviruses have
6
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been identified over the past 60 years; four of them (OC43, 229E, NL63, and HKU1) cause mild cold-like symptoms and/or gastrointestinal tract infections. Two that have caused more serious illness include the severe acute respiratory syndrome coronavirus (SARSCoV-1) that emerged in China in 2003 and the Middle East respiratory syndrome coronavirus (MERS-CoV) that was first identified in humans in Saudi Arabia in 2012. SARS- and MERS-CoVs are believed to have originated in bats and transferred to humans through intermediary hosts, possibly palm civets for SARS or dromedary camels for MERS. The coronaviruses that are most similar to SARS-CoV-2 are those identified in horseshoe bats – these share 96 percent of their genetic material with SARS-CoV-2 while the earlier SARS virus shared 80 percent and cold viruses mentioned above share about 50 percent [2].
13. Like SARS-CoV-1, SARS-CoV-2 infiltrates human cells by binding to the receptor for ACE2 (angiotensin converting enzyme) and then being taken up by these cells, where it directs the production of new virus particles (virions) using the host’s genetic machinery [3]. Like other viruses, SARS-CoV-2 virions consist of a “core” which contains the genetic material, a “capsid” which is a protein coat and a lipid envelope. Upon assembly in the host cell, newly-produced virions are released from the host cell and go on to infect new host cells. To some extent, the clinical manifestations of the disease are related to the types of cells that have the receptor to which the virus binds and to the inflammatory responses that are induced by the host immune response to the infection. While ACE2 receptors were well-known to be present on vascular endothelial cells (blood vessels) and
7
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renal tubular cells (kidney), they have also been found to be abundant on alveolar epithelial cells (lung), enterocytes (gut), heart cells, brain cells and in cells in the inner lining of the nose [4]. This diverse distribution helps explain the wide constellation of symptoms and syndromes that are increasingly being recognized as part of Covid-19 disease.
14. I was asked to characterize clinical features of Covid-19. SARS-CoV-2 infection can result in an asymptomatic infection or in symptomatic disease which ranges from mild to severe. The term Covid-19 refers to the illness that is caused by SARS-CoV2. Most people who develop symptomatic Covid-19 have a flu-like illness that starts out with fever, cough, sore throat and shortness of breath. As clinicians have gained more experience with the disease, it is now becoming clear that the initial presentation of the disease can also include a variety of other symptoms including gastrointestinal issues such as nausea, vomiting and diarrhea, loss of a sense of taste and/or smell, headache and muscle pain and in some cases, particularly in the elderly, altered neurological states such as confusion, lethargy and reduced responsiveness. The Centers for Disease Control and Prevention (CDC) have recently expanded their list of symptoms associated with Covid19 from fever, shortness of breath and cough to include chills, muscle pain, headache, sore throat and new loss of taste or smell [5]. On average, among those who present with these symptoms, fever persists for around 12 days, shortness of breath for 13 days and cough for about 19 days. According to the World Health Organization (WHO), recovery time appears to be around two weeks for mild infections and three to six weeks for severe disease [6].
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15. A subset of people who are infected will go on to develop much more serious illness, characterized by respiratory compromise due to pneumonia that can be gradual or sudden. Some patients who initially reported only mild symptoms may progress to severe disease over the course of a week. In one study of 138 patients hospitalized in Wuhan, China, for pneumonia due to SARS-CoV-2, dyspnea (severe shortness of breath) developed approximately five days after the onset of symptoms, and hospital admission occurred after around seven days after the onset of symptoms [7].
16. Acute respiratory distress syndrome (ARDS) is the major complication in patients with severe disease. In the study cited above, ARDS developed in 20 percent of hospitalized patients around eight days after the onset of symptoms and 12.3 percent of this group required mechanical ventilation [7]. In another study of 201 hospitalized patients with Covid-19 in Wuhan, 41 percent developed ARDS [8]. Some patients with severe Covid-19 have an overactive inflammatory response, sometimes termed a “cytokine storm,” which is characterized by persistent fevers and laboratory abnormalities including high levels of inflammatory markers and elevated proinflammatory cytokines. People with these types of laboratory abnormalities are those most likely to have critical or fatal illness.
17. Other serious manifestations of Covid-19 have included cardiac problems: arrhythmias, acute cardiac injury, and shock [9-11] which occurred in 17, 7, and 9 percent of hospitalized patients, respectively [7]. In a case series of 21 severely ill patients admitted to a US ICU, one-third developed cardiomyopathy (injury to the heart muscle) [12]. An alarming recent finding has been the association of Covid-19 with thromboembolic
9
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complications (pulmonary embolism and stroke) that have been reported among patients in younger age groups and without known risk factors [13-15]. In one US-based case series, a single health facility reported on five Covid-19 patients with acute stroke who were seen over a two-week period; all of these people were under 50 years of age [14]. This incidence is more than seven times the rate reported in that age group prior to the pandemic. In one series of ICU patients, ischemic stroke was also noted observed in 3.7 percent of the patients [15].
18. Other rarer manifestations of Covid-19 include Guillain-Barré syndrome which can occur five to ten days after initial symptoms [16]. Guillain-Barré syndrome is a rare neurological syndrome characterized by an inflammation of nerve cells outside the brain. In serious cases, it can lead to paralysis which usually resolves after six months but which can be permanent in some cases. Another rare inflammatory syndrome that has been reported in Covid-19 occurs in children who have developed symptoms consistent with toxic shock syndrome and Kawasaki disease [17].
19. Because Covid-19 is a new disease, it is too early to know the full extent of long-term medical consequences of the infection. However, some information is already available, and some can be inferred from the courses of diseases with similar manifestations. Patients who develop ARDS and/or are mechanically ventilated are likely to develop lung scarring that may permanently impair their pulmonary function. [18]. In addition, patients who end up in ICUs or on mechanical ventilation for extended periods often develop post-ICU syndrome which includes a constellation of findings such as
10
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prolonged physical debilitation, muscle atrophy, neurocognitive impairments and emotional/psychiatric responses that are similar to post-traumatic stress syndrome [19]. Patients that suffer strokes in the context of Covid-19 are very likely to experience longterm neurological deficits from these events.
20. Although Covid-19 has been reported in people of all ages, older people and those with co-morbidities (concurrent illnesses) are most likely to develop severe disease. Accurate case fatality rates are hard to obtain in the context of limited testing since we do not always know who actually has the infection. However, a compilation of the death rates across countries shows that older people are consistently more likely to die if they have detectable Covid-19 disease than are younger people [20]. The table below shows that the risk of death rises with each additional decade after age 50. Table 1. Case Fatality rate by age groups. From Onder G, Rezza G, Brusaferro S. CaseFatality Rate and Characteristics of Patients Dying in Relation to Covid-19 in Italy. JAMA. 2020;323 [18].
21. In addition to age, other risk factors for severe disease and death include hypertension, heart disease, lung diseases (e.g., asthma, chronic obstructive pulmonary
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disease (COPD)), diabetes mellitus, obesity, and chronic kidney disease. In one recent study of 5700 Covid-19 patients identified in New York City, 56.6 percent had pre-existing hypertension, 41.7 percent were obese (body mass index > 30) and 33.8 percent had diabetes mellitus [21]. Risk factors for death among patients with Covid-19 were recently ascertained in another study of 5,683 Covid-19 deaths in the United Kingdom [22]. In this report, men were twice as likely to die as women; people with obesity 2.3 times as likely to die as those of normal weight; people with uncontrolled diabetes 2.36 times than nondiabetics, people with organ transplants 4.3 times than their healthy counterparts. In both Britain and the US, there are marked disparities in deaths by race: 33 to 42 percent of deaths in the US have reportedly occurred in African Americans, while only 12 to 13 percent of the total US population is African American [23]. Figure 2 provides comparative death rates from Covid-19 from the APM research lab (https://www.apmresearchlab.org/). Table 2 Covid-19 Death Rate by ethnic group. (From APM Research Lab) https://www.apmresearchlab.org/
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22. Although the Covid-19 case fatality rates are low in young individuals, it is important to note that multiple seroprevalence studies (studies that detect previous infection in people) in several countries show that infection (as distinct from severe disease) is more common in people younger than 50, probably because they have more frequent social contacts than older people. Furthermore, the proportion of people in the US population under 50 years of age is 66%, meaning that even though the absolute risk for a young person is lower than for someone over 50, deaths among people under 50 will not be uncommon as the epidemic progresses over time.
23. I was asked to explain how Covid-19 is transmitted and to describe interventions that could interrupt transmission. SARS-CoV-2 can be transmitted in multiple ways, through respiratory droplets emitted during talking, singing, sneezing and coughing, via objects on which viral particles have been deposited, and through air. Importantly, the virus can be transmitted by people who are asymptomatic as well as by those who are demonstrably ill.
24. Covid-19 is a respiratory virus which is spread through respiratory droplets, meaning drops of fluid from the nose or mouth that are emitted during coughs, sneezes or even talking [52]. Some of the viral particles emitted this way end up on surfaces (door handles, coins) where they can remain viable. These objects then become “fomites,” defined as inanimate objects that can transfer infection between people. A recent study documented the stability of SARS-CoV-2 on a series of different surfaces over time [24]. The virus was found to be more stable on plastic and stainless steel than on copper and
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cardboard with viable virus detectable for up to 72 hours after application to these surfaces although the virus titer was steadily reduced over those periods. On cardboard, viable SARS-CoV-2 was measured for 24 hours. Notably, this study also evaluated the stability of SARS-CoV-1 – the causative virus of the 2003 SARS epidemic – and found that it was very similar to SARS-CoV-2 despite the fact that SARS-CoV-2 has much more capacity to spread widely than SARS-CoV-1. The authors conclude that the “differences in the epidemiologic characteristics of these viruses probably arise from other factors, including high viral loads in the upper respiratory tract and the potential for persons infected with SARS-CoV-2 to shed and transmit the virus while asymptomatic.” [24]
25. It is also possible that Covid-19 is transmitted as an aerosol – in other words, through the airborne route, i.e., direct inhalation of virus suspended in the air. The study cited above also assessed the stability of aerosolized SARS-CoV-2 over time. To do this, they used a nebulizer to generate aerosols that would be similar to those observed in samples obtained from the upper and lower respiratory tract in humans. SARS-CoV-2 remained viable in aerosols throughout the duration of the three-hour experiment, suggesting that aerosol spread of SARS-CoV-2 is indeed possible. These findings are consistent with case reports of Covid-19 patients who were infected in settings in which they did not have direct contact with others. In one case, 45 people were diagnosed with Covid-19 after attending a choir practice in Washington State in early March although they had no direct physical contact with each other [25]. The findings are also consistent with a report in the journal, Nature, where researchers found viral RNA in aerosols sampled in
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February and March at two hospitals in Wuhan, China. The levels of airborne viral RNA in well-ventilated patient rooms were relatively low but there were higher levels in some of the patients’ toilet areas, presumably aerosolized by the flushing mechanism.
26. High levels of viral RNA were also found in areas where medical workers remove their protective equipment and in locations near the hospitals where people tended to congregate. The authors concluded: “Our study and several other studies proved the existence of SARS-CoV-2 aerosols and implied that SARS-CoV-2 aerosol transmission might be a non-negligible route from infected carriers to someone nearby.”
27. The transmissibility of any infectious agent depends on several things: the probability of an infection event given a contact between a susceptible person and an infectious person; the duration of infectiousness – or number of days that a person can transmit – and the number of contacts that an infectious person has per unit time. This means that the transmissibility can vary in different settings and will depend on things like crowding, which increases the number of contacts. Based on a summary of multiple studies, each infectious person with Covid-19 is expected to infect between 2 and 3 people on average [26]. But this term – “on average” – obscures the substantial variability observed in different people. Some people are much more infectious than others and other people do not transmit at all. Like many other respiratory infections, SARS-CoV-2 follows the 20/80 rule – meaning that most transmission is associated with 20 percent of the infectious people while the other 80 percent infect relatively few people. The factors that
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lead to this kind of “super-spreading” are not clear and it is thus not possible to identify in advance those people who are likely to infect a large number of other people.
28. Control of SARS-CoV-2 spread is also made more difficult because people can transmit the infection even when they do not have symptoms of the disease. This can happen in two ways. Many people with SARS-CoV-2 infection have few if any symptoms – as more and more seroprevalence studies are being conducted to identify who has been infected, it is estimated that 50-60 percent of infected people never develop symptoms of the disease. Seroprevalence surveys are studies that look for the presence of antibodies to an infection in a blood sample; these are only present in people who have been exposed to the infection and have mounted an immune response. Secondly, people who develop Covid-19 disease experience a “pre-symptomatic” period during which they are infected but do not yet have symptoms. A recent study in the New England Journal of Medicine found that quantitative SARS-CoV-2 viral loads were similarly high in four different symptom groups; people with typical symptoms of Covid-19, people with atypical symptoms, people who were pre-symptomatic, and those who remained asymptomatic [27]. Notably, 71 percent of the samples taken from pre-symptomatic persons had viable virus for one to six days before the development of symptoms. Because viral load is an accepted proxy for infectiousness, these data imply that a significant proportion of transmission events originate from persons who do not have detectable infection.
29. What kinds of interventions are currently available that could interrupt or reduce transmission of SARS-CoV-2? In the absence of a vaccine or pharmaceutical
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interventions that reduce the probability of transmission, there are a limited number of approaches to infection control, all of which involve restricting people’s physical and social interactions. One can isolate people with symptomatic disease to try to prevent them from infecting others, but this will only be completely effective if people are diagnosed with the disease at or before the time that they become infectious. As noted above, in people who are infectious before they have symptoms or in infectious people who never develop symptoms at all, transmission can take place in the absence of symptoms. For diseases like this one, with significant asymptomatic spread, quarantine is used to separate and restrict the movements of people without signs of illness who may have been exposed to an infectious case so that they do not infect others during that period. Another approach is social distancing – this can range from asking people to stay at home or to avoid congregate settings such as schools, workplaces, or large gatherings. The purpose of social distancing is to reduce the number of person-to-person contacts one makes so that one is less likely to encounter an infectious person. Polls show that US adults practicing social distancing have 90% fewer contacts per day than those who are not social distancing. Those who completely or mostly isolate themselves generate about five contacts per day, compared with an average of 52 for those not attempting to isolate themselves [28].
30. It is challenging to directly measure the actual efficacy of the nonpharmacological interventions to reduce the spread of an infection because these interventions are not randomly assigned to individuals and then evaluated in a head-tohead comparison of what happens to people in intervention and non-intervention groups.
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One approach to estimating the impact of social distancing measures is to conduct studies that screen entire communities to determine who is actively infected at the time of screening. The researchers then correlate various characteristics of the people screened with the likelihood that they have been infected. Few such studies have been conducted to date but one that is informative was conducted in the Mission District of San Francisco. The research team offered free Covid-19 testing to all persons ages four years and older in an area that includes approximately 5,700 people (29). Of nearly 3,000 residents and workers in a Mission District census tract who were tested in late April for active infection with the novel coronavirus, 62 individuals (2.1 percent) have tested positive. Table 3 Viral test positivity in Mission District of San Francisco [29]
31. The question of the efficacy of quarantine, isolation and social distancing depends on when in the course of the infection most transmission is taking place. If most transmission occurs during the asymptomatic period – as it does, say, for HIV – isolation
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of patients with disease will have little impact. If on the other hand, most transmission takes place when people have identified themselves as ill (as it did for SARS-CoV-1 in 2002), isolation can be a very effective way to reduce spread. The benefits of quarantine – restricting the movements of people who are known to be in contact with an infectious case – depend on how effectively one can identify all contacts and prevent them from mixing with the general public. For obvious reasons, this can be very challenging and can have unintended consequences if quarantined people are housed together and become infected in that setting. Social distancing cannot prevent all transmission but could have a substantial impact on delaying transmission since contact rates are often much higher in congregate settings such as schools, prisons and other residential facilities. None of these measures is likely to lead to complete control of an epidemic since transmission is expected to resume once these are discontinued. But they may delay spread and give health systems time to develop better responses to the disease, whether those are new drugs, vaccines or simply improved efficiency of supportive care.
32. I was asked to address the likelihood that voting at polling stations could lead to SARS-CoV-2 transmission and Covid-19 disease. Because voting takes place in public buildings where people congregate and because the risks of infection and disease in the North Carolina population are high due to the high prevalence of comorbidities, voting at a polling station in November entails a substantial risk of infection with Covid-19 that could result in symptomatic disease, hospitalization or death. The risk of an individual being infected during a community event in a public place depends on the number of
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infectious people in that community at any particular time point and the number of physical, fomite-mediated and near contacts one makes during that process. To the extent that polling places are crowded, require people to wait in lines, involve interacting with polling staff or other voters at a close distance, move people through the process slowly, are poorly ventilated and/or involve people touching objects like pens, paper, or surfaces within the voting booth, they constitute a risk to voters. Similarly, if voters or poll workers use toilets that are also used by others, they can be put at risk. The data supporting some aerosol transmission of Covid-19 provides evidence that poorly ventilated areas where crowding may take place pose risk to those using these facilities. The probability that a person who is exposed to Covid-19 in this setting will go on to develop severe Covid-19 disease or to die depends on the age of that person and his/her underlying health status. Given the relatively high prevalence of relevant co-morbidities (obesity, hypertension, diabetes), the proportion of the population over 60, and the fact that older people are more likely to vote than younger people (on a nationwide basis, 66 percent of over 65 years compared to 35.6 percent of 18-29 years in the 2018 national mid-term elections [54]), there is a substantial risk that an infection with Covid-19 in North Carolina could result in symptomatic disease, hospitalization or death.
33. I was asked to address the likelihood of a persistent or increased risk of transmission of Covid-19 in the fall in the weeks/months leading up to November 3, 2020. Epidemiologists have projected a number of future Covid-19 epidemic trajectories based on a range of different possible scenarios but all of these scenarios are similar in that they
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predict that it is highly likely that Covid-19 will continue to circulate at its current level or at an even higher level than currently in October and November of 2020. The likelihood of continued transmission of Covid-19 in the fall 2020 can be estimated by modeling the epidemic process. Mathematical models simulate epidemics under a variety of scenarios using “parameters” obtained from empirical (data-driven) studies. Typically, a model uses estimates of the relative transmissibility of an infectious agent, the average number of contacts people in different age groups make and the duration of infectiousness of the virus to reproduce the epidemic trajectory that has been observed. Then modelers introduce assumptions about the impact of interventions, for example, the number of social contacts that occur when social distancing measures are in place and re-run the model with these hypothetical parameters to determine what effect these changes will have. Over the past several months, multiple modeling teams have developed these kinds of models, and while they often obtain different results depending on various differences in the assumptions made, all show that reducing the number of social contacts, especially in the presence of asymptomatic infection, will “flatten” or reduce the epidemic curve. For example, one such model, reported in Emerging Infectious Diseases this week, investigated the effectiveness of social distancing interventions in a mid-sized city. Modeled interventions included reducing the number of contacts made by adults greater than 60 years of age, adults 20–59 years of age, and children under 19 years of age for six weeks. The modelers found that these interventions delay or flatten the epidemic curve and that even modest reductions of
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contacts could reduce the number of new cases and deaths by 20 percent. Notably, however, when interventions ended, the epidemic rebounded [53].
34. The expected future trajectory of Covid-19 depends on a number of factors including the level of “herd immunity” that has already been achieved by the circulating of the infection, the extent of social mixing that occurs, and the possibility that SARS-CoV2 will be more transmissible in cooler, drier weather.
35. First, herd immunity is achieved when enough people in a population have been infected and developed immunity so that the likelihood that an infectious person will come into contact with a susceptible person is low. This concept is illustrated in the graphic below. When an infectious person encounters only susceptible people, he or she can infect all of them but when most of the people an infectious person encounters are immune, relatively few people will be infected by that infectious case. Table 4 Herd Immunity (From https://www.technologyreview.com/2020/03/17/905244/what-is-herd-immunity-and-canit-stop-the-coronavirus/)
36. A general rule of thumb is that herd immunity can only be achieved when the proportion of people in a population who are immune is equal to 1-(1/R0), where R0
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refers to the basic reproductive number of an infectious disease. This term is defined as the number of people who, on average, will be infected by a single infectious person in an entirely susceptible population. The basic reproductive number of SARS-CoV-2 is estimated between two and three, with an average of about 2.6. This means that about 60 percent of the population would need to be immune before we see Covid-19 cases level out (in the absence of interventions such as social distancing). At present, it is unclear what proportion of the US population is seropositive (in other words, has evidence of an immune response to the infection), but no study conducted in the US to date has suggested that more than 20-30 percent of any specific community is immune and most studies suggest that the number is closer to 2-3 percent. A recent study from Spain, one of the countries that has been most affected by the epidemic, found that only 2 percent of the population was immune [30]. Therefore, it is highly unlikely that, short of a catastrophic increase in circulating virus, herd immunity will be achieved by November 2020. Furthermore, the lack of herd immunity is in part due to social distancing that has taken place to date and this means that as a population, we remain highly vulnerable to epidemic spread.
37. Secondly, it is highly likely that with the relaxation of social distancing measures and the end of “lock-down” the number of social contacts that people make will increase and that, therefore, the incidence of infection will increase accordingly. There is a linear relationship between the average number of social contacts individuals make and the reproductive number of the infection; as social contacts increase, the incidence of infection will increase proportionately.
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38. Third, epidemic spread in the fall and winter could be driven by potential worsening of the epidemic due to changes in temperature or humidity that may be associated with higher viral stability with cooler and drier conditions, seasonal changes in host immunity and/or changes in human behavior (e.g., spending more time indoors). In the fall and winter, the outdoor air is colder, and the air is drier both indoors and out. For influenza, laboratory experiments have shown that absolute humidity — the amount of water vapor in the air — strongly affects viral transmission, with drier conditions being more favorable [31]. Lab studies on SAR-CoV-1 have also confirmed that viruses are stable for longer periods in cooler, drier environments [32]. However, multiple recent studies have suggested that SARS-CoV-2 transmission is possible in many different climates [33, 34].
39. Seasonal differences in transmission are also affected by differences in the ways people congregate in different seasons. In the fall and winter, people tend to spend more time indoors with less ventilation and less personal space than they do in the summer. Schools have been identified as the sites of much transmission of respiratory viruses including those that cause measles, chicken pox and influenza. [35, 36]. However, to date, the role of children in the transmission of SARS-CoV-2 is not clear and the relevance of the timing of school openings is not known. Finally, it is likely that host immunity is affected by seasonal changes. One hypothesis has focused on melatonin which has some immune effects and is modulated by the photoperiod [37], which varies seasonally. Vitamin D levels have also been associated with improved human immune responses -
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these levels depend in part on ultraviolet light exposure which is higher in summer. There is strong evidence for the possible role of vitamin D supplementation in reducing the incidence of acute respiratory infection, as documented in a meta-analysis of randomized trials [38]. To summarize the evidence for seasonal trends in SARS-CoV-2, it is reasonable to expect that, like other beta-coronaviruses (a family of viruses with shared genetic characteristics), it may transmit somewhat more efficiently in fall and winter than summer. Table 5 Possible Covid-19 scenarios [38]
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40. These considerations have guided most of the modeling projections on the expected future trajectory of SARS-CoV-2 spread. The Center for Infectious Disease Research and Policy (CIDRAP) recently published a document where they drew lessons from previous influenza pandemics to predict the future trajectory of Covid-19 [39]. They summarize three different possible scenarios as illustrated in the above figure. In the first scenario, the first spring wave of Covid-19 that is currently underway will be followed by a series of repetitive smaller waves that occur through the summer and then consistently over a one- to two-year period, gradually diminishing sometime in 2021. These waves would be expected to vary geographically depending on what interventions are in place and how and when they are relaxed. Depending on the height of the peaks, this could lead to periodic re-implementation and interruption of social distancing measures over the next one to two years.
41. In the second and most likely scenario, the current first wave of Covid-19 will be followed by a larger wave in the fall or winter of 2020 and one or more smaller subsequent waves in 2021.
42. This pattern is what was seen with the 1918-19 influenza pandemic in which a small wave began in March 1918 but transmission leveled off during the summer months. This was followed by a much larger peak which occurred in the fall of 1918 and a third peak which occurred during the winter and spring of 1919. The 1957-58 and 2009-2010 influenza pandemics followed a similar pattern, with a smaller spring wave followed by a much larger fall wave [40]. Given the many similarities between how SARS-CoV-2 and
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influenza are spread, it is expected that Covid-19 will behave in a similar way, and most epidemiologists expect that incidence will increase in the fall and winter months of 20202021.
43. In the third scenario proposed by the CIDRAP team, the first wave of Covid19 in spring 2020 would be followed by persistent ongoing transmission and disease incidence without a clear wave pattern. This third scenario might not lead to the reinstitution of mitigation measures, although cases and deaths will continue to occur especially in areas where risk factors for disease and death are common.
44. Whichever scenario the pandemic follows, it is highly likely that Covid-19 activity will continue for at least another 18 to 24 months, with hot spots arising periodically in diverse geographic areas. In the period prior to the widespread use of an effective vaccine, this spread will continue to lead to serious disease and death in at-risk groups As the pandemic wanes, it is likely that SARS-CoV-2 will continue to circulate at lower levels in the human population and will synchronize to a seasonal pattern with diminished severity over time, as other coronaviruses, such as the beta-coronaviruses OC43 and HKU1, [41] and past pandemic influenza viruses have done.
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45. I was asked to describe the Covid-19 situation in North Carolina. Table 6 County-specific Covid-19 prevalence for North Carolina by May 21, 2020. (from https://covid19.ncdhhs.gov/)
46. To assess the risk of serious disease given a Covid-19 infection, we can turn to the existing data on the prevalence of specific risk factors in the state. The CDC has documented that 33 percent of North Carolinians are obese and an additional 35 percent are overweight; 35 percent have a diagnosis of high blood pressure and 13.1 percent have diagnosed diabetes mellitus [45, 46, 47]. 16.3 percent of the state’s population is 65 years old or over [48]. It is useful to compare the prevalence of different co-morbidities associated with poor outcomes in North Carolina to other states. The figures below give county-level rates of hospitalizations for coronary heart disease and hypertension demonstrating that North Carolina has comparatively high rates of these diseases and the age distribution of the population.
47. It is useful to compare the prevalence of different co-morbidities associated with poor outcomes in North Carolina to other states. The figures below give county-level rates of hospitalizations for coronary heart disease and hypertension demonstrating that
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North Carolina has comparatively high rates of these diseases and the age distribution of the population. Table 7. Rates of hypertension and Coronary Heart Disease Nationally. From (https://www.medrxiv.org/content/10.1101/2020.04.08.20058248v1)
48. The Kaiser Family Foundation has developed a method to estimate the proportion of a state’s population at elevated risk for serious Covid-19 illness [49]. Using data from the CDC’s 2018 Behavioral Risk Factor Surveillance System (BRFSS), they estimated the total number of at-risk adults by state—based on the revised definition from the CDC—of adults who are at higher risk of serious illness if they get infected with coronavirus. The relevant factors include ages 65 or older, heart disease, chronic obstructive pulmonary disease (COPD), uncontrolled asthma, diabetes, or a BMI greater than 40. Based on this analysis, 39% of adults over age 18 in North Carolina are at risk for serious disease with older adults making up 54.2% of those at high risk.
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Table 8 CCVI Score components [48]
49. In another nation-wide assessment of risk, the Surgo Foundation has developed a Covid-19 community vulnerability index (the CCVI) to identify communities at especially high risk of being affected by Covid-19 [50]. The CCVI combines indicators specific to Covid-19 with the CDC’s social vulnerability index, which measures the expected negative impact of any type of disaster. The indicators are based on the themes listed below.
50. On this scale, North Carolina scored a 98 out of 100 with 100 being the most vulnerable. It ranked second among the states on this measure, mostly because its high (poor) score in the area of healthcare system factors. These data suggest that in the event of further spread of Covid-19, North Carolina may experience higher levels of disease, disability and death than other states experiencing the same amount of transmission.
51. I was asked if herd immunity, progress in vaccine development or the development of drugs to treat Covid-19 will alter the expected course of the Covid-19
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pandemic in the United States and specifically North Carolina. To date, the proportion of the population that is likely to be immune is far less than that that required to achieve herd immunity. This is unlikely to change significantly before November. Although recent studies of the temporal trajectories of the appearance of SARS-CoV-2 antibodies show that most people who are infected with the virus do develop an antibody-mediated immune response, it is not yet clear whether this response is adequate to protect people from future infection or for how long it might be protective. Other coronaviruses, such as those that cause colds, are known to provide protection for periods of approximately one year and this experience has led most Covid-19 experts to accept the “educated guess” that after being infected with SARS-CoV-2, most individuals will have an immune response which will offer some protection over the medium term — at least a year — and then its effectiveness might decline. Until there is empirical evidence of how well-protected previously infected people are in the future, there is no way to confirm or deny the existence of long-term immunity.
52. An effective vaccine is extremely unlikely to have been developed, tested and widely distributed before November. Vaccine development has proceeded at an unprecedented pace. More than 110 candidate vaccines are under development. A number of companies and research teams already have candidate vaccines that are either in human trials (eight have started) or close to ready to trial in humans. The most advanced of these seems to be the ChAdOx1 nCoV-19 vaccine being developed by a group in Oxford, England. The speed with which these vaccines are being developed is partly due to the fact
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that a great deal of work was done on a SARS-CoV-1 vaccine after the 2002 epidemic and some of that work can be applied to this organism.
53. Despite this extraordinarily rapid progress, it is important to realize that the usual time frame from development to widespread use of a vaccine is over ten years. New vaccines require a complex set of trials to establish safety, immunogenicity, optimal dosing, etc. Phase 1 trials are usually conducted in small groups of healthy volunteers and are designed to establish whether serious adverse effects occur with escalating doses of the agent and whether the vaccine produces the expected immune response. Phase 2 trials are designed to replicate Phase 1 results in a more diverse population of volunteers, to assess whether the expected immune response is generated, and to test different vaccine schedules. Once safety, immunogenicity and optimal dosing are established, Phase 3 studies are conducted to determine vaccine efficacy. Phase 3 studies are usually much larger than phase 1 or 2 studies and are conducted in people at risk for the infection in question. So the time frame of these trials depends on the actual incidence of infection and is expected to be shorter in regions with very high rates of disease. The completion of all three steps is required for a vaccine to be approved by the FDA. Once a vaccine is approved, it must then be manufactured at a scale that will provide adequate coverage for a large population.
54. The White House has recently announced an initiative, “Operation Warp Speed,” to expedite the development of a vaccine that will be available to the US population. Although many scientists question the timeline proposed by the project, the
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goal is to speed up the development and production of a vaccine so that 100 million doses are available in November of 2020 and the remaining 200 million doses needed to vaccinate the US population are ready by early 2021. Thus, even in the most optimistic scenario, it is highly unlikely that a vaccine will have been distributed and had time to induce an immune response in a significant number of Americans by November 3, 2020.
55. Although new and repurposed drugs are being tested and some may be found to be helpful in treating severe Covid-19, this is unlikely to have a major impact on the transmission of the virus and the risk of severe disease or death by November 2020. A number of antiviral drugs are currently being developed and other existing drugs are being “repurposed” as potential therapies for Covid-19. The hope is that these drugs will reduce the rate of death and severe disease in people who are treated with them. As of mid-April, the FDA website had listed 72 active and 211 planned Covid-19 drug trials and almost 1000 drug-development proposals have been submitted to the agency. To date, only Remdesivir has been shown in a major, randomized control trial to reduce the duration of illness in Covid-19 patients. In that study, Remdesivir reduced the median time to recovery in hospitalized patients with advanced Covid-19 disease and lung involvement from 15 days for those who received placebo to 11 days for patients treated with Remdesivir [51]. The researchers also noted a survival benefit (which was not “statistically significant”) with the Remdesivir group experiencing an 8.0 percent mortality rate compared to 11.6 percent for the placebo group. This suggests that even with the approval of the drugs that have been
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found to be effective in clinical trials, people with severe Covid-19 are at risk for death as well as the long-term effects of lung damage and other sequelae of infection detailed above.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 2nd day of June, 2020.
Megan Murray, MD, MPH, ScD
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29. https://www.ucsf.edu/news/2020/05/417356/initial-results-mission-district-covid19-testing-announced
30. Personal communication from Miguel Hernan of the Epicos study. 31. Eriko Kudo, Eric Song, Laura J. Yockey, Tasfia Rakib, Patrick W. Wong, Robert
J. Homer, Akiko Iwasaki. Low ambient humidity impairs barrier function and innate resistance against influenza infection. Proceedings of the National Academy of Sciences, May 13, 2019; DOI: 10.1073/pnas.1902840116 32. Miyu Moriyama, Walter J. Hugentobler, Akiko Iwasaki, Seasonality of Respiratory Viral Infections. Annual Review of Virology 2020 7:1 33. Luo w, Majumder MS, Liu D, Poirier C, ] Mandl KD, Lipsitch M, Mauricio Santillana, The role of absolute humidity on transmission rates of the COVID-19 outbreak, https://www.medrxiv.org/content/10.1101/2020.02.12.20022467v1 34. Xie J, Zhu Y. Association between ambient temperature and COVID-19 infection in 122 cities from China. Sci Total Environ. 2020;724:138201. doi:10.1016/j.scitotenv.2020.138201 35. Jackson C, Vynnycky E, Mangtani P. The Relationship Between School Holidays and Transmission of Influenza in England and Wales. Am J Epidemiol. 2016;184(9):644‐651. doi:10.1093/aje/kww083 36. Luca, G.D., Kerckhove, K.V., Coletti, P. et al. The impact of regular school closure on seasonal influenza epidemics: a data-driven spatial transmission model for Belgium. BMC Infect Dis 18, 29 (2018). https://doi.org/10.1186/s12879-0172934-3 37. Silvestri, M., Rossi, G.A. Melatonin: its possible role in the management of viral infections-a brief review. Ital J Pediatr 39, 61 (2013). https://doi.org/10.1186/1824-7288-39-61 38. Martineau AR, Jolliffe DA, Hooper RL, et al. Vitamin D supplementation to prevent acute respiratory tract infections: systematic review and meta-analysis of individual participant data. BMJ. 2017;356:i6583. Published 2017 Feb 15. doi:10.1136/bmj.i6583 39. Covid-19. The Cidrap View. https://www.cidrap.umn.edu/sites/default/files/public/downloads/cidrap-covid19viewpoint-part1_0.pdf 40. Saunders-Hastings PR, Krewski D. Reviewing the History of Pandemic Influenza: Understanding Patterns of Emergence and Transmission. Pathogens. 2016;5(4):66. Published 2016 Dec 6. doi:10.3390/pathogens5040066 41. Kissler SM, Tedijanto C, Goldstein E, Grad YH, Lipsitch M. Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period. Science. 2020;368(6493):860‐868. doi:10.1126/science.abb5793 42. https://covid19.ncdhhs.gov/dashboard
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43. https://www.tysonfoods.com/news/news-releases/2020/5/tyson-foods-inc-releasesresults-covid-19-testing-wilkesboro-nc-plant
44. https://www.ncdps.gov/our-organization/adult-correction/prisons/prisons-info-covid19#data
45. https://www.cdc.gov/obesity/data/index.html 46. https://www.cdc.gov/bloodpressure/maps_data.htm 47. http://main.diabetes.org/dorg/PDFs/Advocacy/burden-of-diabetes/north-
carolina.pdf 48. https://www.census.gov/quickfacts/geo/chart/US/AGE775218 49. https://www.kff.org/coronavirus-covid-19/issue-brief/state-data-and-policy-
actions-to-address-coronavirus/ 50. https://precisionforcovid.org/ccvi 51. Beigel JH, Tomashek KM, Dodd LE, et al. Remdesivir for the Treatment of
Covid-19 - Preliminary Report [published online ahead of print, 2020 May 22]. N Engl J Med. 2020;10.1056/NEJMoa2007764. doi:10.1056/NEJMoa2007764 52. The airborne lifetime of small speech droplets and their potential importance in SARS-CoV-2 transmission. Valentyn Stadnytskyi, Christina E. Bax, Adriaan Bax, Philip Anfinrud. Proceedings of the National Academy of Sciences May 2020, 202006874; DOI: 10.1073/pnas.2006874117 53. Matrajt L, Leung T. Evaluating the effectiveness of social distancing interventions to delay or flatten the epidemic curve of coronavirus disease. Emerg. Infect. Dis. 2020 Aug. https://doi.org/10.3201/eid2608.201093 54. https://www.census.gov/library/stories/2019/04/behind-2018-united-statesmidterm-election-turnout.html
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Harvard Medical School/Harvard School of Dental Medicine Curriculum Vitae

Date Prepared: Name: Office Address:
Home Address:
Work Phone: Work Email: Work FAX: Place of Birth:

May 2020
MEGAN MURRAY Harvard Medical School 641 Huntington Avenue, 4A07 Boston, MA 02115 21 Prince Street Cambridge, MA 02139 (617) 432-2781 megan_murray@hms.harvard.edu (617) 432-2565 Minnesota

Education

1980

AB Magna cum laude

Philosophy

Dartmouth College, Dartmouth, NH

1990

MD

Medicine

Harvard Medical School, Boston, MA

1997

MPH

Public Health

Harvard School of Public Health, Boston, MA

2001

ScD

Epidemiology (James Robins)

Harvard School of Public Health, Boston, MA

Postdoctoral Training 1990-1991 Internship
1991-1993 Residency

Internal Medicine Internal Medicine
39

Massachusetts General Hospital, Harvard Medical School, Boston, MA
Massachusetts General Hospital, Harvard Medical School, Boston, MA

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1993-1997 Fellowship

Infectious Disease

Faculty Academic Appointments

1997-2006 Instructor in Medicine Medicine

1999-2000 Research Associate

Epidemiology

2001-2007 Assistant Professor

Epidemiology

2004-

Associate

2006-2009 Assistant Professor 2007-2013 Associate Professor

Medicine Epidemiology

2009-2012 Associate Professor Medicine

20122013-

Professor Professor

Global Health and Social Medicine
Epidemiology

2017-

Ronda Stryker and William Johnston Professor of Global Health

Global Health and Social Medicine

Appointments at Hospitals/Affiliated Institutions

01/98-09/02 Clinical Assistant in Medicine

Dept. of Internal Medicine

09/02-09/06 Assistant in Medicine Dept. of Internal Medicine

40

Massachusetts General Hospital, Harvard Medical School, Boston, MA
Harvard Medical School Harvard School of Public Health Harvard School of Public Health Broad Institute, Cambridge, MA Harvard Medical School Harvard School of Public Health Harvard Medical School
Harvard Medical School
Harvard T.H. Chan School of Public Health Harvard Medical School
Massachusetts General Hospital Massachusetts General Hospital

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09/06-02/08 Assistant Physician

Dept. of Internal Medicine

02/08-09/10 Consultant (Medicine Dept. of Internal Medicine Services)

Massachusetts General Hospital
Massachusetts General Hospital

41 Case 1:20-cv-00457-WO-JLW Document 12-1 Filed 06/05/20 Page 41 of 100

Other Professional Positions

Year 1980-1984

Position Title

Institution

Level of effort

Refugee Camp Coordinator Intergovernmental Committee for

Migration, Phanat Nikhom, Thailand

1984

Public Health Educator

Matanyok Rural Training Project, Rift Valley, Kenya

2004-

Research Director

Partners In Health, Boston

36 days per year

Major Administrative Leadership Positions

Local 2007-

Director of Research

2010-

Director

2012-2013 Member

Committee Service
Local 1986-1990 Curriculum Committee

Division of Global Health Equity, Brigham and Women’s Hospital and Partners In Health, Boston, MA Research Core, Department of Global Health and Social Medicine, Harvard Medical School, Boston, MA Executive Leadership Team, Global Health Delivery Partnership, Harvard Medical School, Brigham and Women’s Hospital and Partners In Health, Boston, MA
Harvard Medical School Member

2001-

Infectious Disease-Epidemiology Graduate Harvard School of Public Health

Admissions Committee

Member

2003-2005 Faculty Council

Harvard School of Public Health Member

2004-

Steering Committee for the Residency in Global Health

Brigham and Women’s Hospital Member

2005-

Human Subjects Committee

Harvard School of Public Health Member

2005

Task Force on Women in Sciences and Engineering

Harvard University, Cambridge, MA Member

42

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2006

President’s Task Force on Avian Influenza Harvard University Member

2006

Search Committee for Dean of Educational Harvard School of Public Health

Programs

Member

2007

Epidemiology Curriculum Committee

Harvard School of Public Health Member

2007

Search Committee for Compliance Officer Harvard School of Public Health Member

2007

Search Committee for Assistant Professor in Brigham and Women’s Hospital the Division of Social Medicine and Health Member Inequalities

2008

Search Committee for Assistant Professor in Harvard School of Public Health

Infectious Disease Epidemiology

Member

2009

Search Committee for Assistant Professor in Harvard School of Public Health

Infectious Disease Epidemiology

Chair

2010

Global Health Epidemiology Committee

Harvard School of Public Health Member

2010-2011 Strategic Leadership Team

Brigham and Women’s Hospital Member (Co-Chair Community Engagement Mission Area)

2012

Ad Hoc Committee to Evaluate Professorial Harvard Medical School

Candidate

Member

2012-2016 Professor of Population Medicine Search Committee

Harvard Pilgrim Health Care Institute Member

2012

Ad Hoc Evaluation of Professorial Appointment Committee

Harvard Medical School Member

2012

Global Health Instructor Search Committee Harvard Medical School Co-chair

2014-2016 Pershing Square Professorship in Global Health Search Committee

Harvard Medical School Chair

2015

Search Committee for Professor of Biomedical Informatics
43

Harvard Medical School Member

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2016-

Department of Biomedical Informatics Executive Committee

Harvard Medical School Member

2016-

Committee on Promotions, Reappointments, Harvard Medical School

and Appointments (P&R)

Member

2018-2019 Dean’s Innovation Grants Review Committee

Harvard Medical School Member

2018-2019 Therapeutics Planning Foundry Committee Harvard Medical School Member

2019-

Center for Computational Biomedicine (CCB) Advisory Committee

Harvard Medical School Member

2019-

Faculty Council

Harvard Medical School/Harvard School of Dental Medicine Member

2020-

Ariadne Spark Grant Review Committee

Harvard Medical School Member

2020-

Massachusetts Consortium on Pathogen Readiness (MassCPR) Working Group on Epidemiology

Harvard Medical School Co-Lead

National and International 2005-2007 Committee on Infectious Diseases among
Gulf War Veterans

Institute of Medicine, Washington, DC Member

2006-2010 IHR Roster of Experts in Modeling Analytical Epidemiology

World Health Organization, Geneva, Switzerland

2007-2009 Global Task on XDR Tuberculosis

World Health Organization

2007

External Review Committee for TB Program Montreal Chest Institute, McGill University Montreal, Canada Member

2008-2011 STAG (Strategic and technical advisory group) TB

World Health Organization Member

44

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2008

39th Union World Conference 2008

International Union TB and Lung Disease

Drug Resistance /MDR-TB management II Paris, France, Coordinator

2009

Panel to Review the DST/NRF Centre of Excellence for Biomedical TB Research

National Research Foundation, Pretoria, South Africa, Convener

2009-2010

Expert Panel on Tuberculosis and Diabetes

Union of TB and Lung Disease and World Diabetes Federation Member

2010-2015 Advisory Group to Fogarty Grant

Member Public Health Research Institute New Jersey

2010-

Working Group on New Diagnostics

Member, Stop TB Partnership Geneva, Switzerland

2013-2014 Millennium Villages Project Independent Expert Group Meetings

Member Earth Institute, Columbia University Millennium Development Goals Centre West and Central Africa Dakar, Senegal

2013-2014 External Advisory Committee on Tuberculosis

Member Gates Foundation New York City, NY

2016-

Critical Path to TB Drug Regimens (CPTR) Member Initiative

Professional Societies

1995-

Infectious Disease Society of America

1997-

Society for Epidemiologic Research

2007-

International Union of TB and Lung Disease

2007-

Global Health Council

2009-

American Society for Tropical Medicine

Member Member Member
Member Member

45

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Grant Review Activities

2004

Fogarty International Center/NIH Study

Section ZRG1 ICP-3(03)

NIH, Bethesda, MD Member

2005

Improving Tuberculosis Control in Africa; Mathematical Modeling of Intervention Trials

Wellcome Trust Review London, England Member

2008

Postdoctoral Program Review for Indonesian PhDs

Royal Netherlands Academy of Arts and Sciences (KNAW), Amsterdam, Holland Referee

2008

Center for AIDS Research Scholar and

Harvard School of Public Health

Feasibility Scientific Reviewer Committee Member

2009, 2010 Center for Scientific Review/NIH study section l ZRG1 IDM-P 50 R

NIH Ad hoc Member

2009-2016

Center for Scientific Review/NIH Study Section on Clinical Research and Field Studies of Infectious Diseases (CRFS)

NIH Permanent Member

2009

Wellcome Trust London, England

Ad hoc Reviewer

2010

National Science Foundation South Africa

Ad hoc Reviewer

2012 2015 2017
2018

Center for Scientific Review/NIH Study Section ZRG1 AARR-K (52)
Center for Scientific Review/NIH Study Section ZRG1 IMST-K (50)S
Center for Scientific Review/NIH Study Section ZAI1 LG-M (M1) NIAID Clinical Trial Implementation Cooperative Agreement (U01/R01)

NIH Ad-hoc Member
NIH Ad-hoc Member
NIH Ad-hoc Member

Center for Scientific Review/NIH Clinical Research and Field Studies of Infectious Diseases [CRFS] Study Section ZRG1 IDM-R (02)

NIH Ad-hoc Member

46

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2019

Center for Scientific Review/NIH Study Section ZRG1 IDM-R (50)

NIH Ad-hoc Member

Editorial Activities Ad hoc Reviewer
Science Nature Medicine New England Journal Medicine Lancet Lancet Infectious Diseases Lancet Pulmonary Medicine Epidemiology American Journal of Epidemiology International Journal of Tuberculosis and Lung Diseases British Medical Journal British Medical Journal, Global Health Emerging Infectious Diseases PLoS Medicine PLoS Pathogens PLoS One Scandinavian Journal of Infectious Disease Journal of the American Medical Association American Journal Respiratory and Critical Care Medicine Journal of Clinical Microbiology Antimicrobial Agents and Chemotherapy PNAS (Proceedings of the National Academy of Sciences) Bulletin of the World Health Organization Clinical Infectious Disease Journal Infectious Disease Annals of Internal Medicine American Journal of Tropical Medicine and Hygiene Royal Society Proceedings B BMC Medicine BMC Genomics BMC Public Health BMC Biology BMC Health Services Interface Epidemics Royal Society Open Science
47

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mBio

Other Editorial Roles

2004-

Member of Editorial Board

2005-2012 Associate Editor

2009-

Associate Editor

European Journal of Epidemiology
International Journal of TB and Lung Disease
PLOS Medicine

Honors and Prizes

1980

Dartmouth General

Fellowship

Dartmouth College

1990

Aesculupian Society

Harvard Medical School

1990

Paul Dudley White Fellowship

Harvard Medical School

1996

Howard Hughes PostDoctoral Research Fellowship

Howard Hughes Medical Institute

1997

Tapplin Fellowship Award

Harvard School of Public Health

2001

Teaching Award

School of Public Health, Boston University

2002

Teaching Award

Harvard School of Public Health

2004

Ellison Senior Scholar

Ellison Medical Foundation

2008

Recognition Award

Harvard School of Public Health

2010

Nominated for Mentorship Award

Harvard Medical School

2010-11 Landolt Chair

Ecole Polytechnique Federale de Lausanne

Report of Funded and Unfunded Projects 48

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Funding Information

Past

1997-2003

Molecular epidemiology of tuberculosis NIH/NIAID 1K08AI001430-01 PI This study explored the use of molecular epidemiologic data for epidemiologic inference and evolutionary studies of M. tuberculosis.

2000-2003

Population-based investigations of tuberculosis NIH R01AI046669 Co-investigator In this project, population-based genetic studies of human specimens were used to determine the clinical consequences of mutations in genes associated with bacterial antibiotic resistance and virulence.

2002-2005

Transmissibility and fitness of drug-resistant TB, Sverdlovsk WHO T9-181-270 PI This project assessed epidemiologic risk factors for TB drug resistance, identified locally prevalent drug-resistance profiles, used molecular epidemiological analyses to measure association between clustering and specific drug-resistance mutations, and assessed demographic distribution of drug resistance in prison and local community, evaluating extent of transmission between the two groups.

2003-2005

INH resistance in Beijing/W Isolates of M. tuberculosis NIH R21 AI055800 Co-investigator This project sought to identify risk factors associated with Isoniazid resistance which may be pathogen and/or host- specific and which may lead to acquisition of MDR-TB, after controlling for compliance.

2003-2005

Decision analysis for TB control Bill Melinda Gates Foundation Co-investigator This project developed a decision-analytic model that could be used with data from different countries to assess the potential benefits, costs, and cost-effectiveness of the full range of policy options for dealing with MDR-TB, including preventive therapy, active case finding, diagnostic testing and treatment.

2004-2009

Curriculum in Emerging Infectious Diseases NIH/NIGMS K073000-04 PI ($363,933)

49

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This project aimed to develop and implement a core course in transmission dynamics of emerging infectious diseases, taking an interdisciplinary approach that incorporates casebased seminars and short courses.

2005-2007

Evaluation of a community based HIV-TB adherence support program in a government ARV-rollout site in KwaZulu-Natal, South Africa Harvard University Center for AIDS Research Co-investigator This study evaluated the feasibility of community-based adherence support program designed to improve HIV/AIDS and TB outcomes among a cohort of HIV patients in a government ARV treatment program.

2006-2007

Ferroportin Polymorphisms and Tuberculosis Susceptibility William F. Milton Fund/Harvard Medical School PI This study assessed the association between Ferroportin (FPN1) mutations, iron intake and TB susceptibility in South Africa.

2006-2010

Macrophage Iron Metabolism and Tuberculosis Infection NIH/NIAID R21 AI068077-01 PI ($271,375) We elucidated the role of host macrophage iron status on the growth of M. tuberculosis and explored the impact of iron and ferroportin status on cellular immune function.

2006-2011

Epidemiology of Multidrug-Resistant Tuberculosis in Peru NIH/NIAID R01 A1057786-01A2 Co-investigator The goal of this project is to provide new knowledge about the transmission dynamics of multidrug-resistant tuberculosis in a high TB-burden area in Peru and will measure withinhousehold transmission of various strains of TB, assess the impact of socio-demographic and clinical confounders and risk modifiers, and measure associations between specific resistance mutations and phenotypes.

2007-2009

A Postmortem Study of the Burden of MDR and XDR Tuberculosis Among Adult Inpatient in KZN Deaths Occurring at Edendale Hospital Kwazulu-Natal South Africa Massachusetts General Hospital PI ($60,050) This study estimated the burden of tuberculosis among seriously ill individuals in KZN and measured the proportion of TB among these patients which is drug-resistant by conducting postmortem tests at Edendale Hospital KZN.

2007-2014

Epidemiology and Transmission Dynamics of MDR/XDR Tuberculosis NIH/NIAID U19 A1076217 PI ($13,422,751) We conducted a series of linked interdisciplinary research projects focused on the emergence and transmission of multidrug and extensively drug resistant TB: a cohort
50

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study of host and microbial factors associated with MDR and XDR TB in Lima, Peru; a study characterizing M. tuberculosis strain diversity and its contribution to the emergence and spread of MDR; and a study using epidemic and individual predictive models to support public health policy and clinical decision-making for MDR and XDR TB.

2009

Systematic Reviews of Diabetes and Tuberculosis Interactions PI ($25,000) International Union of TB and Lung Disease We evaluated the links between TB and diabetes by conducting a series of systematic reviews and meta-analyses.

2009-2012

Bioaerosols Production and Influenza Study Pulmatrix Inc. PI ($348,393) The project measured the particle production in persons diagnosed with active influenza, measured the quantity and size distribution of influenza virus particles generated and exhaled by persons infected with influenza during normal tidal breathing, and measured the secondary attack rate of influenza within their households.

2009-2013

Treat TB: Technology, Research, Education and Technical Assistance for TB USAID (subcontract through International Union against TB and Lung Disease) Co-investigator The subproject aims were to develop a modeling tool to assist national policy-makers in selecting the appropriate tests and strategies for the diagnosis of tuberculosis in specific types of epidemiological settings, with an emphasis on low- and middle-income countries, taking into account a variety of modifying factors including drug resistance and HIV.

2009-2014

Strengthening and Studying Community Based Integrated Primary Health Care Systems in Rural Rwanda Doris Duke Foundation Co-investigator The PHIT Partnership strengthened integrated primary health care delivery in Rwanda. The Partnership deployed a care-based intervention, conduct implementation research to generate data for ongoing monitoring, evaluation, and quality improvement of the intervention.

2009-2014

MIDAS Center for Communicable Disease Dynamics NIH/NIGMS U54 GM088558-01 Co-investigator This project advanced the quantitative study of communicable diseases through training/education, transdisciplinary research, and public health policy and will develop statistical and novel modeling methods, train mathematical modelers, perform outreach, and develop software for the analysis of communicable disease data.

2012-2013 Identification of GyrA/B Mutations that Predict Fluoroquinolone Resistant TB 51

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Harvard University Center for AIDS Research Co-investigator This project evaluated the correlation between newly-developed molecular genetic probes that can detect mutations in the gryA and gryB genes of tuberculosis which may render them more resistant to first and later generation quinolones.

2013-2014

African Health Facility Capacity to Roll Out Technological Interventions Gates Foundation PI ($17,232) This project summarized the following outcomes across Rwanda health facilities: the percent and number of health facilities with electricity currently; estimate percent of health clinics with electricity within five years; percent and number of facilities with rapid HIV testing available; and the distribution of HIV testing staffing.

Current

2014-2020

Integrated discovery and development of innovative TB Diagnostics NIH/NIAID CETR U19AI109755 PI ($29,218,333) This multi-disciplinary collaboration is designed to enable the discovery of new biomarkers of Mycobacterium tuberculosis drug resistance, identify optimal clinical sampling strategies directed toward detection of Mtb DNA and develop and test a sensitive micro-array based rapid diagnostic. Our long-term goal is to develop a diagnostic strategy that will improve the diagnosis of childhood and DR TB and stem the further spread of the disease. This grant is in a no cost extension phase.

2015-2022

Metabolic Factors that Control the Spectrum of Human Tuberculosis NIH/NIAID TBRU U19AI111224 Co-PI ($19,815,180) This consortium project focuses on the link between host immune and metabolic factors and their impact on progression and persistence of tuberculosis. Teams focusing on human subjects, bio-informatics, and metabolomics work in parallel to identify targets including pathways linking human metabolism and immune response, T cells involved in Mtb response, pathogen determinants of drug resistance and pathogen-shed markers of clinical TB phenotypes. Each project includes validation of these targets in the guinea pig model.

2018-

Metabolic Factors that Control the Spectrum of Human Tuberculosis NIH/NIAID TBRU U19AI111224-04 Supplement Co-PI ($200,000) This supplement to the TBRU consortium project is a new collaborative, multi-disciplinary effort that conducted a genome-to-genome approach aimed at the identification of
52

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interacting molecular patterns in Mtb and the human host. The same approach and new methods will be adaptable and easily applicable to other populations being studied within the TBRU program.

2019-2024

Bacterial Determinants of Treatment Response in Mycobacteria Tuberculosis NIH/NIAID U19AI142793-01 PI ($14,633,712) This study will focus on the discovery of the genetic determinants of drug tolerance and resistance in mycobacteria tuberculosis both through mechanistic bench studies and through a genome wide association study of treatment failure in TB patients.

2019-2021

Randomised trial of an intervention to increase tuberculosis notifications by private practitioners in Indonesia, plus sequencing and susceptibility sub studies CRDF Global u/d USDA (59-0210-06-004) DAA3-19-64909-2 United States Research Leader ($99,917) This study will evaluate whether a tailored intervention package increases notifications of tuberculosis (TB) by private practitioners in Bandung, Indonesia.

2020-2023

Are TB neighbourhoods a high risk population for active intervention? CRDF Global u/d NIAID United States Research Leader ($99,999) This study will confirm whether neighborhoods around known, routinely diagnosed TB index cases are high risk sub-populations which may warrant active intervention to enhance TB control.

Unfunded Projects

2003

Transmission dynamics of SARS (Co-leader) I co-led a team that developed a mathematical model of the transmission dynamics of SARS. (Lipsitch et al. Science 2003)

2005-2011

TB Genome Project (Collaborator) Whole genome sequencing of sets of drug resistant M. tuberculosis isolates. I led a collaboration with the Broad Institute to identify, sequence and analyze progressively resistant isolates of M. tuberculosis to identify drug resistance mutations and to characterize compensatory or enabling mutations. We currently have one manuscript under review and several in preparation.

2006

Cost-effectiveness of testing the blood supply for West Nile Virus (Supervisor) I supervised a doctoral student in the development of a combined transmission/costeffectiveness model on West Nile Virus. (Korves et al. PLoS Med 2006; Korves et al. Clin Infect Dis 2006)
53

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2006-2010

Determinants of tuberculosis (Advisor) I supervised two doctoral students to carry out epidemiologic studies and meta-analyses of the associations between determinants (smoking and diabetes mellitus) and tuberculosis and to use the parameters thus obtained to construct mathematical models assessing the impact interventions directed at these determinants. (Jeon et al. PLoS Med 2008; Jeon et al, Trop Med and Int Health 2010; Lin et al. Lancet 2008; Lin et al. Am J Respir Crit Care Med 2009, Murray M et al, IJTLD 2010, Baker M et al. BMC Medicine 2011, Lin et al. IJTLD 2011). I supervised Dr. Olivia Oxlade on work that is a further extension of this project.

2007-2009

Timing of ART in patients co-infected with HIV and TB in Rwanda: an observational approach (Initiator) I initiated this project and supervised a doctoral student in the collection and analysis of the data. This work led to a paper published in PLoS Medicine (Franke M et al. PLoS Med 2011).

2007-2009

Metabolic modeling of M. tuberculosis (Collaborator) I collaborated with a team of bio-informaticists on a project to fit a metabolic flux model to M. tuberculosis expression data to mycolic acid production. (Colijn et al. PLoS Computational Biology, 2009)

2008-2009

Structural analysis of M. tuberculosis “resistome” (Collaborator) I collaborated with George Church on a project to define the structural basis of drug resistance in M. tuberculosis using sequence data. We published one paper together (Sandgren et al. PLoS Med 2009).

2008-2010

M. tuberculosis isoniazid and quinolone mono-resistance in South Africa (Mentor) I supervised two trainees who are investigating the frequency and outcomes of monoresistance in M. tuberculosis in South Africa. We published two papers in this area. (Jeon C et al, 2010, Jacobson K et al, 2011).

2008-2010

ART Outcomes in Rwanda for 1000 HIV patients (Co-investigator) I provided technical support and supervised the data collection and analysis team. We have published a paper on this topic (Rich et al, 2011).

2009-2010

Within host dynamics of TB and the evolution of drug resistance. (Initiator) I collaborated with my former trainees, Ted Cohen and Caroline Colijn, on a project to model the within-host evolution of drug resistance (Colijn C et al, PLoS One, 2011).

2009-2011

Sex trafficking and HIV transmission in India (Advisor) I supervised a doctoral student in the analysis of data and construction of a mathematical model of HIV transmission among trafficked sex workers in India. We published several papers together.

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2010-2012

Cholera transmission in the Democratic Republic of the Congo and Haiti. (Collaborator and Adviser). I worked with a team including hydraulogists and infectious disease modelers on the transmission routes by which cholera spreads. We published three papers (Rinaldo et al, Proc Natl Acad Sci, 2012; Bompangue et al, PLoS Curr 2012; Bompangue et al, Lancet, 2012).

2012-

Poverty traps in under-resourced settings (Collaborator) I collaborate with Matthew Bonds on a range of studies to understand the role of infectious diseases in creating poverty traps in Rwanda and other under-resourced settings.

2014-2015 MDR TB in India I worked with a Fulbright fellow to assess the burden of MDR TB in India.

2013-2016

Ebola Diagnostics, Asymptomatic Infection and Modeling (Initiator and Collaborator) I worked with the Partners in Health clinical teams in Sierra Leone to evaluate two point of care diagnostic tests and supervised Gene Richardson in a study of asymptomatic Ebola infections and Ibrahim Diakite on a study of dynamic modeling of Ebola vaccination strategies.

2012-

Impact of Health Research Capacity Building (Team Leader) I lead a team focused on the implementation and assessment of Health Research Capacity Building in Africa.

2014-

Yaws epidemiology and impact of mass drug administration (Collaborator) I work with my former student, Eric Mooring, on the evaluation of data collected during a mass drug administration campaign in Papua, New Guinea.

2014-

Health System Strengthening in Madagascar (Collaborator) I work on developing methods to evaluate the impact of health system strengthening in Madagascar and other implementation sites.

2018-2019

Investigation of Services delivered for TB by External care system – especially the Private sector (INSTEP) (Collaborator) I worked on quantitative measure of health seeking pathways and delays, diagnostic and treatment behaviors of private providers and qualitative (or mixed methods) analysis of provider behaviors and the reasons behind them as assessed via direct interviews.

Training Grants and Mentored Trainee Grants

1990-2011

Multidisciplinary AIDS Training Grant NIH NIAID T32AI007387 Mentor (PI: Martin Hirsch)

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The major goal was to provide in depth laboratory experience in a specific research area of virology, immunology, molecular biology, oncology, epidemiology molecular genetics, or molecular therapeutics to selected postdoctoral candidates.

1992-2022

Program for AIDS Clinical Research Training (PACRT) NIH NIAID T32 AI007433 Mentor (PI: Kenneth Freedberg) The major goal is to provide training in quantitative research methodologies with a focus on HIV clinical research to pre-doctoral PhD students and physicians at formative stages in their careers.

1998-2020

Epidemiology of Infectious Diseases NIH NIAID T32 AI007535 Mentor (PI: George Seage) The major goal is to increase the number of graduates who will be capable of drawing on diverse tools – including sophisticated approaches to causal inference, transmissiondynamic modeling, model fitting, population genomics and phylogenetics – in a knowledgeable way to meet the infectious disease threats of a new generation.

2004-2009

Molecular Approaches for Understanding TB Dynamics NIH NIAID K08 5K08AI055985 Co-Mentor to Ted Cohen The major goal of this five-year training program K award focused on the development of new analytic tools to evaluate molecular data from tuberculosis patients.

2009

AMSTH Postdoctoral Fellowship in Tropical Infectious Diseases Mentor to Karen Jacobson The major goal was to fund to conduct research focused on infectious diseases of low and low-middle income countries.

2010-2013

Predicting the impact and cost-effectiveness of technical and non-technical approaches to TB control in low and middle income countries CIHR (Canadian Institute for Health Research) Fellowship MFE106987 Mentor to Olivia Oxlade The goal was to predict, in 3 low and middle income countries, the epidemiologic impact and cost effectiveness of a technical approach to TB control (using improved diagnostic tests for earlier diagnosis of active TB disease) versus a non-technical population level intervention designed to reduce tobacco use and alcohol consumption.

2010-2014

The Economic Impacts of Community-Based Integrated Health Care Systems in Rural Rwanda NIH Fogarty K01 TW008773 Mentor to Matthew Bonds

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The major goal of this K award was to measure the specific economic consequences of expanded community-based integrated primary healthcare in Rwanda by measuring the partial effects of malnutrition, disease, schooling and socioeconomic status on each other.

2011

Modifiable risk factors for tuberculosis disease in children Parker B. Francis Fellowship in Pulmonary Research Mentor to Molly Franke The major goal was to identify modifiable risk factors for TB in children.

2011-2016

Geospatial Clustering and Molecular and Social Epidemiology of Drug Resistant TB NIH Fogarty K01 5K01TW009213 Co-Mentor to Karen Jacobson The major goal of this K award was to estimate the burden of drug resistant TB and assess the heterogeneity of disease burden in different geographic locations, to examine the association of host risk factors and population determinants with regions of high drug resistant TB burden, and to describe the spatial and molecular clustering of strains of drug resistant TB in this province. My role was to mentor Karen Jacobson in research in molecular and social epidemiology of TB.

2012-2013 US-Italy Fulbright Scholarship Mentor to Anna Odone

2012-2016

The Role of Development Assistance for Health in Reducing Child Mortality NIH NICHD 4K01HD071929-05 Epidemiology mentor to Chunling Lu The major goal of this K award was to obtain background knowledge of epidemiology so as to understand the disease profiles of under-five children of different age groups in developing countries.

2013-2014

Controlling Drug Resistant Tuberculosis (TB): A Review of Literature and an Attempt for Designing Innovative Approaches in Indian Setting Core Fulbright Visiting Scholar Research Grant Mentor to Sachin Atre

2013-2015

Gene Mutations and Tuberculosis Resistance American Lung Association Research Award Mentor to Maha Farhat The major goal was to investigate the genetic sequences of known and candidate resistant genes for a large panel of TB drugs, to determine which mutations predict the extent of resistance, and if specific combinations of mutations interact to affect this resistance level. The information will be used to guide the development of a much needed rapid diagnostic test for drug resistant TB.

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2014

Genetic determinants of drug resistance in mycobacterium tuberculosis Parker B. Francis Fellowship in Pulmonary Research Mentor to Maha Farhat The major goal was to investigate the genetic sequences of known and candidate resistance genes for a large panel of TB drugs to determine which mutations predict the extent of resistance and use this information to guide the development of improved diagnostic tests for resistance.

2014-2017

Integrating Pediatric Care Delivery in Rural Healthcare Systems NIH NICHD 5DP5OD019894 Mentor (PI: Duncan Maru) The major goal was to increase the timely engagement in acute care for children to receive evidence-based World Health Organization protocols aimed at reducing child mortality and to implement a Chronic Care Model for pediatric patients under the age of twenty suffering from a chronic disease.

2014-2019

Infectious Disease and Basic Microbiological Mechanisms NIH NIAID T32 2T32AI007061 Mentor (PI: Marcia Goldberg) The major goal is to train scientists who have a career goal of solving medically relevant problems and who elect rigorous laboratory or epidemiologic training in any of the Harvard adult infectious disease programs or other Harvard-based institutions participating in this program.

2015-2017

New Tools for the Interpretation of Pathogen Genomic Data with a Focus on Mycobacterium Tuberculosis NIH Fogarty K01 5K01ES026835 Principal Mentor to Maha Farhat The major goal of this K award was to develop a web-based public interface to several analysis tools, to develop and study an MTB gene-gene network, and to study the performance of methods in current use for the association of genotype and phenotype in pathogens, and develop a generalizable power calculator for the best performing method.

2016-2017

Genetic Determinants of Drug Resistance in Mycobacterium Tuberculosis NIH URM Supplement U19AI109755-03S1 PI & Mentor to Ibrahim Diakite (Total direct costs $82,633) The major goal of this supplement was to develop and validate a prediction model that will define the optimal set of mutations to be assessed to improve the performance of rapid molecular diagnostics.

Report of Local Teaching and Training 58

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Teaching of Students in Courses
Boston University 1998-2001 SPH EB755: Infectious Disease
Epidemiology 34 students of public health

Boston University School of Public Health 2.5-hr sessions per week for 15 weeks

Harvard School of Public Health

2001-2003

ID293: Inference in Infectious Disease Epidemiology 15 students of public health

Harvard School of Public Health 4-hr sessions per week for 8 weeks

2001-2004

EPI225: Infectious Disease Dynamics 5 medical students, 50 students of public health

Harvard School of Public Health 4-hr sessions per week for 8 weeks

2002

ID267: Infectious Disease Epidemiology Seminar 2 medical students, 8 students of public health

Harvard School of Public Health 2-hr sessions per week for 16 weeks

2002-2003

ID229: Epidemiology of Infectious Disease Harvard School of Public Health

Developing Countries

2-hr session

50 students of public health

2002

EPI269: Epidemiological Research in Obstetrics and Gynecology 30 advanced students of public health

Harvard School of Public Health 1-hr session

2003-2006

IMI202: Tuberculosis 10 medical students, 10 students of public health

Harvard School of Public Health 2-hr sessions

2003-2004

ID287: Bioterrorism: Public Health Preparedness and Response 30 students of public health

Harvard School of Public Health 1-hr session

2004-2007 EPI285: Infectious Disease Dynamics 50 graduate students of public health

Harvard School of Public Health 5-hr per week for 16 weeks

2008-2015 EPI501: Dynamics of Infectious Diseases 50 graduate students of public health

Harvard School of Public Health 4-hr sessions per week for 8 weeks

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2008-2010

GHP539: The Social, Political and Economic Dimensions of Infectious Diseases in Developing Countries 20 medical and graduate students of public health

Harvard School of Public Health 2-hr session

2008

IMI 227: Genetics and Genomics of Infectious Diseases: Tuberculosis, Malaria 25 graduate students of public health

Harvard School of Public Health 2-hr session

2008-2015

ID269: Respiratory Epidemiology 18 medical and graduate students of public health

Harvard School of Public 2-hr sessions

2009-2011

IMI202: Tuberculosis the Host, the Organism and the Global 9 graduate students of public health

Harvard School of Public Health 2-hr session

2015, 2017, Epi225

2019

Epidemiology of HIV

30 graduate students of public health

Harvard School of Public Health 2-hr session

2016 -

Epi502: Biology and Epidemiology of Antibiotic Resistance 20 graduate students of public health

Harvard School of Public Health 2-hr session

Harvard University/FAS

2004

FAS Freshman Seminar 24p: How

Epidemics Happen

12 undergraduate students

Harvard College, Cambridge, MA 3-hr sessions per week for 16 weeks

2005-2006

FAS Freshman Seminar 25m: Epidemics as Harvard College

a Metaphor

2-hr sessions per week for 16 weeks

12 undergraduate students

2006-2007

FAS Freshman Seminar 25m: What Epidemics Mean: Infectious Disease in a Social Context 12 undergraduate students

Harvard College 2-hr sessions per week for 16 weeks

Formal Teaching of Residents, Clinical Fellows and Research Fellows (post-docs)

2003

The Transmission Dynamics of M.

Research Seminar

tuberculosis: Models and Molecular

Department of Epidemiology

Epidemiology

Harvard School of Public Health

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2004 2007

Transmission of TB in the Community Invited Lecture
Genetic Heterogeneity in M. tuberculosis

One-hour lecture
Infectious Disease Society of America Boston, MA One-hour lecture
Department of Genetics and Complex Diseases Harvard School of Public Health One-hour lecture

Clinical Supervisory and Training Responsibilities
1996-2007 Attending and supervision of clinical infectious disease fellows/Massachusetts General Hospital

Daily supervision for 6 weeks per year

Laboratory and Other Research Supervisory and Training Responsibilities
2002-2004 Supervision of Julia E. Aledort, doctoral Weekly mentorship for 18 months research fellow/Harvard School of Public Health

2002-2006 Supervision of Stephen Resch, doctoral Weekly mentorship for 18 months research fellow/Harvard School of Public Health

2004-2006 Supervision of Johanna Daily, Master's student /Harvard School of Public Health

Monthly mentorship for 24 months

2007-2008 Supervision of Preetika Muthukrishnan, Weekly mentorship for 24 months Master’s student/Harvard School of Public Health

2009

Supervision of Daniel Pletzer, Undergraduate intern/Upper Austria University of Applied Sciences, Hagenberg, Austria

Daily laboratory mentorship for 3 months

2010

Supervision of Matsie Mphahlele, doctoral candidate at Stellenbosch University, Visiting Fogarty scholar

Weekly mentorship for 3 months

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2010 2018

Supervision of Laurence Laser, visiting Master’s student from Ecole Polytechnique Federale de Lausanne

Weekly mentorship for 9 months

Supervision of Junkun Ren, Master’s student in epidemiology, Harvard T.H. Chan School of Public Health

Mentorship for 3 months

Formally Supervised Trainees and Faculty 1999-2004 Caroline Korves, ScD / Epidemiologist, Analysis Group, Inc.
I was Dr. Korves’s doctoral supervisor at the Harvard School of Public Health. Published two research papers together, one in PLoS Medicine and Clinical Infectious Disease.

2001-2006

Theodore Cohen, MD, MPH, DPH / Professor, Department of Epidemiology, School of Public Health, Yale University I was Dr. Cohen's DPH advisor at the Harvard School of Public Health and his primary mentor on his NIH K08 grant. Published 36 research papers together, including one in Science, one in Nature Medicine, and one in PNAS.

2003-2005

Anson Wright, MSc / WASH Advisor, Millennium Villages Project I supervised Ms. Wright’s master’s thesis on preparedness for a Yersinia pestis bioterrorism attack.

2004-2006

Kristina Wallengren, PhD, MPH / Executive Director and Founder, THINK (Tuberculosis and HIV Investigative Network) I was Dr. Wallengren's post-doctoral advisor at Harvard School of Public Health. We published three papers together.

2004-2010

Molly Franke, ScD / Assistant Professor, Department of Global Health and Social Medicine, Harvard Medical School I was Dr. Franke's doctoral advisor at Harvard School of Public Health and continue to mentor her in her role at HMS. We have published 18 research papers together.

2005-2010

Erin Johnson, PhD / Associate Professor, Department of Biology, John Carroll University I was Dr. Johnson’s post-doctoral advisor at Harvard School of Public Health. Published two papers together in FEMS Immunology and Medical Microbiology and Infection and Immunity.

2005-2009

Hsien-Ho Lin, MD, MPH, ScD / Associate Professor in Epidemiology, Institute of Epidemiology and Preventive Medicine, National Taiwan University College of Public Health

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I was Dr. Lin's advisor at Harvard School of Public Health. Published nine research papers together, including in PLoS Medicine, the Lancet, and American Journal Respiratory Critical Care Medicine.

2005-2011

Meghan Baker, MD / Instructor, Department of Population Medicine, Harvard Medical School and Harvard Pilgrim Health Care Institute I was Dr. Baker's advisor at the Harvard School of Public Health, Boston, MA. We have published five papers together.

2006-2009

Andreas Sandgren, MSc, PhD / Deputy Head, ReAct Europe I was Dr. Sandgren’s post-doctoral research advisor at Harvard School of Public Health. We published three research papers together, including one in PLoS Medicine.

2006-2010

Christie Jeon, MSc, ScD / Assistant Professor, Cedars-Sinai Division of Hematology/Oncology and Department of Epidemiology, UCLA Fielding School of Public Health I was Dr. Jeon’s doctoral advisor at the Harvard School of Public Health. We published ten research papers together including one in PLoS Medicine.

2006-2011

Kathleen Wirth, ScD / Research Scientist, Department of Biostatistics, Harvard School of Public Health I was Dr. Wirth’s doctoral advisor at the Harvard School of Public Health. We published two papers together, including one in Epidemiology.

2006-2008

Caroline Colijn, PhD / Professor, Department of Mathematics, Simon Fraser University I was Dr. Colijn’s post-doctoral advisor at Harvard School of Public Health. Published twelve research papers together, including one in American Journal Respiratory Critical Care Medicine and one in PLoS Computational Biology.

2007-2009 Gape Machao, MSc / Monitoring and Evaluation Officer, UNICEF Botswana I supervised Mr. Machao’s master’s thesis on rapid diagnostic testing for TB in Botswana.

2008-2010

Ellen Brooks-Pollock, MSc, PhD / Lecturer, Veterinary Public Health, Bristol Veterinary School I was Dr. Pollock’s post-doctoral research advisor at Harvard School of Public Health. We published two papers together.

2008-2013

Karen Jacobson, MD / Assistant Professor of Medicine, Section of Infectious Diseases, Boston University School of Medicine I was Dr. Jacobson’s research mentor for her infectious disease post-doctoral research fellowship. We published nine papers together.

2008-2010 Tsering Pema Lama, MSc. Postdoctoral Fellow / Consultant, The George Washington University Milken Institute School of Public Health

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I supervised Ms. Lama’s master’s thesis.

2009-2015

Matthew Bonds, PhD / Assistant Professor, Department of Global Health and Social Medicine, Harvard Medical School I was Dr. Bonds’ mentor on his K award on poverty traps and currently mentor him in his role in my department. We have published five papers and two book chapters together.

2009-2012

Razvan Sultana, MD, PhD / Computational Biologist, University of Hawaii John A. Burns School of Medicine I co-supervised Dr. Sultana’s doctoral thesis in Bio-informatics at Boston University on genomic analysis of drug resistant TB. We have published three papers together.

2010-2016

Hanna Guimaraes, MA, PhD / Postdoctoral Researcher, RIVM National Institute for Public Health and the Environment I was Ms. Guimaraes’ doctoral adviser while she conducted research for her degree from Portugal. We published four papers together.

2010-2016

Maha Farhat, MD, MSc / Assistant Professor of Biomedical Informatics, Harvard Medical School I was Dr. Farhat’s postdoctoral mentor and supervised her analysis of whole genome sequence data on M. tuberculosis for the identification of novel mutations associated with drug resistance. We have published 12 papers together.

2010

Joanne Salmon, MD, MPH / Clinical Instructor, Division of Infectious Diseases, Department of Medicine, The University of British Columbia I supervised Dr. Salmon’s master’s thesis on community health workers and impact on TB treatment outcomes: a multi-country proposal.

2010-2014 Chuan-Chin Huang, MS, ScD / Instructor in Medicine, Harvard Medical School I was Dr. Huang’s doctoral adviser. We have published eight papers together.

2010-2014

Olivia Oxlade, PhD / Epidemiologist and Modeler, McGill International TB Centre I was Dr. Oxlade’s postdoctoral research supervisor in her work on modeling the determinants of TB. We published three papers together.

2010-2016

MaryCatherine Arbour, MD / Assistant Professor of Medicine, Department of Global Health and Social Medicine, Harvard Medical School I mentored this junior faculty member at the Division of Global Health Equity, Brigham and Women’s Hospital in her work on education and health outcomes in a cluster randomized trial of school-based interventions in Santiago, Chile. We published two papers together.

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2011

Devra Barter, MS / Emerging Infections Epidemiologist, Colorado Department of Public Health & Environment
I co-supervised Ms. Barter’s master’s thesis on out-of-pocket expenses during TB treatment which is published in BMC Public Health.

2011-2013

Silvan Vesenbeckh, MD / Senior Registrar, Infectious Diseases, Groote Schuur Hospital I supervised Dr. Vesenbeckh’s postdoctoral work on cholera transmission in the DRC and Haiti. We published three papers together.

2011-2015

Philips Loh, MS / Doctoral candidate, Department of Epidemiology, Harvard School of Public Health I supervised Mr. Loh’s master’s thesis and served as his doctoral adviser.

2012-2013

Alexis Krumme, MS, ScD / Research Specialist, Division of Pharmacoepidemiology and Pharmacoeconomics, Brigham and Women's Hospital I supervised Ms. Krumme’s master’s thesis. We published one paper together.

2012-2015 Xeno Acharya, MPH / Senior Consultant, Healthcare AI, PA Consulting I was Mr. Acharya’s doctoral adviser. We have published one paper.

2013-2014

Anna Odone, MD, MPH, PhD / Associate Professor of Public Health, Università VitaSalute San Raffaele
I was Ms. Odone’s postdoctoral research supervisor for her work on socioeconomic risk factors for acquired and primary MDR-TB in Lima, Peru. We published one paper together.

2013-2014

Sachin Atre, PhD / Study Coordinator, Johns Hopkins Center for Clinical Global Health Education I supervised Dr. Atre’s work on MDR-TB management and policy in India, and the effective use of information technology in TB control. We published one paper together.

2013-2015 Emilia Ling, MS / Medical Student, Stanford University I supervised Ms. Ling’s master’s thesis at HSPH. We published one paper together.

2013-2016

Assumpta Mukabutera, PhD / Instructor, University of Rwanda School of Public Health I supervised Dr. Mukabutera’s doctoral thesis on rainfall and child health outcomes. We published three papers together.

2014-2016 Rebecca Butler, MS / Biostatistician, Kaiser Permanente I supervised Ms. Butler’s master’s thesis.

2014-2016

Gustavo Velasquez, MD, MPH / Research Associate, Department of Global Health and Social Medicine, Harvard Medical School
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I supervised Dr. Velasquez’s postdoctoral work examining the relationship between phenotypic pyrazinamide resistance and multidrug-resistant tuberculosis (MDR-TB) treatment outcomes. We published four papers together.

2014-2017

Ibrahim Diakite, PhD / Associate Scientist in Modeling & Meta-Analysis, Pharmerit International I supervised Dr. Diakite’s postdoctoral project that aimed to advance the quantitative study of communicable diseases especially the Mycobacterium Tuberculosis by using a combination of different mathematical techniques such as differential equations, stochastic process, branching process, and mathematical game theory. We published two papers together.

2014-2018

Omowunmi Aibana, MD, MPH / Assistant Professor, General Internal Medicine, University of Texas McGovern Medical School I supervised Dr. Aibana’s work on Tuberculosis in Ukraine through a T32 mechanism based at Brown Medical School. We published five papers together.

2014-2019

Eric Mooring, MPhil, ScD / Epidemic Intelligence Service, Centers for Disease Control and Prevention I was Dr. Mooring’s doctoral adviser. We have published three papers together.

2014-2020

Ruoran Li, MPhil / Doctoral Student, Department of Epidemiology, Harvard T.H. Chan School of Public Health. I was Dr. Li’s doctoral adviser. We have published one paper together.

2016-2018

Silvia Chiang, MD / Assistant Professor of Pediatrics, Brown Alpert Medical School I supervised Dr. Chiang in her postdoctoral study of adolescent tuberculosis. We have published two papers together and have one under review.

2017-2018

Katrin Sadigh, MD / Fogarty Global Health Fellow, Harvard T.H. Chan School of Public Health I supervised Dr. Sadigh in her clinical research as part of the Department of Infectious Disease, Brigham and Women’s Hospital/Massachusetts General Hospital combined program.

2017-2019

Taylor Chin, BA / Master’s student, Department of Epidemiology, Harvard T.H. Chan School of Public Health I supervised Ms. Chin’s master’s thesis.

2017-2019

Tori Cowger, MPH / Doctoral Student, Department of Epidemiology, Harvard T.H. Chan School of Public Health I was Ms. Cowger’s doctoral adviser.

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2017-

Alexander Chu, MPH / Post-baccalaureate premedical candidate, Harvard Extension School.

2017-

Annelies Mesman, PhD / Postdoctoral Research fellow, Department of Global Health and Social Medicine, Harvard Medical School. I supervised Annelies Mesman in her postdoctoral study of tuberculosis. We have published two papers together.

2019

Gerson Galdos Cardenas, PhD / Postdoctoral Research fellow, Department of Global Health and Social Medicine, Harvard Medical School.

2019-

Kamela Ng, PhD / Postdoctoral Research fellow, Department of Global Health and Social Medicine, Harvard Medical School.

2019-

Qi Tan, MD, PhD / Postdoctoral Research fellow, Department of Global Health and Social Medicine, Harvard Medical School.

Presentations
Invited Presentations and Courses Local, Regional, National, and International Invited Presentations and Courses

Local Invited Presentations

No presentations below were sponsored by outside entities

2001

Styblo's Rule revisited

Freeman Symposium Research Seminar

Department of Epidemiology

Harvard School of Public Health

2002-2003

Molecular epidemiology of tuberculosis Invited Lecture Hot Topics Series Harvard School of Public Health

2003

The transmission dynamics of M. Tuberculosis: Models and Molecular Epidemiology Research Seminar Department of Epidemiology Harvard School of Public Health

2003

Inferring the evolution of M. Tuberculosis from comparative genomics Research Seminar Infectious Disease Unit Harvard Medical School

2003

The epidemiology of Severe Acute Respiratory Syndrome (SARS) Invited lecture
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2003 2003 2003 2004 2005 2006 2006 2006 2006 2006

Kennedy School of Government Harvard University
Transmission dynamics, epidemiology and SARS Research Seminar Department of Epidemiology Harvard School of Public Health
Modeling the molecular epidemiology of TB Freeman Symposium Research Seminar Department of Epidemiology Harvard School of Public Health
Molecular epidemiology and the transmission dynamics of tuberculosis Research Seminar The Broad Institute
The epidemiology of SARS Hot Topic Series Harvard School of Public Health
Epidemiology of multi-drug resistant tuberculosis Grand Rounds Massachusetts General Hospital
Iron metabolism and M. Tuberculosis Research Seminar The Broad Institute
Natural variation in M. Tuberculosis Research Seminar The Broad Institute
Avian influenza Department of Environmental Health Harvard School of Public Health
Three epidemics and how they happened Department of Epidemiology Seminar Harvard School of Public Health
Transmission dynamics of drug sensitive and resistant tuberculosis infectious disease Research Seminar Partners Infectious Disease Boston, MA
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2007 2007 2008 2008 2008
2009 2009 2009 2010 2010

Genetic heterogeneity in M. Tuberculosis Department of Genetics and Complex Diseases Harvard School of Public Health
Epidemiology of HIV and tuberculosis Department of Epidemiology Seminar Harvard School of Public Health
A multi-disciplinary approach to MDR and XDR tuberculosis Department of Epidemiology Seminar Series Harvard School of Public Health
Making multidisciplinary research work: the example of MDR tuberculosis Seminar Series Department of Social Medicine and Health Inequalities Brigham and Women’s Hospital
Conducting research in international settings Best Practices in International Scientific Collaboration (Panel discussion) 2nd annual New England Tuberculosis Retreat Harvard Initiative for Global Health Harvard Medical School
Genomic epidemiology of MDR and XDR tuberculosis The Broad Institute
A multi-disciplinary approach to XDR tuberculosis Grand Rounds Department of Medicine Brigham and Women’s Hospital
Social justice and the effort to address MDR TB Symposium on an Idea of Justice Harvard University and the China Research Council
The evolution of drug resistant tuberculosis Grand Rounds Department of Medicine Massachusetts General Hospital
Overview of Murray research team Freeman Symposium Research Seminar Department of Epidemiology Harvard School of Public Health
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2011 2011 2013 2014 2015 2015 2015 2017 2017 2017 2018

Deans’ Research Update Harvard School of Public Health
Innovation in global health Massachusetts General Hospital Department of Medicine Bicentennial Reunion Department of Medicine Massachusetts General Hospital
TB in the 21st century: the convergence of the infectious and metabolic diseases Seventh Annual New England Tuberculosis Symposium The Broad Institute
Ebola and the research equity agenda Global Health Advisory Council Harvard Medical School Boston, MA
Ebola Update Global Health Advisory Council Harvard Medical School Boston, MA
HIV and TB co-infection Harvard T.H. Chan School of Public Health Boston, MA
Burke Global Health Fellowship Symposium Harvard Global Health Institute Cambridge, MA
Host and bacterial determinants of TB infection and disease: a longitudinal cohort study Spring Seminar Center for Communicable Disease Dynamics Harvard T.H. Chan School of Public Health, Boston, MA
Host and bacterial determinants of TB infection and disease: insights from a large cohort study IDMP Seminar Broad Institute of MIT and Harvard, Cambridge, MA
Tuberculosis and the vitamin A connection Talks at 12 Harvard Medical School
How to write an NIH grant Training to Teachers Mongolia
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2020 2020 2020 2020 2020

Harvard Medical School
SARS-CoV-2: Assessing the risks Environmental Health Risk: Analysis and Applications (RISK0320) Harvard T.H. Chan School of Public Health
The epidemiology of COVID-19: Evaluation of Treatment and Response GHSM Seminar - Social Medicine: Response to COVID-19 Harvard Medical School
The Epidemiology of COVID-19 MassCPR webinar
BCG and innate immune responses Pathogenesis Working group MassCPR webinar
The transmission dynamics of COVID-19 BCMP Seminar Harvard Medical School

Regional

No presentations below were sponsored by outside entities

2001

Genetics and phenotypic variability within M. Tuberculosis

Invited lecture

Boston University

2001

Problems in the molecular epidemiology of tuberculosis Research Seminar Massachusetts State Laboratory Institute (MSLI), Boston, MA

2006

Three epidemics Kay Stratton Lecture Massachusetts Institute of Technology, Cambridge, MA

2015

Converging epidemics: tuberculosis and diabetes Oxford Immunotec Marlborough, MA

National

No presentations below were sponsored by outside entities

2004

Transmission of TB in the community

Infectious Disease Society of America, Boston, MA

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2006 2006 2008 2008 2008 2008 2008 2009 2009 2009 2009

Modeling MDR tuberculosis National Partners Meeting on MDR Tuberculosis, Atlanta, GA
Transmission dynamics of Drug Resistant tuberculosis Interscience Conference on Antimicrobial Agents and Chemotherapy, San Francisco, CA
Host iron metabolism genes Workshop on Biofilms, Iron and Drug Refractory TB Colorado State University, Fort Collins, CO
The impact of strains diversity and mechanisms of strains competition on the Potential Performance of New TB Vaccines Microbial Diseases Lecture Series Yale School of Public Health, Hartford, CT
The role of mathematical modeling in evaluating interventions to control epidemics: the example of tuberculosis Howard Hughes Medical Institute California Institute of Technology, Pasadena, CA
An interdisciplinary approach to extensively drug resistant tuberculosis Howard Hughes Medical Institute California Institute of Technology, Pasadena, CA
Number of MDR-TB and XDR-TB patients receiving treatment today: Successes/Failures/Consequences Forum on Drug Discovery, Development and Translation Institute of Medicine of the National Academies, Washington, DC
The evolution of XDR-TB in M. tuberculosis Seminar Series Biology Department Williams College, Williamstown, MA
The evolution of XDR-TB in M. tuberculosis: a multidisciplinary approach Grand Rounds Presentation Division of Infectious Diseases Hennepin County Medical Center, Minneapolis, MN
Mathematical modeling Infectious Diseases Clinical Cases Conference Division of Infectious Diseases Hennepin County Medical Center, Minneapolis, MN
The evolution of XDR-TB: a multidisciplinary approach 2009 National TB Conference-TB Elimination-“It Takes a Village” Centers for Disease Control and Prevention, Atlanta, GA
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2009 2010 2010 2010 2011 2011 2012 2012 2013

The Gates Project overview Mycobacteriology Laboratory Branch (MLB) Division of Tuberculosis Elimination Seminar Centers for Disease Control and Prevention, Atlanta, GA
Social, economic and biological determinants of tuberculosis Taskforce for Disease Eradication Carter Center Atlanta, Georgia
Estimating the impact of social and biological determinants on TB and modeling their modification Texas School of Public Health Brownsville, Texas
The evolution of XDR tuberculosis Mary Hitchcock Hospital Hanover, New Hampshire
Molecular methods to detect drug resistance in M. tuberculosis Workshop on TB and HIV Diagnostics in Adult and Pediatric Populations National Institutes of Health Washington, DC
Understanding the transmission dynamics of drug resistant tuberculosis: a multidisciplinary approach Annual Biomedical Research Conference for Minority Students St. Louis, Missouri
Evolution of drug resistance World TB Day Symposium Boston University Boston, Massachusetts
High throughput sequencing of drug resistance targets for Mycobacterium tuberculosis National Institute of Allergy and Infectious Diseases Sponsored meeting Washington, DC
Genetic determinants of drug resistance in Mtb World TB Day Symposium Weill Cornell Medical College New York City, New York
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2015 2016 2017 2017 2018 2019 2019

Tuberculosis and diabetes The Comstock Lecture Johns Hopkins School of Public Health Baltimore, Maryland
Tuberculosis and diabetes 20th Annual Conference of Union-North America Region/National TB Controllers Association Joint Meeting Denver, Colorado
Risk factors for TB disease progression: evidence from a cohort study in Peru 9th Annual CEND (Center for Emerging and Neglected Diseases) Symposium: Deconstructing TB: Insights from Fundamental Research University of California, Berkeley, California
Public health and the environment: interdisciplinary research and emerging infectious disease Ecology & Evolution of Infectious Diseases UC Santa Barbara, California
Women in science 2018 Women in Science Symposium Colorado State University Fort Collins, Colorado
Who gets TB infection and disease in Lima, Peru Epidemiology Grand Rounds Columbia University Mailman School of Public Health New York, New York
Who gets TB infection and disease in Lima, Peru UPGG Tuesday Seminar Series Duke University Durham, North Carolina

International No presentations below were sponsored by outside entities

2001

Determinants of cluster distribution in M. tuberculosis Research Seminar University of Warwick, Coventry, United Kingdom
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2002 2002 2003 2004 2005 2005 2006 2007 2007 2007 2008

Pathogenesis of tuberculosis Invited Lecture Peruvian Thoracic Society, Lima, Peru
Problems in the molecular epidemiology of tuberculosis Research Seminar Karolinski Institutet, Stockholm, Sweden
The fitness of MDR-TB: what do we know Invited Lecture World Health Organization, Tallin, Estonia
Molecular epidemiology of TB in Sverdlosk, Russia Invited Lecture International Union Against Tuberculosis and Lung Disease (IUTLD) Meeting Moscow, Russia
The fitness of MDR-TB strains Invited Lecture Desmond Tutu Center for Tuberculosis Research University of Stellenbosch, Matieland, South Africa
The current and future status of Multi-Drug Resistant TB Invited Lecture Novartis Symposium on TB Drug Development, Bagamoyo, Tanzania
XDR-TB surveillance Task Force on XDR-TB World Health Organization, Geneva, Switzerland
Mathematical models of population effects of potential TB vaccines Keystone Symposium of Challenges of Global Vaccine Development Cape Town, South Africa
Modeling vaccine effects Modeling Symposium at the 38th Union World Conference on Lung Health Cape Town, South Africa
Genomic epidemiology of infectious diseases: a new science US-Japan Meeting Hainan, China
The molecular evolution of extensively drug resistant tuberculosis Keystone Symposium of Pathogenesis and Control of Emerging Infections and Drug-Resistant Organisms
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2008 2009 2009 2009 2009 2009 2009 2010 2010 2010

Bangkok, Thailand
TB Drug Resistance Mutation Database 39th Union World Conference 2008 International Union of TB and Lung Disease Paris, France
The evolution of multi-drug resistance in M. tuberculosis Engineering and Physical Sciences Research Council Workshop on the Evolution of Antibiotic Resistance Imperial College, London, England
The evolution of multi-drug resistance in M. tuberculosis School of Biosciences Seminar Series University of Birmingham, Birmingham, England
Diagnosis of drug resistant TB Fondation Mérieux International Scientific Conference on Latest Approaches to HIV Infection Management: A Focus on HIV, TB and HIV/Hepatitis Co-Infection New Delhi, India
Tuberculosis and diabetes: interactions between two epidemics TB/DM Expert Meeting International Union of TB and Lung Disease Paris, France
Differences between epidemiology of TB in rich and poor countries Union World Conference of Lung Health Cancun, Mexico
Modeling the potential impact of changing risk factors and social determinants Union World Conference of Lung Health Cancun, Mexico
The evolution of drug resistance in TB Ecole Polytechnique Federale de Lausanne Lausanne, Switzerland
Identification of drug resistance mutations in M. tuberculosis Fondation Mérieux Annecy, France
Guidelines for management of tuberculosis and diabetes World Health Organization Geneva, Switzerland
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2010 2010 2011 2011
2012 2012 2012 2012 2012 2012 2013

Data for developing diagnostics for MDR TB Christian Medical College Vellore, India
Beyond labs and pills for improved tuberculosis control: what role for TB programmes? 41st Union World Conference on Lung Health Berlin, Germany
Iron transport polymorphisms and TB susceptibility Ecole Polytechnique Federale de Lausanne Lausanne, Switzerland
Evaluating health interventions using DHS oversamples Doris Duke Charitable Foundation Population Health Implementation Training Partnership Grantee Meeting Ifakara, Tanzania
Overview: Transmission dynamics and epidemiology of drug resistant TB Lima, Peru
The transmission dynamics of drug resistant TB Harvard China Fund Shanghai, China
Understanding the epidemic dynamics of drug resistant TB Keystone Symposia Conference – Drug Resistance and Persistence in Tuberculosis Kampala, Uganda
The social, environmental and biologic determinants of tuberculosis TB Day in Braga: From the hospital to the bench and back. Braga, Portugal
Studying the link between nutrition and TB Risk: problems and strategies International Conference of the Union for TB and Lung Disease Kuala Lumpur, Malaysia
TB and diabetes: what we know, what we don’t know International Conference of the Union for TB and Lung Disease Kuala Lumpur, Malaysia
Genetic diversity of DR TB: implication for future diagnostics Institute of Medicine and Chinese Academy of Sciences Workshop
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2013 2014 2014 2015 2015 2015 2015 2016 2016

The Global Crisis of Drug-Resistant Tuberculosis and the Leadership of the BRICS Countries: Challenges and Opportunities Beijing, China
Evolution of drug-resistance in TB genomes International Conference of the Union for TB and Lung Disease Paris, France
The genetics and pathogenesis of MDR and XDR TB drug resistance Conference on Retroviruses and Opportunistic Infections (CROI) Boston, MA
Genetic basis for transmission of MDR-TB 9th International Conference on the Pathogenesis of Mycobacterial Infections Stockholm, Sweden
Issues in the management and prevention of drug resistant and sensitive TB Invited Lecture Bogomolets National Medical University Kiev, Ukraine
TB and diabetes mellitus outcomes 19th Annual Conference of the Union-North America Region Vancouver, BC, Canada
The transmissibility of drug resistant TB RePort Consortium Meeting Boston University Boston, Massachusetts
The TB drug resistance database 46th Union World Conference on Lung Health Cape Town, South Africa
Diabetes and environmental co-morbidities with TB Keystone Symposia Conference - Tuberculosis Co-Morbidities and Immunopathogenesis Keystone, Colorado
Enabling next generation whole genome sequencing readouts directly from sputum samples and in the clinic: hype or hope? 47th Union World Conference on Lung Health Liverpool, United Kingdom
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2017 2017
2017 2017 2017 2018 2018 2019 2019
2020 2020

Infectiousness and transmission of tuberculosis American Thoracic Society 2017 International Meeting Washington, DC
Recent insights in the meaning of latency in tuberculosis 30th Annual Doctor Dorothy Wiselberg Seminar McGill University Montreal, QC, Canada
Next generation whole genome sequencing for tuberculosis: ready for clinical practice? 48th Union World Conference on Lung Health Guadalajara, Mexico
Estimating the adolescent tuberculosis burden in the 30 high-TB burden countries 48th Union World Conference on Lung Health Guadalajara, Mexico
Insights into TB from a longitudinal cohort study in Lima, Peru National TB program Lima, Peru
Insights into TB from a longitudinal cohort study in Lima, Peru Otago University Dunedin, New Zealand
Grant Writing Mongolian National University of Medical Sciences Ulaanbaatar, Mongolia
Bacterial determinants of TB progression 50th Union World Conference on Lung Health Hyderabad, India
Genetic variations of mycobacterium tuberculosis that are associated with tuberculosis transmission 50th Union World Conference on Lung Health Hyderabad, India
The COVID-19 Research Agenda Partners in Health
SARS-CoV-2 Partners in Health
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Report of Clinical Activities and Innovations Current Licensure and Certification

1996

Licensed in Medicine in Massachusetts

1996

Board Certified in Internal Medicine

1997

Board Certified in Infectious Disease

Practice Activities

1998 – 2007

Attending Physician

Infectious Disease Consult Services, MGH, Boston, MA

3-5 new consults, 2030 follow-ups per day 3-6 weeks per year

The unit provides consults on infectious disease issues to all medical, surgical and other specialty wards. I saw patients referred to the specialty unit in conjunction with a team that includes an

infectious disease fellow and rotating medical students and residents. In addition to this bedside clinical teaching, I also participated in weekly clinical conferences and seminars that are

designed to maximize teaching.

Report of Scholarship
Peer reviewed publications in print or other media
Research investigations
1. Murray MJ, Murray NJ, Murray AB, Murray MB. Refeeding-malaria and hyperferraemia. Lancet 1975;1:653-4.
2. Murray MJ, Murray AB, Murray MB, Murray CJ. Somali food shelters in the Ogaden famine and their impact on health. Lancet 1976 Jun 12;1:1283-5.
3. Murray MJ, Murray AB, Murray MB, Murray CJ. Parotid enlargement, forehead edema, and suppression of malaria as nutritional consequences of ascariasis. Am J Clin Nutr. 1977 Dec;30(12):2117-21.
4. Murray MJ, Murray AB, Murray NJ, Murray MB. Diet and cerebral malaria: the effect of famine and refeeding. Am J Clin Nutr. 1978 Jan;31(1):57-61.
5. Murray MJ, Murray AB, Murray NJ, Murray MB. Serum cholesterol, triglycerides and heart disease of nomadic and sedentary tribesmen consuming isoenergetic diets of high and low fat content. Br J Nutr. 1978 Jan;39(1):159-63.
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6. Murray MJ, Murray AB, Murray NJ, Murray MB. The effect of iron status of Nigerien mothers on that of their infants at birth and 6 months, and on the concentration of Fe in breast milk. Br J Nutr. 1978 May;39(3):627-30.
7. Murray MJ, Murray AB, Murray MB, Murray CJ. The adverse effect of iron repletion on the course of certain infections. Br Med J 1978 Oct 21;2:1113-5.
8. Murray MJ, Murray AB, Murray NJ, Murray MB, Murray CJ. Molluscum contagiosum and herpes simplex in Maasai pastoralists; refeeding activation of virus infection following famine? Trans R Soc Trop Med Hyg. 1980;74(3):371-4.
9. Murray JM, Murray AB, Murray MB, Murray CJ. Rarity of planar warts in Cushite nomads: antiviral effect of milk? Lancet. 1980 Jul 19;2(8186):143-4.
10. Murray MJ, Murray AB, Murray NJ, Murray MB. Infections during severe primary undernutrition and subsequent refeeding: paradoxical findings. Aust N Z J Med. 1995 Oct;25(5):507-11.
11. Murray M, Rasmussen Z. Measles Outbreak in a Northern Pakistani village: epidemiology and vaccine effectiveness. Am J Epidemiology 2000;1:811-9.
12. Piatek A, Telenti A, Murray M, El-Hajj H, Jacobs WR Jr, Kramer FR, Alland D. Genotypic analysis of M. tuberculosis in two distinct populations using molecular beacons: implications for rapid susceptibility testing. Antimicrob Agents Chemother 2000;1:103-10.
13. Murray MB, Determinants of cluster distribution in the molecular epidemiology of tuberculosis. Proc Natl Acad Sci U S A 2002 Feb; 99:1538-43.
14. Murray MB, Alland D. Methodological problems in the molecular epidemiology of tuberculosis. Am. J. Epidemiology 2002;155: 565-71.
15. Murray MB. Sampling bias in the molecular epidemiology of tuberculosis. Emerg Infect Dis 2002 Apr; 4:363-9.
16. Hughes A, Friedman R, Murray M. Genomewide pattern of synonymous nucleotide substitution in two complete genomes of Mycobacterium tuberculosis. Emerg Infect Dis 2002 Nov;8:1342-6.
17. Murray MB. Molecular epidemiology and the dynamics of tuberculosis transmission among foreign-born people. CMAJ 2002;167:355-6.
18. Lipsitch M, Murray MB. Multiple equilibria: Tuberculosis transmission require unrealistic assumptions. Theor Popul Biol 2003 Mar; 63:169-7.
19. Alland D, Whittam T, Murray M, Cave DM, Hazbon M, Dix K, Kokoris M, Duesterhoeft A, Eisen JA, Fraser CM, Fleischmann RD. Modeling bacterial evolution with comparativegenome based marker systems. Application to M. tuberculosis evolution and pathogenesis. J Bacteriol 2003;185:3392-9.
20. Lipsitch M, Cohen T, Cooper B, Robins JM, Ma S, James L, Gopalakrishna G, Chew SK, Tan CC, Fisman D, Samore M, Murray M. Transmission dynamics and control of severe acute respiratory syndrome. Science 2003; 300:1966-70.
21. Kudva IT, Griffin RW, Murray M, John M, Perna NT, Barrett TJ, and Calderwood SB. Insertions, deletions and single nucleotide polymorphisms at rare restriction enzyme sites enhance discriminatory power of polymorphic amplified typing sequences, a novel strain typing system for escherichia coli O157:H7. J Clin Microbiol 2004 Jun;42:2388-97.
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22. Cohen T**, Becerra MC, Murray MB. Isoniazid resistance and the future of drug-resistant tuberculosis. Microb Drug Resist 2004;10:280-5.
23. Cohen T**, Murray M. Modeling epidemics of multidrug-resistant M. tuberculosis of heterogeneous fitness. Nat Med 2004 Oct;10:1117-21.
24. Becerra MC, Pachao-Torreblanca IF, Bayona J, Celi R, Shin S, Kim JY, Farmer P, Murray M. Expanding tuberculosis case detection by screening household contacts. Public Health Rep 2005;120:271-7.
25. Cohen T**, Murray M. Incident tuberculosis among recent US immigrants and exogenous reinfection. Emerg Infect Dis 2005;11:725-8.
26. Korves C**, Goldie S, Murray M. Cost-effectiveness of alternative blood screening strategies for West Nile Virus in the United States. PLoS Med 2006; 3:0211-21.
27. Louw GE, Warren RM, Donald PR, Murray MB, Bosman M, Van Helden PD, Young D, Victor TC. Frequency and implications of pyrazinamide resistance in managing previously treated tuberculosis patients. Int J Tuberc Lung Dis 2006 Jul;10:802-7.
28. Cohen T**, Lipsitch M, Walensky R, Murray M. Beneficial and perverse effects of isoniazid preventive therapy for latent tuberculosis infection in HIV-TB co-infected populations. Proc Natl Acad Sci U S A 2006 May 2;103:7042-7.
29. Resch S, Salomon J, Murray M, Weinstein M. Cost-effectiveness of treating multidrugresistant tuberculosis. PLoS Med 2006 Jul;3:1302-9.
30. Mathew TA, Shin SS, Ovsynakova TN, Gelmanova I, Balbuena D, Atwood S, Peremetin GG, Strelis AK, Murray M. Causes of death during TB treatment in Tomsk Oblast, Russia. Int J Tuberc Lung Dis 2006; 10:857-63.
31. Korves C**, Goldie S, Murray M. Blood screening for the West Nile virus: the costeffectiveness of a real-time trigger-based strategy. Clin Infect Dis 2006 Aug 15;43:490-3.
32. Hazbón MH, Brimacombe M, Bobadilla del Valle M, Cavatore M, Guerrer MI, Varma-Basil M, Billman-Jacobe H, Lavender B, Fyfe J, García-García L, León C, Bose M, Chaves G, Murray M, Eisenach KD, Sifuentes-Osornio J, Cave MD, Ponce de León A, Alland D. Population genetics study of isoniazid resistance mutations and evolution of multidrug-resistant Mycobacterium tuberculosis. Antimicrob Agents Chemother 2006;50:2640-9.
33. Johnson R, Warren R, Strauss OJ, Jordaan AM, Falmer AA, Beyers N, Schaaf HS, Cloete K, Murray M, van Helden PD, Victor TC. An outbreak of drug resistant tuberculosis caused by a Beijing strain in the Western Cape, South Africa. Int J Tuberc Lung Dis 2006;10:1412-4.
34. Lipsitch M, Cohen T, Murray M, Levin BR. Antiviral resistance and the control of pandemic influenza. PLoS Med 2007 Jan;4:0111-21.
35. Lin HH**, Ezzati M, Murray M. Tobacco smoke, indoor air pollution and tuberculosis – A systematic review and meta-analysis. PLoS Med 2007: 0173-89.
36. Gelmanova I, Keshavjee S, Golubchikova VT, Berezina VI, Sterlis AK, Yanova GV, Atwood S, Murray M. Barriers to successful tuberculosis treatment in Tomsk, Russia: Non-adherence, default and the acquisition of multi-drug resistance. Bull WHO 2007;85:703-11.
37. Victor TC, Streicher EM, Kewley C, Jordaan AM, van der Spuy GD, Bosman M, Louw H, Murray M, Young D, van Helden PD, Warren RM. Spread of an emerging Mycobacterium tuberculosis drug-resistant strain in the Western Cape of South Africa. Int J Tuberc Lung Dis 2007;11:195-201.
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38. Colijn C**, Cohen T, Murray M. Emergent heterogeneity in tuberculosis epidemics. J Theor Biol 2007 Aug 21;247:765-74.
39. Cohen T**, Colijn C, Wright A, Zignol M, Pym A, Murray M. Challenges in estimating the total burden of drug resistant tuberculosis. Am J Respir Crit Care Med 2008 Jun 15; 177:1302-6.
40. Cohen T**, Colijn C, Finklea B, Murray M. Exogenous re-infection and the dynamics of tuberculosis epidemics: local effects in a network model of transmission. J R Soc Interface 2007 Jun 22;4:523-31.
41. Franke MF**, Appleton SC, Bayona J, Arteaga F, Palacios E, Llaro K, Shin SS, Becerra MC, Murray MB, Mitnick CD. Risk factors and mortality associated with default from multidrugresistant tuberculosis treatment. Clin Infect Dis 2008 June 15;46:1844-51.
42. Cohen T**, Colijn C, Finklea B, Wright A, Zignol M, Pym A, Murray M. Are survey based estimates of the burden of drug resistant TB too low?: Insight from a simulation study. PLoS One 2008;3:e2363.
43. Jeon CY**, Murray M. Diabetes mellitus increases the risk of active tuberculosis: A systematic review of 13 observational studies. PLoS Med 2008; 5:e152.
44. Cohen T**, Colijn C, Murray M. Modeling the effects of strain diversity and mechanisms of strain competition on the potential performance of new tuberculosis vaccines. Proc Natl Acad Sci U S A. 2008 Oct 21;105(42):16302-7.
45. Lin HH**, Murray M, Cohen T, Colijn C, Ezzati M. Integrated analysis of respiratory diseases and risk factors in China: The effects of smoking and solid fuel use on COPD, lung cancer, and tuberculosis. Lancet 2008; 372:1473-83.
46. Cohen T**, Colijn C, Murray M. Latent coinfection and maintenance of strain diversity. Bull Math Biol 2009;71:247-63.
47. Sandgren A**, Strong M, Muthukrishnan P, Weiner BK, Church GM, MB Murray. Tuberculosis drug resistance mutation database. PLoS Med 2009;6:e2.
48. Uys PW, Warren R, van Helden PD, Murray M, Victor TC. Potential of rapid diagnosis for controlling drug-susceptible and drug-resistant tuberculosis in communities where Mycobacterium tuberculosis infections are highly prevalent. J Clin Microbiol 2009;47:148490.
49. Lin HH**, Ezzati M, Chang HY, Murray M. Association between tobacco smoking and active tuberculosis in Taiwan: prospective cohort study. Am J Respir Crit Care Med 2009 Sep 1;180(5):475-80.
50. Colijn C**, Brandes A, Zucker J, Lun DS, Weiner B, Farhat MR, Cheng TY, Moody DB, Murray M, Galagan JE. Interpreting expression data with metabolic flux models: predicting Mycobacterium tuberculosis mycolic acid production. PLoS Comput Biol. 2009;5(8):e1000489.
51. Brooks-Pollock E**, Cohen T, Murray M. The impact of realistic age structure in simple models of tuberculosis transmission. PLoS One. 2010 Jan 7;5(1):e8479.
52. Johnson EE**, Srikanth C, Sandgren A, Harrington L, Trebicka E, Wang L, Borregaard N, Murray M, Cherayil B. Siderocalin inhibits the intracellular replication of Mycobacterium tuberculosis in macrophages. FEMS Immunol Med Microbiol. 2010 Feb;58(1):138-45.
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53. Harries AD, Murray MB, Jeon CY, Ottmani S, Lonnroth K, Barreto, ML, Billo N, Brostron R, Bygbjerg IC, Fisher-Hock S, Mori T, Ramaiya K, Roglic G, Stransgaard H, Unwin N, Viswanathan V, Whiting D, Kapur A. Defining the research agenda to reduce the joint burden of disease from Diabetes Mellitus and Tuberculosis. Trop Med Int Health. 2010;15(6):659-63.
54. Calver AD, Falmer AA, Murray M, Strauss OJ, Streicher EM, Hanekom M, Liversage M, Masibi M, van Helden PD, Warren RM, Victor TC. Emergence of increased resistance and extensively drug-resistant tuberculosis despite treatment adherence, South Africa. Emerg Infect Dis. 2010 Feb;16(2):264-71.
55. Cohen T**, Murray M, Wallengren K, Samuel L, Wilson D. The prevalence of drug sensitive and drug resistant tuberculosis among patients dying in hospital in KwaZulu-Natal, South Africa: a postmortem study. PLoS Med. 2010;7(6):e1000296.
56. Jacobson KR**, Tierney DB, Jeon CY, Mitnick CD, Murray M. Treatment outcomes among patients with extensively drug-resistant tuberculosis: systematic review and meta-analysis. Clin Infect Dis. 2010 Jul 1;51(1):6-14.
57. Becerra MC, Appleton SC, Franke MF, Chalco K, Bayona J, Murray M, Mitnick CD. Recurrence after treatment for pulmonary multidrug-resistant tuberculosis. Clin Infect Dis. 2010 Sep 15;51(6):709-11.
58. Wirth KE**, Tchetgen Tchetgen EJ, Murray M. Adjustment for missing data in complex surveys using doubly robust estimation: Application to commercial sexual contact among Indian men. Epidemiology. 2010 Nov;21(6):863-71.
59. Jeon CY**, Harries AD, Baker MA, Hart JA, Gooneskera S, Murray MB. Bi-directional screening for tuberculosis and diabetes: a systematic review. Trop Med Int Health. 2010 Nov;15(11):1300-14.
60. Ottmani S, Murray MB, Jeon CY**, Baker MA**, Kapur A, Lonnroth K, Harries AD. Consultation: Meeting on Tuberculosis and Diabetes Mellitus: Meeting summary and recommendations. Int J Tuberc Lung Dis. 2010 Dec;14(12):1513-7.
61. Johnson EE**, Sandgren A, Cherayil BJ, Murray M, Wessling-Resnick M. The role of ferroportin in macrophage-mediated immunity. Infect Immun. 2010 Dec;78(12):5099-106.
62. Jeon CY**, Calver AD, Victor TC, Warren RM, Shin SS, Murray MB. Use of fluoroquinolone antibiotics leads to tuberculosis treatment delay in a South African gold mining community. Int J Tuberc Lung Dis. 2011 Jan;15(1):77-83.
63. Cohen T**, Wilson D, Wallengren K, Samuel EY, Murray M. Mixed strain M. tuberculosis infections among patients dying in hospital in KwaZulu-Natal, South Africa. J Clin Microbiol. 2011;49(1):385-8.
64. Becerra MC, Appleton SC, Franke MF, Chalco F, Arteaga F, Bayona J, Murray M, Atwood SS, Mitnick CD. Tuberculosis burden in households of patients with multi-drug resistant tuberculosis and extensively drug resistant tuberculosis. Lancet. 2011 Jan 8;377(9760):14752.
65. Colijn C**, Cohen T, Ganesh A, Murray M. Spontaneous emergence of multiple drug resistance in TB before and during therapy. PLoS One. 2011 Mar 30;6(3):e18327.
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66. Goldhaber-Fiebert JD, Jeon CY, Cohen T, Murray MB. Diabetes mellitus and tuberculosis in countries with high tuberculosis burdens: individual risks and social determinants. Int J Epidemiol. 2011 Apr;40(2):417-28.
67. Franke MF**, Robins JM, Mugabo J, Kaigamba F, Cain LE, Fleming JG, Murray M. Effectiveness of early Antiretroviral Therapy initiation to improve survival among HIVinfected adults with tuberculosis: a retrospective study. PLoS Med. 2011 May;8(5):e1001029.
68. Murray M, Oxlade O, Lin HH. Modeling social, environmental, and biological determinants of tuberculosis. Int J Tuberc Lung Dis. 2011 Jun;15 S 2:64-70.
69. Brooks-Pollock E**, Becerra M, Goldstein E, Cohen T, Murray M. Epidemiological inference from the distribution of tuberculosis cases in households in Lima, Peru. J Infect Dis. 2011 Jun 1;203(11):1582-9.
70. Cohen T**, Murray M, Abubakaar I, Zhang A, Sloutsky A, Arteaga F, Chalco K, Franke F, Becerra MC. Multiple introductions of multidrug resistant tuberculosis into households. Emerg Infect Dis. 2011 Jun;17(6):969-75.
71. Baker MA**, Harries A, Lonnroth K, Murray M. The impact of diabetes on tuberculosis treatment outcome: A systematic review. BMC Med. 2011 Jul 1;9(1):81.
72. Louw GE, Warren RM, Gey van Pittius NC, Leon R, Jimenez A, Pando RH, McEvoy CR, Grobbelaar M, Murray M, van Helden PD, Victor TC. Rifampicin Reduces Susceptibility to Ofloxacin in Rifampicin Resistant Mycobacterium tuberculosis through Efflux. Am J Respir Crit Care Med. 2011 Jul 15;184(2):269-76.
73. Lin H**, Langley I, Mwenda R, Doulla B, Egwaga S, Millington KA, Mann GH, Murray M, Squire SB, Cohen T. A modelling framework to support the selection and implementation of new tuberculosis diagnostic tools. Int J Tuberc Lung Dis. 2011 Aug;15(8):996-1004.
74. Jacobson KR**, Theron D, Victor TC, Streicher EM, Warren R, Murray M. Treatment outcomes of Isoniazid-Resistant Tuberculosis patients, Western Cape Province, South Africa. Clin Infect Dis. 2011 Aug;53(4):369-72.
75. Izu A, Mitnick C, Cohen T, Murray M, DeGruttola V. Bayesian methods of identifying and comparing branching tree structures: An application to development of resistant TB strains. Stat Med. 2011 Sep 30;30(22):2708-20.
76. Franke MF**, Murray MB, Muñoz M, Hernández-Díaz S, Sebastián JL, Atwood S, Caldas A, Bayona J, Shin S. Food insufficiency is a risk factor for suboptimal Antiretroviral Therapy adherence among HIV-Infected adults in urban Peru. AIDS Behav. 2011 Oct;15(7):1483-9.
77. Harries AD, Lin Y, Satyanarayana S, Lönnroth K, Li L, Wilson N, Chauhan LS, Zachariah R, Baker MA, Jeon CY**, Murray MB, Maher D, Bygbjerg IC, Enarson DA, Billo NE, Kapur A. The looming epidemic of diabetes-associated tuberculosis - learning lessons from HIVassociated tuberculosis. Int J Tuberc Lung Dis. 2011 Nov;15(11):1436-44.
78. Jeon CY**, Kang H, Kim M, Murray MB, Kim H, Cho EH, Park YK. Clustering of Mycobacterium tuberculosis strains from foreign-born patients in Korea. J Med Microbiol. 2011 Dec;60(Pt 12):1835-40.
79. Layre E, Sweet L, Hong S, Madigan CA, Desjardins D, Young DC, Cheng TY, Annand JW, Kim K, Shamputa IC, McConnell MJ, Debono CA, Behar SM, Minnaard, AJ, Murray M, Barry CE 3rd,
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Matsunaga I, Moody BD. A comparative lipidomics platform for chemotaxonomic analysis of Mycobacterium tuberculosis. Chem Biol. 2011 Dec 23;18(12):1537-49. 80. Weiner B, Gomez J, Victor TC, Warren RB, Sloustky A, Plikyatis BB, Posey J, van Helden P, van Pittius, NG, Koerhsen M, Sisk P, Stolte C, While J, Gagneux S, Birren B, Hung D, Murray M, Galagan J. Independent Large Scale Duplications in Multiple M. tuberculosis Lineages Overlapping the Same Genomic Region. PLoS One. 2012;7(2):e26038. 81. Rich M, Miller AC, Niyigena, P, Franke M, Niyonzima JB, Socci A, Drobac P, Hakizamungu, Mayfield A, Ruhayisah R, Epino H, Stulac S, Cancedda C, Karamaga A, Niyonzima S, Yarbrough C Fleming J, Amoroso C, Mukherjee J, Murray M, Farmer P, Binagwaho A. Excellent Clinical Outcomes and High Retention in Care Among Adults in a Communitybased HIV Treatment Program in Rural Rwanda. J Acquir Immune Defic Syndr. 2012 Mar 1;59(3):e35-42. 82. Baker M**, Lin HH, Chang HY, Murray M. The risk of tuberculosis disease among people with diabetes, a prospective cohort study. Clin Infect Dis. 2012 Mar;54(6):818-25. 83. Baker MA**, Wilson D, Wallengren K, Sandgren A, Iartchouk O, Broodie N, Goonesekera S, Sabeti P, Murray M. Polymorphisms in the gene encoding the iron transport protein ferroportin 1 influence susceptibility to tuberculosis. J Infect Dis. 2012 Apr;205(7):1043-7. 84. Bompangue D, Vesenbeckh SM, Giraudoux P, Castro M, Muyembe Tamfun J, Kebela Ilunga B, Murray M. Cholera ante portas – The re-emergence of cholera in Kinshasa after a tenyear hiatus. Version 2. PLoS Curr. 2012 Feb 17 [revised 2012 Mar 12];4:RRN1310. 85. Rinaldo A, Bertuzzo E, Mari L, Righetto L, Blokesch M, Gatto M, Casagrandi R, Murray M, Vesenbeckh S, Rodriguez-Iturbe I. Reassessment of the 2010-2011 Haiti cholera outbreak and multi-season projections. Proc Natl Acad Sci U S A. 2012 Apr 24;109(17):6602-7. 86. Lu C**, Chin B, Lewandowski JL, Basinga P, Hirschhorn LR, Hill K, Murray M, Binagwaho A. Towards universal health coverage: an evaluation of Rwanda Mutuelles in its first eight years. PLoS One. 2012;7(6):e39282. 87. Sergeev R, Colijn C, Murray M, Cohen T. Modeling the dynamic relationship between HIV and the risk of drug-resistant tuberculosis. Sci Transl Med. 2012 May 23;4(135):135ra67. 88. Jeon CY, Murray MB, Baker MA. Managing tuberculosis in patients with diabetes mellitus: why we care and what we know. Expert Rev Anti Infect Ther. 2012 Aug;10(8):8638. 89. Arbour M**, Murray KA, Atwood SS, Murray M, Angel Cordero Vega M. Choosing the Best Child Assessment Instrument for a Specific Context: A Methodology for Engaging Local Experts Applied in Chile. J Dev Behav Pediatr. 2012 Oct;33(8):666-675. 90. Lin HH**, Dowdy D, Dye C, Murray M, Cohen T. The impact of new tuberculosis diagnostics on transmission: why context matters. Bull World Health Organ. 2012 Oct 1;90(10):739747A. 91. Oxlade O**, Murray M. Tuberculosis and Poverty: Why Are the Poor at Greater Risk in India? PLoS One 2012; 7(11): e47533. 92. Kudva I. Griffin RW, Murray M, John M, Hovda CJ, Calderwood SB. Polymorphic Amplified Typing Sequences and Pulsed-Field Gel Electrophoresis Yield Comparable Results in the Strain Typing of a Diverse Set of Bovine Escherichia coli O157:H7 Isolates. Int J Microbiol. 2012;2012:140105.
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93. Menzies NA, Cohen T, Lin H-H, Murray M, Salomon JA. Population Health Impact and CostEffectiveness of Tuberculosis Diagnosis with Xpert MTB/RIF: A Dynamic Simulation and Economic Evaluation. PLoS Med 2012; 9(11): e1001347.
94. Fraser HS, Thomas D, Tomaylla J, Garcia N, Lecca L, Murray M, Becerra MC. Adaptation of a web-based, open source electronic medical record system platform to support a large study of tuberculosis epidemiology. BMC Med Inform Decis Mak. 2012 Nov 7;12:125.
95. Barter DM**, Agboola SO, Murray MB, Bärnighausen T. Tuberculosis and poverty: the contribution of patient costs in sub-Saharan Africa—a systematic review. BMC Public Health. 2012 Nov 14; 12(1):980.
96. Jacobson KR**, Theron D, Kendall EA, Franke MF, Barnard M, van Helden PD, Victor TC, Streicher EM, Murray MB, Warren RM. Implementation of GenoType MTBDRplus Reduces Time to Multidrug-Resistant Tuberculosis Therapy Initiation in South Africa. Clin Infect Dis. 2013 Feb;56(4):503-8.
97. Wirth KE**, Tchetgen Tchetgen EJ, Silverman JG, Murray MB. How does sex trafficking increase the risk of HIV Infection? An observational study from Southern India. Am J Epidemiol. 2013 Feb 1;177(3):232-41.
98. Franke MF**, Appleton SC, Mitnick CD, Furin JJ, Bayona J, Chalco K, Shin SS, Murray MB, Becerra MC. Aggressive Regimens for Multidrug-Resistant Tuberculosis Reduce Recurrence. Clin Infect Dis. 2013 Mar;56(6):770-6.
99. Kato-Maeda M, Ho C, Passarelli B, Banaei N, Grinsdale J, Flores L, Anderson J, Murray M, Rose G, Kawamura LM, Pourmand N, Tariq MA, Gagneux S, Hopewell PC. Use of Whole Genome Sequencing to Determine the Microevolution of Mycobacterium tuberculosis during an Outbreak. PLoS One. 2013 Mar 15;8(3): e58235.
100.Reeves AZ, Campbell PJ, Sultana R, Malik S, Murray M, Plikaytis BB, Shinnick TM, Posey JE. Aminoglycoside Cross-Resistance in Mycobacterium tuberculosis Due to Mutations in the 5' Untranslated Region of whiB7. Antimicrob Agents Chemother. 2013 Apr;57(4):1857-65.
101.Drobac PC, Basinga P, Condo J, Farmer PE, Finnegan KE, Hamon JK, Amoroso C, Hirschhorn LR, Kakoma JB, Lu C, Murangwa Y, Murray M, Ngabo F, Rich M, Thomson D, Binagwaho A. Comprehensive and integrated district health systems strengthening: the Rwanda Population Health Implementation and Training (PHIT) Partnership. BMC Health Serv Res. 2013;13 Suppl 2:S5.
102.Galea JT, Contreras C, Lecca L, Shin S, Lobatón R, Zhang Z, Calderón R, Murray M, Becerra MC. Rapid home-based HIV testing to reduce costs in a large tuberculosis cohort study. Public Health Action. 2013 Jun 21;3(2):172-174.
103.Ford CB, Shah RR, Maeda MK, Gagneux S, Murray MB, Cohen T, Johnston JC, Gardy J, Lipsitch M, Fortune SM. Mycobacterium tuberculosis mutation rate estimates from different lineages predict substantial differences in the emergence of drug-resistant tuberculosis. Nat Genet. 2013 Jul;45(7):784-90.
104.Farhat MR**, Shapiro BJ, Kieser KJ, Sultana R, Jacobson KR, Victor TC, Warren RM, Streicher EM, Calver A, Sloutsky A, Kaur D, Posey JE, Plikaytis B, Oggioni MR, Gardy JL, Johnston JC, Rodrigues M, Tang PK, Kato-Maeda M, Borowsky ML, Muddukrishna B, Kreiswirth BN, Kurepina N, Galagan J, Gagneux S, Birren B, Rubin EJ, Lander ES, Sabeti PC, Murray M.
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Genomic analysis identifies targets of convergent positive selection in drug-resistant Mycobacterium tuberculosis. Nat Genet. 2013 Oct; 45(10):1183-9. 105.Lin HH**, Chiang YT, Chuang JH, Yang SL, Chang HY, Ezzati M, Murray M. Exposure to secondhand smoke and risk of tuberculosis: prospective cohort study. PLoS One. 2013 Oct 25;8(10):e77333. 106.Kudva IT, Smole S, Griffin RW, Garren J, Kalia N, Murray M, John M, Timperi R, Calderwood SB. Polymorphic Amplified Typing Sequences (PATS) Strain Typing System Accurately Discriminates a Set of Temporally and Spatially Disparate Escherichia coli O157 Isolates Associated with Human Infection. Open Microbiol J. 2013 Oct 31;7:123-9. 107.Kendall EA, Theron D, Franke MF, van Helden P, Victor TC, Murray MB, Warren RM, Jacobson KR. Alcohol, hospital discharge, and socioeconomic risk factors for default from multidrug resistant tuberculosis treatment in rural South Africa: a retrospective cohort study. PLoS One. 2013 Dec 13;8(12):e83480. 108.Johnson AD, Thomson DR, Atwood S, Alley I, Beckerman JL, Koné I, Diakité D, Diallo H, Traoré B, Traoré K, Farmer PE, Murray M, Mukherjee J. Assessing Early Access to Care and Child Survival during a Health System Strengthening Intervention in Mali: A Repeated Cross Sectional Survey. PLoS One. 2013 Dec 11;8(12):e81304. 109.Franke MF, Del Castillo H, Pereda Y, Lecca L, Cárdenas L, Fuertes J, Murray MB, Bayona J, Becerra MC. Modifiable Factors Associated with Tuberculosis Disease in Children: A CaseControl Study. Pediatr Infect Dis J. 2014 Jan;33(1):109-11. 110.Franke MF, Del Castillo H, Pereda Y, Lecca L, Fuertes J, Cárdenas L, Becerra MC, Bayona J, Murray M. Parasite Infection and Tuberculosis Disease among Children: A Case-Control Study. Am J Trop Med Hyg. 2014 Feb;90(2):279-82. 111.Nebenzahl-Guimaraes H**, Jacobson KR, Farhat MR, Murray MB. Systematic review of allelic exchange experiments aimed at identifying mutations that confer drug resistance in Mycobacterium tuberculosis. J Antimicrob Chemother. 2014 Feb;69(2):331-42. 112.Huang CC**, Tchetgen ET, Becerra M, Cohen T, Hughes KC, Zhang Z, Calderon R, Yataco R, Contreras C, Galea J, Lecca L, Murray M. The effect of HIV-related immunosuppression on the risk of tuberculosis transmission to household contacts. Clin Infect Dis. 2014 Mar;58(6):765-74. 113.Zelner JL, Murray MB, Becerra MC, Galea J, Lecca L, Calderon R, Yataco R, Contreras C, Zhang Z, Grenfell BT, Cohen T. Bacillus Calmette-Guérin and isoniazid preventive therapy protect contacts of tuberculosis patients. Am J Respir Crit Care Med. 2014 Apr 1;189(7):8539. 114.Ngonghala CN, Pluciński MM, Murray MB, Farmer PE, Barrett CB, Keenan DC, Bonds MH. Poverty, disease, and the ecology of complex systems. PLoS Biol. 2014 Apr 1;12(4):e1001827. 115.Nebenzahl-Guimaraes H**, Borgdorff MW, Murray MB, van Soolingen D. A Novel Approach - The Propensity to Propagate (PTP) Method for Controlling for Host Factors in Studying the Transmission of Mycobacterium Tuberculosis. PLoS One. 2014 May 21;9(5):e97816. 116.Zelner JL, Murray MB, Becerra MC, Galea J, Lecca L, Calderon R, Yataco R, Contreras C, Zhang Z, Grenfell BT, Cohen T. Age-Specific Risks of Tuberculosis Infection from Household
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and Community Exposures and Opportunities for Interventions in a High-Burden Setting. Am J Epidemiol. 2014 Oct 15;180(8):853-61. 117.Langley I, Lin HH, Egwaga S, Doulla B, Ku CC, Murray M, Cohen T, Squire SB. Assessment of the patient, health system, and population effects of Xpert MTB/RIF and alternative diagnostics for tuberculosis in Tanzania: an integrated modelling approach. Lancet Glob Health. 2014 Oct;2 (10):e581-91. 118.Farhat MR**, Shapiro BJ, Sheppard SK, Colijn C, Murray M. A phylogeny-based sampling strategy and power calculator informs genome-wide associations study design for microbial pathogens. Genome Med. 2014 Nov 15;6(11):101. 119.Menzies NA, Cohen T, Murray M, Salomon JA. Effect of empirical treatment on outcomes of clinical trials of diagnostic assays for tuberculosis. Lancet Infect Dis. 2015 Jan;15(1):16-7. 120.Krumme AA, Kaigamba F, Binagwaho A, Murray MB, Rich ML, Franke MF. Depression, adherence and attrition from care in HIV-infected adults receiving antiretroviral therapy. J Epidemiol Community Health. 2015 Mar;69(3):284-9. 121.Ivers LC, Hilaire IJ, Teng JE, Almazor CP, Jerome JG, Ternier R, Boncy J, Buteau J, Murray MB, Harris JB, Franke MF. Effectiveness of reactive oral cholera vaccination in rural Haiti: a casecontrol study and bias-indicator analysis. Lancet Glob Health. 2015 Mar;3(3):e162-8. doi: 10.1016/S2214-109X(14)70368-7. 122.Farhat MR**, Mitnick CD, Franke MF, Kaur D, Sloutsky A, Murray M, Jacobson KR. Concordance of Mycobacterium tuberculosis fluoroquinolone resistance testing: implications for treatment. Int J Tuberc Lung Dis. 2015 Mar;19(3):339-41. 123.Childs LM, Abuelezam NN, Dye C, Gupta S, Murray MB, Williams BG, Buckee CO. Modelling challenges in context: lessons from malaria, HIV, and tuberculosis. Epidemics. 2015 Mar;10:102-7. 124.Oxlade O**, Huang CC, Murray M. Estimating the impact of reducing under-nutrition on the tuberculosis epidemic in the central eastern states of India: a dynamic modeling study. PLoS One. 2015 Jun 5;10(6):e0128187. 125.Broadhurst MJ, Kelly JD, Miller A, Semper A, Bailey D, Groppelli E, Simpson A, Brooks T, Hula S, Nyoni W, Sankoh AB, Kanu S, Jalloh A, Ton Q, Sarchet N, George P, Perkins MD, Wonderly B, Murray M, Pollock NR. ReEBOV Antigen Rapid Test kit for point-of-care and laboratorybased testing for Ebola virus disease: a field validation study. Lancet. 2015 Aug 29;386(9996):867-74. 126.Odone A**, Calderon R, Becerra MC, Zhang Z, Contreras CC, Yataco R, Galea J, Lecca L, Bonds, MH, Mitnick CD, Murray MB. Acquired and Transmitted Multidrug Resistant Tuberculosis: The Role of Social Determinants. PLoS One. 2016 Jan 14;11(1):e0146642. 127.Zelner JL, Murray MB, Becerra MC, Galea J, Lecca L, Calderon R, Yataco R, Contreras C, Zhang Z, Manjourides J, Grenfell BT, Cohen T. Identifying Hotspots of Multidrug-Resistant Tuberculosis Transmission Using Spatial and Molecular Genetic Data. J Infect Dis. 2016 Jan 15;213(2):287-94. 128.Velásquez GE, Cegielski JP, Murray MB, Yagui MJ, Asencios LL, Bayona JN, Bonilla CA, Jave HO, Yale G, Suárez CZ, Sanchez E, Rojas C, Atwood SS, Contreras CC, Santa Cruz J, Shin SS. Impact of HIV on mortality among patients treated for tuberculosis in Lima, Peru: a prospective cohort study. BMC Infect Dis. 2016 Feb 1;16:45.
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129.Farhat MR**, Jacobson KR, Franke MF, Kaur D, Sloutsky A, Mitnick CD, Murray M. Gyrase mutations are associated with variable levels of Fluoroquinolone resistance in Mycobacterium tuberculosis. J Clin Microbiol. 2016 Mar;54(3):727-33.
130.Semper AE, Broadhurst MJ, Richards J, Foster GM, Simpson AJ, Logue CH, Kelly JD, Miller A, Brooks TJ, Murray M, Pollock NR. Performance of the GeneXpert Ebola assay for diagnosis of Ebola virus disease in Sierra Leone: a field evaluation study. PLoS Med. 2016 Mar;13(3):e1001980.
131.Miller AC, Murray MB, Thomson DR, Arbour MC. How consistent are associations between stunting and child development? Evidence from a meta-analysis of associations between stunting and multidimensional child development in fifteen low- and middle-income countries. Public Health Nutr. 2016 Jun;19(8):1339-47.
132.Lahiri N, Shah RR, Layre E, Young D, Ford C, Murray MB, Fortune SM, Moody DB. Rifampin Resistance mutations are associated with broad chemical remodeling of Mycobacterium tuberculosis. J Biol Chem. 2016 Jul 1;291(27):14248-56.
133.Atre SR**, Murray MB. Management and control of multidrug-resistant tuberculosis (MDRTB): Addressing policy needs for India. J Public Health Policy. 2016 Aug 37:277-299.
134.Mukabutera A**, Thomson D, Murray M, Basinga P, Nyirazinyoye L, Atwood S, Savage KP, Ngirimana A, Hedt-Gauthier BL. Rainfall variation and child health: effect of rainfall on diarrhea among under 5 children in Rwanda, 2010. BMC Public Health. 2016 Aug 5;16:731.
135.Diakite I**, Mooring EQ, Velasquez GE, Murray MB. Novel Ordered Stepped-Wedge Cluster Trial Designs for Detecting Ebola Vaccine Efficacy Using a Spatially Structured Mathematical Model. PLoS Negl Trop Dis. 2016 Aug 10;10(8):e0004866.
136.Farhat MR**, Sultana R, Iartchouk O, Bozeman S, Galagan J, Sisk P, Stolte C, NebenzahlGuimaraes H, Jacobson K, Sloutsky A, Kaur D, Posey J, Kreiswirth BN, Kurepina N, Rigouts L, Streicher EM, Victor TC, Warren RM, van Soolingen D, Murray M. Genetic Determinants of Drug Resistance in Mycobacterium tuberculosis and Their Diagnostic Value. Am J Respir Crit Care Med. 2016 Sep 1;194(5):621-30.
137.Thomson DR, Semakula M, Hirschhorn LR, Murray M, Ndahindwa V, Manzi A, Mukabutera A, Karema C, Condo J, Hedt-Gauthier B. Applied statistical training to strengthen analysis and health research capacity in Rwanda. Health Res Policy Syst. 2016 Sep 29;14(1):73.
138.Cancedda C, Davis SM, Dierberg KL, Lascher J, Kelly JD, Barrie MB, Koroma AP, George P, Kamara AA, Marsh R, Sumbuya MS, Nutt CT, Scott KW, Thomas E, Bollbach K, Sesay A, Barrie A, Barrera E, Barron K, Welch J, Bhadelia N, Frankfurter RG, Dahl OM, Das S, Rollins RE, Eustis B, Schwartz A, Pertile P, Pavlopoulos I, Mayfield A, Marsh RH, Dibba Y, Kloepper D, Hall A, Huster K, Grady M, Spray K, Walton DA, Daboh F, Nally C, James S, Warren GS, Chang J, Drasher M, Lamin G, Bangura S, Miller AC, Michaelis AP, McBain R, Broadhurst MJ, Murray M, Richardson ET, Philip T, Gottlieb GL, Mukherjee JS, Farmer PE. Strengthening Health Systems While Responding to a Health Crisis: Lessons Learned by a Nongovernmental Organization During the Ebola Virus Disease Epidemic in Sierra Leone. J Infect Dis. 2016 Oct 15;214(suppl 3):S153-S163.
139.Velasquez GE**, Calderon RI, Mitnick CD, Becerra MC, Huang CC, Zhang Z, Contreras CC, Yataco RM, Galea JT, Lecca LW, Murray MB. Pyrazinamide Resistance Assays and Two-
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Month Sputum Culture Status in MDR-TB Patients. Antimicrob Agents Chemother. 2016 Nov;60(11):6766-6773. 140.Aibana O**, Acharya X, Huang CC, Becerra MC, Galea JT, Chiang SS, Contreras C, Calderon R, Yataco R, Velasquez GE, Tintaya K, Jimenez J, Lecca L, Murray MB. Nutritional Status and Tuberculosis Risk in Adult and Pediatric Household Contacts. PLoS One. 2016 Nov 11;11(11):e0166333. 141.Richardson ET**, Kelly JD, Barrie MB, Mesman AW, Karku S, Quiwa K, Marsh RH, Koedoyoma S, Daboh F, Barron KP, Grady M, Tucker E, Dierberg KL, Rutherford GW, Barry M, Jones JH, Murray MB, Farmer PE. Minimally Symptomatic Infection in an Ebola 'Hotspot': A Cross-Sectional Serosurvey. PLoS Negl Trop Dis. 2016 Nov 15;10(11):e0005087. 142.Miller AC, Ramananjato RH, Garchitorena A, Rabeza VR, Gikic D, Cripps A, Cordier L, Rahaniraka Razanadrakato HT, Randriamanambintsoa M, Hall L, Murray M, Safara Razanavololo F, Rich ML, Bonds MH. Baseline population health conditions ahead of a health system strengthening program in rural Madagascar. Glob Health Action. 2017;10(1):1329961. 143.Aibana O**, Bachmaha M, Krasiuk V, Rybak N, Flanigan TP, Petrenko V, Murray MB. Risk factors for poor multidrug-resistant tuberculosis treatment outcomes in Kyiv Oblast, Ukraine. BMC Infect Dis. 2017 Feb 7;17(1):129. 144.Nebenzahl-Guimaraes H**, van Laarhoven A, Farhat MR, Koeken VACM, Mandemakers JJ, Zomer A, van Hijum SAFT, Netea MG, Murray M, van Crevel R, van Soolingen D. Transmissible Mycobacterium tuberculosis strains share genetic markers and immune phenotypes. Am J Respir Crit Care Med. 2017 Jun 1;195(11):1519-1527. 145.Garchitorena A, Miller AC, Cordier LF, Ramananjato R, Rabeza VR, Murray M, Cripps A, Hall L, Farmer P, Rich M, Orlan AV, Rabemampionona A, Rakotozafy G, Randriantsimaniry D, Gikic D, Bonds MH. In Madagascar, use of health care services increased when fees were removed: lessons for universal health coverage. Health Aff (Millwood). 2017 Aug 1;36(8):1443-1451. 146.Aibana O**, Franke MF, Huang CC, Galea JT, Calderon R, Zhang Z, Becerra MC, Smith ER, Ronnenberg AG, Contreras C, Yataco R, Lecca L, Murray MB. Impact of Vitamin A and Carotenoids on the Risk of Tuberculosis Progression. Clin Infect Dis. 2017 Sep 15;65(6):900909. 147.Rodriguez CA, Smith ER, Villamor E, Zaveleta N, Respicio-Torres G, Contreras C, Perea S, Jimenez J, Tintaya K, Lecca L, Murray MB, Franke MF. Development and validation of a food frequency questionnaire to estimate intake among children and adolescents in urban Peru. Nutrients. 2017 Oct 14;9(10). 148.Farhat MR**, Jacobson KR, Franke MF, Kaur D, Murray M, Mitnick CD. Fluoroquinolone resistance mutation detection is equivalent to culture-based drug sensitivity testing for predicting multidrug-resistant tuberculosis treatment outcome: a retrospective cohort study. Clin Infect Dis. 2017 Oct 15;65(8):1364-1370. 149.Aibana O, Slavuckij A, Bachmaha M, Krasiuk V, Rybak N, Flanigan TP, Petrenko V, Murray MB. Patient predictors of poor drug sensitive tuberculosis treatment outcomes in Kyiv Oblast, Ukraine. F1000Research 2017 Oct 23;6:1873.
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150.Nathavitharana RR, Shi CX, Chindelevitch L, Calderon R, Zhang Z, Galea JT, Contreras C, Yataco R, Lecca L, Becerra MC, Murray MB, Cohen T. Polyclonal Pulmonary Tuberculosis Infections and Risk for Multidrug Resistance, Lima, Peru. Emerg Infect Dis 2017 Nov;11:1883-86.
151.Mukabutera A, Thomson DR, Hedt-Gauthier BL, Atwood S, Basinga P, Nyirazinyoye L, Savage KP, Habimana M, Murray M. Exogenous factors matter when interpreting the results of an impact evaluation: a case study of rainfall and child health programme intervention in Rwanda. Trop Med Int Health. 2017 Dec;22(12):1505-1513.
152.Miotto P, Tessema B, Tagliani E, Chindelevitch L, Starks AM, Emerson C, Hanna D, Kim PS, Liwski R, Zignol M, Gilpin C, Niemann S, Denkinger CM, Fleming J, Warren RM, Crook D, Posey J, Gagneux S, Hoffner S, Rodrigues C, Comas I, Engelthaler DM, Murray M, Alland D, Rigouts L, Lange C, Dheda K, Hasan R , Ranganathan UDK, McNerney R, Ezewudo M, Cirillo DM, Schito M, Köser CU, Rodwell TC. A standardised method for interpreting the association between mutations and phenotypic drug-resistance in Mycobacterium tuberculosis. Eur Respir J. 2017 Dec 28;50(6).
153.Aibana O**, Franke MF, Huang CC, Galea JT, Calderon R, Zhang Z, Becerra MC, Smith ER, Contreras C, Yataco R, Lecca L, Murray MB. Vitamin E Status is inversely associated with risk of incident tuberculosis disease among household contacts. J Nutr. 2018 Jan 1;148(1):56-62.
154.Zelner J, Murray M, Becerra M, Galea J, Lecca L, Calderon R, Yataco R, Zhang Z, Cohen T. Protective effects of household-based TB interventions are robust to neighbourhood-level variation in exposure risk in Lima, Peru: a model-based analysis. Int J Epidemiol. 2018 Feb 1;47(1):185-192.
155.Linger Y, Knickerbocker C, Sipes D, Golova J, Franke M, Calderon R, Lecca L, Thakore N, Holmberg R, Qu P, Kukhtin A, Murray MB, Cooney CG, Chandler DP. Genotyping Multidrug-Resistant Mycobacterium tuberculosis from Primary Sputum and Decontaminated Sediment with an Integrated Microfluidic Amplification Microarray Test. J Clin Microbiol. 2018 Feb 22;56(3). Print 2018 Mar.
156.Wun KS, Reijneveld JF, Cheng TY, Ladell K, Uldrich AP, Le Nours J, Miners KL, McLaren JE, Grant EJ, Haigh OL, Watkins TS, Suliman S, Iwany S, Jimenez J, Calderon R, Tamara KL, Leon SR, Murray MB, Mayfield JA, Altman JD, Purcell AW, Miles JJ, Godfrey DI, Gras S, Price DA, Van Rhijn I, Moody DB, Rossjohn J. T cell autoreactivity directed toward CD1c itself rather than toward carried self lipids. Nat Immunol. 2018 Apr;19(4):397-406.
157.Thomson DR, Amoroso C, Atwood S, Bonds MH, Rwabukwisi FC, Drobac P, Finnegan KE, Farmer DB, Farmer PE, Habinshuti A, Hirschhorn LR, Manzi A, Niyigena P, Rich ML, Stulac S, Murray MB, Binagwaho A. Impact of a health system strengthening intervention on maternal and child health outputs and outcomes in rural Rwanda 2005-2010. BMJ Glob Health. 2018 Apr 9;3(2):e000674.
158.Garchitorena A, Miller AC, Cordier L, Rabeza VR, Randriamanambintsoa M, Razanadrakato HR, Hall L, Haruna J, Randrianambinina A, Thomson DR, Atwood S, Murray MB, Ratsirarson J, Ouenzar MA, Bonds MH. Early changes in intervention coverage and mortality rates following the implementation of an integrated health system intervention in Madagascar: a cohort study. BMJ Glob Health. 2018 Jun 4;3(3):e000762.
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159.Thakore N, Norville R, Franke M, Calderon R, Lecca L, Villanueva M, Murray MB, Cooney CG, Chandler DP, Holmberg RC. Automated TruTip nucleic acid extraction and purification from raw sputum. PLoS One. 2018 Jul 5;13(7):e0199869.
160.McIntosh AI, Jenkins HE, White LF, Barnard M, Thomson DR, Dolby T, Simpson J, Streicher EM, Kleinman MB, Ragan EJ, van Helden PD, Murray MB, Warren RM, Jacobson KR. Using routinely collected laboratory data to identify high rifampicin-resistant tuberculosis burden communities in the Western Cape Province, South Africa: A retrospective spatiotemporal analysis. PLOS Med. 2018 Aug 21;15(8):e1002638. eCollection 2018 Aug.
161.Miller AC, Garchitorena A, Rabeza V, Randriamanambintsoa M, Rahaniraka Razanadrakato HT, Cordier L, Ouenzar MA, Murray MB, Thomson DR, Bonds MH. Cohort Profile: Ifanadiana Health Outcomes and Prosperity longitudinal Evaluation (IHOPE). Int J Epidemiol. 2018 Oct 1;47(5):1394-1395e.
162.CRyPTIC Consortium and the 100,000 Genomes Project, Allix-Béguec C, Arandjelovic I, Bi L, Beckert P, Bonnet M, Bradley P, Cabibbe AM, Cancino-Muñoz I, Caulfield MJ, Chaiprasert A, Cirillo DM, Clifton DA, Comas I, Crook DW, De Filippo MR, de Neeling H, Diel R, Drobniewski FA, Faksri K, Farhat MR, Fleming J, Fowler P, Fowler TA, Gao Q, Gardy J, Gascoyne-Binzi D, Gibertoni-Cruz AL, Gil-Brusola A, Golubchik T, Gonzalo X, Grandjean L, He G, Guthrie JL, Hoosdally S, Hunt M, Iqbal Z, Ismail N, Johnston J, Khanzada FM, Khor CC, Kohl TA, Kong C, Lipworth S, Liu Q, Maphalala G, Martinez E, Mathys V, Merker M, Miotto P, Mistry N, Moore DAJ, Murray M, Niemann S, Omar SV, Ong RT, Peto TEA, Posey JE, Prammananan T, Pym A, Rodrigues C, Rodrigues M, Rodwell T, Rossolini GM, Sánchez Padilla E, Schito M, Shen X, Shendure J, Sintchenko V, Sloutsky A, Smith EG, Snyder M, Soetaert K, Starks AM, Supply P, Suriyapol P, Tahseen S, Tang P, Teo YY, Thuong TNT, Thwaites G, Tortoli E, van Soolingen D, Walker AS, Walker TM, Wilcox M, Wilson DJ, Wyllie D, Yang Y, Zhang H, Zhao Y, Zhu B. Prediction of Susceptibility to First-Line Tuberculosis Drugs by DNA Sequencing. N Engl J Med. 2018 Oct 11;379(15):1403-1415.
163.Mooring EQ**, Mitjà O, Murray MB. Spatial-temporal clustering analysis of yaws on Lihir Island, Papua New Guinea to enhance planning and implementation of eradication programs. PLoS Negl Trop Dis. 2018 Oct 29;12(10):e0006840.
164.Hedt-Gauthier B, Airhihenbuwa CO, Bawah AA, Burke KS, Cherian T, Connelly MT, Hibberd PL, Ivers LC, Jerome JG, Kateera F, Manabe YC, Maru D, Murray M, Shankar AH, Shuchman M, Volmink J. Academic promotion policies and equity in global health collaborations. Lancet. 2018 Nov 3;392(10158):1607-1609.
165.Gupta N, Hirschhorn LR, Rwabukwisi FC, Drobac P, Sayinzoga F, Mugeni C, Nkikabahizi F, Bucyana T, Magge H, Kagabo DM, Nahimana E, Rouleau D, VanderZanden A, Murray M, Amoroso C. Causes of death and predictors of childhood mortality in Rwanda: a matched case-control study using verbal social autopsy. BMC Public Health. 2018 Dec 17;18(1):1378.
166.Farhat MR, Freschi L, Calderon R, Ioerger T, Snyder M, Meehan CJ, de Jong B, Rigouts L, Sloutsky A, Kaur D, Sunyaev S, van Soolingen D, Shendure J, Sacchettini J, Murray M. GWAS for quantitative resistance phenotypes in Mycobacterium tuberculosis reveals resistance genes and regulatory regions. Nat Commun. 2019 May 13;10(1):2128.
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167.Farhat MR, Sixsmith J, Calderon R, Hicks ND, Fortune SM, Murray M. Rifampicin and rifabutin resistance in 1003 Mycobacterium tuberculosis clinical isolates. J Antimicrob Chemother. 2019 Jun 1;74(6):1477-1483.
168.Mesman AW**, Soto M, Coit J, Calderon R, Aliaga J, Pollock NR, Mendoza M, Mestanza FM, Mendoza CJ, Murray MB, Lecca L, Holmberg R, Franke MF. Detection of Mycobacterium tuberculosis in pediatric stool samples using TruTip technology. BMC Infect Dis. 2019 Jun 27;19(1):563.
169.Bellerose M, Baek SH, Huang CC, Moss C, Koh EI, Proulx M, Smith C, Baker R, Lee J, Eum S, Shin SJ, Cho SN, Murray M, Sassetti C. Common variants in the glycerol kinase gene reduce tuberculosis drug efficacy. mBio. 2019 Jul 30;10(4).
170.Ezran C, Bonds MH, Miller AC, Cordier LF, Haruna J, Mwanawabenea D, Randriamanambintsoa M, Razanadrakato HR, Ouenzar MA, Razafinjato BR, Murray M, Garchitorena A. Assessing trends in the content of maternal and child care following a health system strengthening initiative in rural Madagascar: a longitudinal cohort study. PLoS Med. 2019 Aug 20;16(8):e1002869.
171.Luo Y, Suliman S, Asgari S, Amariuta T, Calderon R, Lecca L, León SR, Jimenez J, Yataco R, Contreras C, Galea JT, Becerra M, Nejentsev S, Martínez-Bonet M, Nigrovic PA, Moody DB, Murray MB, Raychaudhuri S. Early progression to active tuberculosis is a highly heritable trait driven by 3q23 in Peruvians. Nat Commun. 2019 Aug 21;10(1):3765.
172.Buter J, Cheng TY, Ghanem M, Grootemaat AE, Raman S, Feng X, Plantijn AR, Ennis T, Wang J, Cotton RN, Layre E, Ramnarine AK, Mayfield J, Young DC, Martinot A, Siddiqi N, Wakabayashi S, Botella H, Calderon R, Murray M, Ehrt S, Snider BB, Reed MB, Oldfield E, Tan S, Rubin EJ, Behr MA, van der Wel NN, Minnaard AJ, Moody DB. Mycobacterium tuberculosis releases an antacid that remodels phagosomes. Nat Chem Biol. 2019 Sep;15(9):889-899.
173.Aibana O, Huang CC, Aboud S, Arnedo-Pena A, Becerra MC, Bellido-Blasco JB, Bhosale R, Calderon R, Chiang S, Contreras C, Davaasambuu G, Fawzi WW, Franke MF, Galea JT, Garcia-Ferrer D, Gil-Fortuño M, Gomila-Sard B, Gupta A, Gupte N, Hussain R, IborraMillet J, Iqbal NT, Juan-Cerdán JV, Kinikar A, Lecca L, Mave V, Meseguer-Ferrer N, Montepiedra G, Mugusi FM, Owolabi OA, Parsonnet J, Roach-Poblete F, Romeu-García MA, Spector SA, Sudfeld CR, Tenforde MW, Togun TO, Yataco R, Zhang Z, Murray MB. Vitamin D status and risk of incident tuberculosis disease: A nested case-control study, systematic review, and individual-participant data meta-analysis. PLoS Med. 2019 Sep 11;16(9):e1002907.
174.Becerra MC, Huang CC, Lecca L, Bayona J, Contreras C, Calderon R, Yataco R, Galea J, Zhang Z, Atwood S, Cohen T, Mitnick CD, Farmer P, Murray M. Transmissibility and potential for disease progression of drug resistant Mycobacterium tuberculosis: prospective cohort study. BMJ. 2019 Oct 24;367:l5894.
175.Reinink P, Shahine A, Gras S, Cheng TY, Farquhar R, Lopez K, Suliman SA, Reijneveld JF, Le Nours J, Tan LL, León SR, Jimenez J, Calderon R, Lecca L, Murray MB, Rossjohn J, Moody DB, Van Rhijn I. A TCR β-Chain Motif Biases toward Recognition of Human CD1 Proteins. J Immunol. 2019 Dec 15;203(12):3395-3406.
176.Li R**, Nordio F, Huang CC, Contreras C, Calderon R, Yataco R, Galea JT, Zhang Z, Becerra MC, Lecca L, Murray MB. Two clinical prediction tools to improve tuberculosis contact investigation. Clin Infect Dis. 2020 Jan 6. [Epub ahead of print]
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177.Aibana O, Dauria E, Kiriazova T, Makarenko O, Bachmaha M, Rybak N, Flanigan TP, Petrenko V, Becker AE, Murray MB. Patients' perspectives of tuberculosis treatment challenges and barriers to treatment adherence in Ukraine: a qualitative study. BMJ Open. 2020 Feb 2;10(1):e032027.
178.Lopez K, Iwany SK, Suliman S, Reijneveld JF, Ocampo TA, Jimenez J, Calderon R, Lecca L, Murray MB, Moody DB, Van Rhijn I. CD1b tetramers broadly detect T cells that correlate with mycobacterial exposure but not tuberculosis disease state. Front Immunol. 2020 Feb 14;11:199.
179.Huang CC, Chu AL, Becerra MC, Galea JT, Calderon R, Contreras C, Yataco R, Zhang Z, Lecca L, Murray MB. Mycobacterium tuberculosis Beijing lineage and the risk of tuberculosis in child household contacts. Emerg Infect Dis. 2020 Mar;26(3):568-578.
180.Martinez L, Cords O, Horsburgh CR, Andrews JR; Pediatric TB Contact Studies Consortium. The risk of tuberculosis in children after close exposure: a systematic review and individualparticipant meta-analysis. Lancet. 2020 Mar 21;395(10228):973-984.
181.Kukhtin A, Norville R; Bueno A, Qu P, Parrish N, Murray M, Chandler D, Holmberg R, Cooney C. A benchtop automated sputum-to-genotype system using a Lab-on-a-Film assembly for detection of multidrug-resistant Mycobacterium tuberculosis. Anal Chem. 2020 Apr 7;92(7):5311-5318.
182.Suliman S, Gela A, Mendelsohn SC, Iwany SK, Tamara KL, Mabwe S, Bilek N, Darboe F, Fisher M, Corbett AJ, Kjer-Nielsen L, Eckle SBG, Huang CC, Zhang Z, Lewinsohn DM, McCluskey J, Rossjohn J, Hatherill M, León SR, Calderon RI, Lecca L, Murray M, Scriba TJ, Van Rhijn I, Moody DB; South African Tuberculosis Vaccine Initiative (SATVI) Clinical Immunology Team. Peripheral blood mucosal-associated invariant T (MAIT) cells in tuberculosis patients and healthy Mycobacterium tuberculosis-exposed controls. J Infect Dis. 2020 Apr 8. [Epub ahead of print]
183.Penn-Nicholson A, Mbandi SK, Thompson E, Mendelsohn SC, Suliman S, Chegou NN, Malherbe ST, Darboe F, Erasmus M, Hanekom WA, Bilek N, Fisher M, Kaufmann SHE, Winter J, Murphy M , Wood R, Morrow C, Van Rhijn I, Moody DB, Murray M, Andrade BB, Sterling TR, Sutherland J, Naidoo K, Padayatchi N, Walzl G, Hatherill M, Zak D, Scriba TJ, and the Adolescent Cohort Study team, GC6-74 Consortium, the SATVI Clinical and Laboratory Team, The ScreenTB and AE-TBC teams, CAPRISA IMPRESS team, RePORT Brazil Consortium and Peruvian Household Contacts Cohort study group. RISK6, a 6-gene transcriptomic signature of TB disease risk, diagnosis and treatment response. Sci Rep. 2020. In press.
184.Li R**, Rivers C, Tan Q, Murray MB, Toner E, Lipsitch M. Estimated Demand for US Hospital Inpatient and Intensive Care Unit Beds for Patients With COVID-19 Based on Comparisons with Wuhan and Guangzhou, China. JAMA Netw Open. 2020 May 6;3(5):e208297.
185.Sonenthal PD, Masiye J, Kasomekera N, Marsh RH, Wroe EB, Scott KW, Li R, Murray MB, Bukhman A, Connolly E, Minyaliwa T, Katete M, Banda G, Nyirenda M, Rouhani SA. SARS-CoV-2 preparedness in Malawi: results of a national facility-based critical care assessment. Lancet Glob Health. 2020. In press.
186.Asgari, S., Luo, Y., Akbari, A, Belbin GM, Li X, Harris DN, Selig M, Bartell E, Calderon R, Slowikowski K, Contreras C, Yataco R, Galea JT, Jimenez J, Coit JM, Farroñay C, Nazarian RM, O’Connor TD, Dietz HC, Hirschhorn JN, Guio H, Lecca L, Kenny
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EE, Freeman EE, Murray MB, Raychaudhuri S. A positively selected FBN1 missense variant reduces height in Peruvian individuals. Nature. 2020 May 13.
(** = mentee)
Other peer-reviewed publications
1. Logigian EL, Murray MB. Case 42-1994— A 19-year-old man with rapidly progressive lowerextremity weakness and dysesthesias after a respiratory tract infection. NEJM 1994;331:1437-44.
2. Murray M, Nardell E. Molecular epidemiology of tuberculosis: achievements and challenges to current knowledge. Bull World Health Organ. 2002;80(6):477-82.
3. Brickner PW, Vincent RL, First M, Nardell E, Murray M, Kaufman W. The application of ultraviolet germicidal irradiation to control transmission of airborne disease: bioterrorism countermeasure. Public Health Rep 2003;118:99-114.
4. Cohen T**, Sommers B, Murray M. The effect of drug resistance on the fitness of Mycobacterium tuberculosis. Lancet Infect Dis 2003;3:13-21.
5. Gessler D, Dye C, Farmer P, Murray M, Navin T, Reves R, Shinnick T, Small PM, Yates T, Simpson G. Public health. A national tuberculosis archive. Science 2006 Mar 3;311:1245-6.
6. Murray M. The epidemiology of SARS. In: Kleinman A, Watson JL, editors. SARS in China; prelude to pandemic? Stanford, CA: Stanford University Press; 2006. p. 17-30.
7. Colijn C, Cohen T, Murray M. Mathematical models of tuberculosis: accomplishments and future challenges. Proceedings of BIOMAT 2006 - International Symposium on Mathematical and Computational Biology; 2006 Nov 27-30, Manaus, Brazil. World Scientific Publishing Co. 2007.
8. Cohen T, Colijn C, Murray M. Mathematical modeling of tuberculosis transmission dynamics. In: Handbook of Tuberculosis: Clinics, Diagnostics, Therapy, and Epidemiology. Kaufman SH, van Helden P, eds. Weinheim: Wiley-VCH; 2008.
9. Cohen T**, Dye C, Colijn C, Williams B, Murray M. Mathematical models of the epidemiology and control of drug-resistant TB. Expert Rev Resp Med. 2009;3:67-9.
10. Harries AD, Murray MB, Jeon CY, Ottmani SE, Lonnroth K, Kapur A. Response to letter from Sarah Bailey and Peter Godfrey-Faussett. Trop Med Int Health. 2010 Jul 15(11):1402.
11. Boulle A, Clayden P, Cohen K, Cohen T, Conradie F, Dong K, Gelfen N, Grimwood A, Hurtado R, Kenyon C, Lawn S, Maartens G, Meindjes G, Mandelson M, Murray M, Sanne I, Spencer D, Taljaand J, Vanieva E, Venter F, Wilson D. Prolonged deferral of antiretroviral therapy in the SAPIT trial: did we need a clinical trial to tell us that this would increase mortality? S Afr Med J. 2010 Sep 7;100(9):566, 568, 570-1.
12. Rinaldo A, Blokesch M, Bertuzzo E, Mari L, Righetto L, Murray M, Gatto M, Casagrandi R, Rodriguez-Iturbe I. A transmission model of the 2010 cholera epidemic in Haiti. Ann Intern Med. 2011 Sep 20;155(6):403-4.
13. Nahid P, Kim PS, Evans CA, Alland D, Barer M, Diefenbach J, Ellner J, Hafner R, Hamilton CD, Iademarco M, Ireton B, Kimerling M, Lienhardt C, Mackenzie W, Murray M, Perkins MD, Posey J, Roberts T, Sizemore S, Stevens WS, Via L, Williams SD, Yew WW, Swindells S.
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Clinical research and development of tuberculosis diagnostics: moving from silos to synergy. J Infect Dis. 2012 May 15; 205(Suppl 2): S159–S168. 14. Dheda K, Gumbo T, Gandhi NR, Murray M, Theron G, Udwadia Z, Migliori GB, Warren R. Global control of tuberculosis: from extensively drug-resistant to untreatable tuberculosis. Lancet Respir Med. 2014 Apr;2(4):321-338. 15. Ferrara G, Murray M, Winthrop K, Centis K, Sotgiu G, Migliori GB, Maeurer M, Zumla A. Risk factors associated with pulmonary tuberculosis: smoking, diabetes and anti-TNF-α drugs. Curr Opin Pulm Med. 2012 May;18(3):233-40. 16. Jeon CY**, Murray MB, Baker MA. Managing tuberculosis in patients with diabetes mellitus: why we care and what we know. Expert Rev Anti Infect Ther. 2012 Aug;10(8):863-8. 17. Andrews JR., Basu S, Dowdy DW, Murray MB. The epidemiological advantage of preferential targeting of tuberculosis control at the poor. Int J Tuberc Lung Dis. 2015 Apr;19(4):375-80. Review. Erratum in: Int J Tuberc Lung Dis. 2015 Aug;19(8):1000. 18. Velasquez GE**, Aibana O, Ling EJ, Diakite I, Mooring EQ, Murray MB. Time from infection to disease and infectiousness for Ebola virus disease, a systematic review. Clin Infect Dis. 2015 Oct 1;61(7):1135-40. 19. Dheda K, Gumbo T, Maartens G, Dooley KE, McNerney R, Murray M, Furin J, Nardell EA, London L, Lessem E, Theron G, van Helden P, Niemann S, Merker M, Dowdy D, Van Rie A, Siu GK, Pasipanodya JG, Rodrigues C, Clark TG, Sirgel FA, Esmail A, Lin HH, Atre SR, Schaaf HS, Chang KC, Lange C, Nahid P, Udwadia ZF, Horsburgh CR Jr, Churchyard GJ, Menzies D, Hesseling AC, Nuermberger E, McIlleron H, Fennelly KP, Goemaere E, Jaramillo E, Low M, Jara CM, Padayatchi N, Warren RM. The epidemiology, pathogenesis, transmission, diagnosis, and management of multidrug-resistant, extensively drug-resistant, and incurable tuberculosis. Lancet Respir Med. 2017 Mar 15. pii: S2213-2600(17)30079-6. Review. 20. Dheda K, Gumbo T, Maartens G, Dooley KE, Murray M, Furin J, Nardell EA, Warren RM; Lancet Respiratory Medicine drug-resistant tuberculosis Commission group. The Lancet Respiratory Medicine Commission: 2019 update: epidemiology, pathogenesis, transmission, diagnosis, and management of multidrug-resistant and incurable tuberculosis. Lancet Respir Med. 2019 Sep;7(9):820-826.
(** = mentee)
Research publications without authorship
1. TB Sequencing Consortium, A first for tuberculosis research in South Africa: whole genome sequence of the South African Mycobacterium tuberculosis strain F11 released. South African Journal of Science 2005;101:393-5. (*Principal Investigator)
Non-peer reviewed scientific or medical publications/materials in print or other media
1. Kim JY, Mitnick C, Bayona J, Blank R, Nardell E, Mukherjee J, Rich M, Farmer P, Becerra M, Murray M. Examining assumptions about multi-drug resistant TB control : round table discussion / Jim Yong Kim ...[et al.]. Bull WHO 2002; 80:498.
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2. Ryan ET, Murray M. Epidemiology and biostatistics. In: Guerrant RL, Walker DH, Weller PF, editors. Tropical Infectious Diseases: Principles, Pathogens, and Practice. Second Edition. New York: Elsevier; 2005. p. 11-16.
3. Cave DM, Nardell E, Murray M. Molecular epidemiology of Mycobacterium tuberculosis. In: Jacobs W, Cole ST, editors. Tuberculosis. Washington DC: ASM Press 2005.
4. Murray M and King G. The effects of International Monetary Fund loans on health outcomes. PLoS Med 2008;5:e162.
5. Murray M and Cohen T. Extensively drug resistant tuberculosis and HIV/AIDS. In: Kaufmann, SHE, Walker, BD, editors. AIDS-TB: A Deadly Liaison, Weinheim. Wiley-VCH; 2009.
6. Murray M. Epidemiology of tuberculosis. In: Raviglione, MC, editor. Tuberculosis: Fourth Edition, The Essentials. New York: Informa Healthcare USA, Inc. 2009. p. 23-59.
7. Murray M, How Epidemics Happen. Nature Medicine 2010:16: 159. Book review. 8. Farmer PE, Murray M, Hedt-Gauthier B. Clinical Trials and Global Health Equity. The Lancet
Global Health Blog; 8 July 2013. Available at: http://globalhealth.thelancet.com/2013/07/08/clinical-trials-and-global-health-equity 9. Bonds MH, Garchitorena A, Cordier L, Miller AC, McCarty M, Andriamihaja B, Ratsirarson J, Randrianambinina A, Rabeza VR, Finnegan K, Gillespie T, Wright PA, Farmer PE, Loyd T, Murray MB, Herrnstein RM, Herrnstein JR, PIVOT Impact Team, Gikic D, Ouenzar MA, Hall L, Rich ML. Advancing a Science for Sustaining Health: Establishing a Model Health District in Madagascar. BioRxiv [Preprint]. [posted 2017 May 30]. Available from: https://www.biorxiv.org/content/early/2017/05/30/141549 10. Bloom BR, Atun R, Cohen T, Dye C, Fraser H, Gomez GB, Knight G, Murray M, Nardell E, Rubin E, Salomon J, Vassall A, Volchenkov G, White R, Wilson D, Yadav P. Tuberculosis. In: Holmes KK, Bertozzi S, Bloom BR, Jha P, editors. Major Infectious Diseases. 3rd edition. Washington (DC): The International Bank for Reconstruction and Development / The World Bank; 2017 Nov 3. 11. Buckee C, Hedt-Gauthier B, Mahmud A, Martinez P, Tedijanto C, Murray M, Khan R, Menkir T, Suliman S, Fosdick B, Cobey S, Rasmussen A, Popescu S, Cevik M, Dada S, Fowkes F, Clapham H, Mordecai E, Hampson K, Majumder M, Wesolowski A, Kuppalli K, Rodriguez Barraquer I, Smith TC, Hodcroft E, Christofferson RC, Cormier SA, Gerardin J, Cowley L, Childs L, Keegan LT, Pitzer V, Oldenburg C. Women in science are battling COVID-19 and patriarchy at the same time. Times Higher Ed. 15 May 2020.
Thesis
Murray, MB. Problems in the Molecular Epidemiology of Tuberculosis [Dissertation]. Boston (MA): Harvard School of Public Health; 2001.
Narrative
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To date, my career has focused on two main areas: advancing progress in tuberculosis management and control and developing research capacity in low and middle-income countries.
My work on tuberculosis has shifted over the past twenty years from a focus on dynamical modeling of TB epidemics to field studies on the bacterial and host determinants of TB infection and disease. Between 2008-2013, I led a multi-disciplinary consortium that studied the impact of drug resistance of the transmission dynamics of tuberculosis in Lima, Peru. This project followed over 18000 people for TB-associated outcomes and has generated data that has allowed my team to also address a range of host and environmental factors that contribute to the transmission and disease burden of TB. More recently, our work in this area has centered on the links between host metabolic and immune function as determinants of the outcome of TB infection. This work, which is funded through an NIH consortium grant which I co-lead with Dr. Branch Moody, is another multi-disciplinary collaboration, this time among immunologists, epidemiologists, geneticists and veterinary pathologists.
My work on drug resistant tuberculosis has also led me to use targeted and whole genome sequencing to study “genomic epidemiology” and to elucidate the genetic basis of drug resistance phenotypes. To date, we have sequenced over 1500 TB strains and have created an innovative data interface tool that allows us to use whole genome data in epidemiologic studies. Currently, we are funded by NIH to identify, collect, archive, sequence and analyze the drug resistance genes in M. tuberculosis strains from around the world. These data are then passed to our collaborators who attempt to validate our findings by generating and phenotyping Mtb variants and to our industry partners who are developing point of care diagnostic tests to detect drug resistance. I am the PI of this collaborative project which is funded through an NIH Center for Excellence in Translational Research.
In addition to my roles on my grant-funded projects, I am the research director for the Division of Global Health Equity in the Department of Medicine at the Brigham and Women’s Hospital and the non-governmental organization, Partners In Health (PIH). In that capacity, I support the research mission of the Global Health Delivery Partnership by building research infrastructure and mentoring junior faculty interested in research careers. At HMS, I lead the Department of Global Health and Social Medicine’s “research core,” a team of eight epidemiologists, biostatisticians and programmers in the task of identifying and developing research opportunities in affiliation with PIH and other NGO’s clinical field sites. Much of this work focuses on developing methods to evaluate the health interventions implemented in these sites and in designing and carrying out studies to conduct such evaluations. Increasingly, our mission has encompassed the training and development of independent researchers from the countries in which we work.
Almost all my academic work has been conducted in the context of training graduate students and post-doctoral fellows. I have directly supervised 39 graduate students or post-doctoral fellows, almost all of whom have published with me. Fourteen of my former trainees have gone
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on to tenure track faculty positions and six have joined international and non-governmental organizations focused on global health. Among many committee assignments, I am particularly proud of my contribution to the Task Force on Women in Science and Engineering which made recommendations that I believe have improved the working lives of many women in science at Harvard. I have served on the Human Subjects Committee at HSPH, co-chaired the Community Engagement Mission of the Strategic Leadership Team at the Brigham and Women’s Hospital and led a number of junior and senior faculty searches.
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF PAUL GRONKE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

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1. I am a Professor of Political Science at Reed College and Director of the Early Voting Information Center. I received a BA in Political Science from the University of Chicago, a Master’s Degree in Western European Politics from the University of Essex, Colchester UK, and a PhD in Political Science from the University of Michigan. I have written scientific research publications on voting by mail, early voting, voter turnout, and election administration that have appeared in peerreviewed journals and university press edited volumes. I have written and collaborated on policy reports on public opinion and the opinions of local election officials (LEOs) about elections and election administration. The principal focus of my research and writing since 2006 has been early voting, election administration, local election officials, and public opinion about elections, election reform, and electoral integrity.
2. I created the Early Voting Information Center (EVIC) in 2006 as a nonpartisan center for the study of non-precinct place voting in the United States. EVIC has attracted more than $1,000,000 in funding from public charities, non-profits, state governments, and federal agencies. As the Director of EVIC, I regularly consult with election officials at the local and state level to help them anticipate and plan for the changes wrought by the growth in early in-person, no-excuse absentee, and vote by mail voting. I worked as a contractor and subcontractor in 2006 and 2008 for the federal Election Assistance Commission, helping to oversee the collection, analysis, and reporting of election administration data pertaining to the National Voter Registration Act, the Uniformed Overseas and Citizens Abroad Voting Act, and the Election Administration and Voting Survey. I helped develop the section of the Election Assistance Commission’s Election
2
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Administration and Voting Survey (EAVS) that asks for information about early in-person and absentee ballots. I designed the survey questions for early voting used by two highly regarded academic election surveys, the Cooperative Congressional Election Study (CCES) and the American National Election Study.
3. I have published a number of articles that contain statistical analyses of national, regional, and state trends in voting by mail, early voting, and the demographic and attitudinal characteristics of individual early in-person and no-excuse absentee voters. These publications include peer-reviewed articles in American Politics Research (2012), the Annual Review of Political Science (2008), the Journal of Social Issues (2008), and PS: Political Science and Politics (2007). Other published works that discuss the legal and administrative changes to early voting and the public response include a 2015 Electoral Studies article, a 2014 chapter in Measure of American Elections, a 2008 William and Mary Law Review article, a 2008 chapter in Democracy in the States, and 2019, 2016, and 2008 chapters in editions of America Votes! A Guide to Election Law and Voting Rights. A complete list of my publications is included in my curriculum vitae, attached to this document.
4. In light of my scientific expertise, I was retained to give expert testimony in League of Women Voters v. State of North Carolina (Civil Action No. 1:13-CV-660, 2014-2015) and provided an expert report in Ohio State Conference of the NAACP, et al. vs. John Husted et al. (Case No. 2:14-cv-00404, Summer 2014).
5. I have been retained to opine on the impact of the COVID-19 pandemic on administering the November 3, 2020, general election in North Carolina. Specifically, I have been asked to opine on (1) the
3
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impact of the COVID-19 pandemic on administering in-person voting (early and on Election Day); (2) the impact of the COVID-19 pandemic on by-mail voting; (3) the evidence accumulated so far in 2020 regarding the best mix of in-person and by-mail voting options; and (4) when and how state and local election administrators in North Carolina need to act in order to assure a safe, secure, and accessible election this fall.
6. My expert opinion is that the State of North Carolina needs to act immediately to assure a safe, secure, and accessible election in November. The state should encourage county boards to immediately identify sufficient in-person voting locations for early voting and precinct place voting, and require that this information be publicly released at the earliest possible instance. The state should suspend the uniform hours requirement for satellite early in-person voting locations and should suspend the requirement that a majority of poll workers reside within an election precinct. The state should allow for electronic requests of absentee ballots and suspend the requirement for two witness signatures on the returned ballot materials. Finally, the state should assure that sufficient resources are available to every county board to implement these changes.
I. Background on Voting By Mail A. National Trends
7. Voting by mail is a method of balloting in which a ballot is produced by a local election official, transmitted to an eligible voter using the United States Postal Service (in most cases 1 ); an eligible citizen
1 The Federal Military and Overseas Voter Empowerment Act (MOVE) requires states to provide blank absentee ballots to UOCAVA (Uniformed and Overseas Citizens Absentee Voting Act) voters in at least on electronic format – email, fax, or an online delivery system – at least 45 days before an election. https://www.fvap.gov/uploads/FVAP/Policies/moveact.pdf
4
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completes the ballot and provides additional validating information (in most cases, a signature, although 12 states require additional or alternate verifying information, such as a notary or witness signature, copy of a valid identification, or copy of an identification and a witness or notary signature2); and the ballot is returned using the United States Postal Service or is returned to a designated drop box or elections office. 8. The terminology used to describe voting by mail can be a point of confusion. Historically, this method of voting has been called “absentee voting” because the assumption is made that an eligible voter is sent and casts a ballot outside of an elections office or polling place on Election Day because the voter is “absent” and unable to appear on Election Day. Absentee voting was first made available in nineteen of twenty-five states in the 1864 election so that soldiers in the field could exercise the franchise.3 By the end of World War II, most states provided for some sort of civilian access to an absentee ballot for a variety of reasons: business travelers, railroad workers, and citizens who were sick and infirm. With the ratification of the 26th Amendment and the addition of many college students to the voting rolls, many states extended absentee balloting rights to students. In 1975, the passage of the Overseas Citizens Voting Rights Act (Pub. L. No. 94-203, 89 Stat. 1142 (1976)) extended absentee balloting to citizens living overseas. In all of these cases, the voter is presumed to have a legally specified reason for being “absent” on Election Day. 9. I will refer in this document to this method of balloting as “excuse-
2 State requirements for verifying absentee ballots are documented by the National Conference of State Legislatures. https://www.ncsl.org/research/elections-and-campaigns/verification-of-absentee-ballots.aspx. 3 Fortier, John C. 2006. Absentee and Early Voting: Trends, Promises, and Perils. Washington, D.C.: AEI Press.
5
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required absentee voting.” As of the time of this writing, sixteen states require an excuse for requesting an absentee ballot. 10. In the late 1980s, beginning with California in 1978, and followed by a number of additional states in the 1980s and 1990s, many states removed the need for a designated excuse to request an absentee ballot, thus giving rise to a second method, most commonly referred to as “no-excuse absentee voting.” 4 Today, thirty-four states and the District of Columbia, including North Carolina, do not require an excuse to vote absentee by mail.5 11. Finally, five states among those thirty-four are “fully vote by mail,” sometimes referred to as “universal ballot delivery” states. This method was first put in place in Oregon in 2000, and is also used by Colorado, Hawaii, Utah, and Washington. In a fully vote by mail system, every valid registered voter on the registration rolls is sent a ballot without the need to file a request. These fully vote by mail states do not operate precinct polling places, although states continue to provide in-person voting services at county offices and, in some cases, designated voting centers in addition to county offices.
4 John Fortier, 2006, Absentee and Early Voting: Trends, Promises, and Perils. Washington, DC: AEI Press. 5 N.C. Gen. Stat. § 163-226(a)
6
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12. The following figure, reproduced from the National Conference of State Legislatures, 6 provides a visual representation of these three different “voting by mail” voting regimes. As the figure makes clear, no-excuse absentee voting is available in every region of the country.

No Excuse Required to Vote

AK

Absentee (or by Mail)

ME

VT NH

WA MT ND MN WI

MI

NY MA RI *

ID WY SD IA IL IN OH PA NJ CT

OR NV CO NE MO KY WV MD DE DC

CA AZ UT KS AR TN VA NC

NM OK LA MS AL SC

Legend

NC

No excuse absentee/mail

ballot voting

TX

GA

All-mail elections

VA

*Rhode Island lists a

HI

FL

number of excuses to vote

absentee, including "no

AS GU MP PR VI

specific reason

necessary."

Figure 1: Vote By Mail Options as of May 2020

13. For the purposes of this report, I will rely on the umbrella term “voting by mail” to refer to the no-excuse absentee election administration system that is currently in place in North Carolina and other states. When I refer to a citizen “voting by mail,” I refer to the individual act of casting the absentee ballot, regardless of the state in which they live.

14. The use of voting by mail and early in person voting has grown as these methods became more widely available across the country. The Census Bureau has conducted the Current Population Survey (CPS) Voting and Registration Supplement in November of federal election years since 1960.7 The CPS is a large random sample survey that is an

6 Source: https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx 7 https://www.census.gov/topics/public-sector/voting.html
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authoritative source to compare registration and voting in the United States. The following figure displays the percentage of respondents nationwide who report voting on Election Day, voting early in-person, and voting by mail from 1996-2018 (prior to these years, the CPS did not ask about when the ballot was cast). According to the CPS survey data, Election Day voting comprised more than 90% of ballots cast in 1996, and just over 5% of the survey respondents said that they cast a ballot by mail. Twenty-two years later, according to the CPS survey conducted after the November 2018 election, 23.1% of CPS respondents said they cast a ballot by mail.8
8 2018 Current Population Survey Voting and Registration Supplement, Table 14, “Method of Voting by Selected Characteristics: November 2018.” https://www.census.gov/data/tables/time-series/demo/voting-andregistration/p20-583.html
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Figure 2: Election Day, Early In Person, and Voting By Mail from 19962018 B. North Carolina 15. North Carolina removed the need for an excuse to request an absentee ballot in 2001.9 Figure 3 details the percentage of voters in North Carolina who report casting a ballot on Election Day, Early In Person, and By Mail from 1996-2018, using data from the CPS Voting and Registration Supplement.10 Official voter turnout statistics from the State of North Carolina indicate that 5.5% of ballots were cast absentee by mail in 201611
9 N.C. Gen. Stat. § 163-226(a). 10 Calculated by the author using the CPS Voting and Registration Supplement survey datasets. 11 Source: NC Board of Elections, https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_11_08/absentee_stats_20161108.pdf
9
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and 2.4% of ballots were cast absentee by mail in 2018.12
Figure 3: Use of Election Day, Early In Person, and Voting By Mail In North Carolina
16. Usage of voting by mail remains very low in North Carolina, something that distinguishes the state from other states that do not require an excuse to request an absentee ballot. According to data reported by the Federal Election Assistance Commission’s Election Administration and Voting Survey, in 2016 North Carolina has the seventh lowest percentage of ballots that were cast absentee by-mail.
12 Calculated by the author from the 2018 absentee ballot (https://dl.ncsbe.gov/?prefix=ENRS/2018_11_06/) and the total ballots cast in 2018 (https://er.ncsbe.gov/?election_dt=11/06/2018&county_id=0&office=FED&contest=0).
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Among the states that did not require an excuse for casting an absentee ballot, North Carolina ranked lowest in terms of the percentage of ballots cast absentee by-mail.13 17. One possible reason for this is that North Carolina rejects many absentee ballots. In Figure 4, I report the average percentage of absentee ballots rejected in 2012, 2014, 2016, and 2018 among four kinds of states: states with all vote by mail, states with high vote by mail usage (50% and higher), states with mid-tier vote by mail usage (20-50%), and states with mostly polling places. Thirty-one states, including North Carolina, fall into the “mostly polling places” category.14 As shown in the figure, mail ballot rejection rates in states that mainly use polling places are substantially higher than in states with more extensive by-mail balloting. North Carolina stands out as having a rejection rate higher than the average in the “mostly polling place” (less than 20% by mail ballots) in 2014, 2016, and 2018.
13 Comparisons calculated by the author. Percentages were calculated by dividing the number of absentee ballots counted by turnout, from Pg. 23-25, Table 2, of the Election Assistance Commission, The Election Administration and Voting Survey: 2016 Comprehensive Report. https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf. State absentee ballot laws in 2016 were taken from the National Conference of State Legislatures. As of October 2018, the NCSL reported that Alabama, Arkansas, Connecticut, Delaware, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and West Virginia were the states that required an excuse to cast an absentee ballot. http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx. 14 Calculations were made by the author. State absentee usage categories are determined by the 2018 absentee ballot rate, calculated using the 2018 EAVS, as described in Footnote 13. .
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Figure 4: Mail Ballot Rejection Rates in the 2014 – 2018 Elections 18. Voters in North Carolina have shown a strong preference to continue
to cast a ballot at a precinct place or at an early in-person voting location, even though no-excuse absentee balloting has been available for nearly two decades. In the following sections of the report, I examine how COVID-19 impacts the administration of in-person and by-mail voting. II. The Impact of the COVID-19 Pandemic On Administering Elections A. In-Person Voting 19. The Centers for Disease Control and Prevention (CDC) has issued interim guidance for election polling locations to prevent the spread of the novel coronavirus that causes COVID-19. The recommendations include: encouraging mail-in voting, encouraging early voting, relocating polling places from locations that would put certain populations at risk (e.g. nursing homes and senior living residences), and adding social distancing measures to protect
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individuals during voting.15
20. Expert reports that have been issued since the onset of the pandemic recommend that election officials “develop techniques to spread out arrivals to polling places so that they are more even throughout the day.”16 Election officials are urged to obtain and provide personal protective equipment and other supplies to assure the safety of poll workers and voters.17
21. Election officials may need to identify additional polling sites in order to provide a safe voting environment. The Ad Hoc Committee for 2020 Election Fairness and Legitimacy at the University of CaliforniaIrvine argues that additional in-person voting locations may be necessary:
To the extent [election officials]have discretion, they can increase the number of polling places and decline to consolidate polling places. By minimizing the number of voters assigned to each location, election officials can reduce crowd size, shorten lines, and promote social distancing.18 North Carolina laws and policies need to be adjusted in order to allow election officials to implement these recommendations, find new polling locations, and communicate these changes to voters.
22. Some areas may need to consolidate polling places because some
15 Centers for Disease Control, “Recommendations for Election Polling Locations.” March 27, 2020. https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html Accessed May 21, 2020. 16 Nathaniel Persily and Charles Stewart, III, March 19, 2020, “Ten Recommendations To Ensure A Healthy and Trustworthy 2020 Election,” Lawfare, https://www.lawfareblog.com/ten-recommendations-ensure-healthy-andtrustworthy-2020-election Accessed May 20, 2020. 17 Christopher R. Deluzio, Elizabeth Howard, David Levine, Paul Rosenzweig, and Derek Tisler. April 20, 2020. “Ensuring Safe Elections.” Report of the Brennan Center for Justice. https://www.brennancenter.org/sites/default/files/2020-04/2020_04_5StateCostAnalysis_FINAL.pdf Accessed May 20, 2020; Ad Hoc Committee for 2020 Election Fairness and Legitimacy. April 2020. “Fair Elections During A Crisis.” Irvine, CA: University of California, Irvine Law School. https://www.law.uci.edu/faculty/fulltime/hasen/2020ElectionReport.pdf. Pg. 7. 18 UCI Ad Hoc Committee Report, pg. 7
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locations that have traditionally been used (e.g. schools, long-term care facilities, retirement homes) are no longer available. As the National Conference of State Legislature’s “Covid-19 and Elections” website notes:19
Poll workers may not be as willing to serve due to health risks, which can make running an election more challenging. Moving to consolidated polling places—in which several precincts vote at the same location—or moving to vote centers—in which any voter from a jurisdiction can vote at any polling place, usually a larger facility—can reduce the total number of poll workers required.
23. But precinct consolidation sometimes comes with dire consequences, including longer lines and longer distances to polling sites, which can have a negative effect on voter turnout, as reported below. The state needs to do what it can to mitigate poll worker shortages, such as removing the requirement that a majority of poll workers be residents of the local precinct.
24. Identifying new polling locations, whether as part of a process of consolidation or adding new locations (and reassigning voters) takes time, resources, and expertise. For example, in California, the California Civic Engagement Project (CCEP) was engaged in 201720 to provide assistance to counties that sought to locate vote centers, which are required by the California Voters Choice Act21 for any county that moved to a universal absentee ballot delivery system, starting with the 2018 election. The CCEP developed a sophisticated
19 National Conference of State Legislature, 5/21/2020, “COVID-19 And Elections.” https://www.ncsl.org/research/elections-and-campaigns/state-action-on-covid-19-and-elections.aspx, accessed May 25, 2020. 20 Personal communication with Dr. Mindy Romero, June 2, 2020. 21 The Voters Choice Act was passed and signed into law in 2016. https://elections.cdn.sos.ca.gov/vca/sb450chaptered-legislation.pdf
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methodology22 to optimally locate vote centers and mail-ballot drop boxes. 25. A failure to locate polling places and voting centers that are convenient and accessible can discourage some citizens from voting. The 2018 Current Population Survey’s Voting and Registration Supplement asked a sample of U.S. citizens why they did not vote in the 2018 midterm election. The most common response of respondents (27%) was “too busy, conflicting schedule,” another 3.3% cited an “inconvenient polling place,” and 2.9% said they faced “transportation problems.” There are substantial differences in how these barriers impact subgroups of the voting population. As shown in Table 1, only 6% of the oldest voters (65 and older) said that “conflicting schedules” were a reason that they did not vote, compared to 35.4% of voters aged 25 to 44. Younger voters (18 to 24) were most impacted by an “inconvenient polling place,” over three times as much as the oldest voters.23 Other obstacles to voting that can reduce turnout are waiting in long lines to vote and less accessible voting locations that require longer travel distances and have limited parking. 24
22 https://ccepsitingtool.github.io/methodology.html 23 All data from the 2018 Current Population Survey, Voting and Registration Supplement, Table 10, https://www.census.gov/data/tables/time-series/demo/voting-and-registration/p20-583.html, accessed February 26, 2020. 24 Stein, Robert M, and Greg Vonnahme. 2008. “Engaging the Unengaged Voter: Vote Centers and Voter Turnout.” The Journal of Politics 70(02): 487–97.
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Table 1: Reasons for Not Voting, 2018 CPS

Too Busy,

Conflicting Transportation Inconvenient

Schedule

Problems Polling Place

Overall

26.9

2.9

3.3

18 to 24 years

31.0

1.1

4.3

25 to 44 years

35.4

2.0

3.5

45 to 64 years

25.3

3.1

3.7

65 years and over

6.0

6.3

1.2

26. Research also shows that greater distance between voters and polling places, which can result from precinct consolidation, can negatively impact voter turnout. In a study of three Maryland counties, Gimpel and Schuknecht (2003), looked at the impact of distance and of other impediments (such as speed limits, traffic congestion, or topographical barriers) that stand in the way of getting from point A to point B on turnout in the 2000 presidential election. They found that the geographic accessibility of polling places has a significant and independent effect on the likelihood that individuals will vote: “even after controlling for variables that account for the motivation, information and resource levels of local precinct populations, we find that accessibility does make a significant difference to turnout.”25 Haspel and Knotts (2005) followed a similar approach to Gimpel and Schuckecht, and studied whether the distance from an individual voter’s residence to a polling location affected turnout in the 2001 Atlanta mayoral election. Haspel and Knotts report that voting is sensitive to distance to the polling place, particularly for citizens who
25 Gimpel, J G, and J E Schuknecht. 2003. “Political Participation and the Accessibility of the Ballot Box.” Political Geography 22(5): 471–88.
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do not have access to a car. They find “small differences in distance from the polls can have a significant impact on voter turnout.” 26 They report that a change from the minimum distance of .01 mile to the median distance of .69 of a mile results in a 25% drop in the probability of voting among those without access to a vehicle. For voters with access to cars, the effect is smaller but still significant – a drop of 5% in the probability of voting. (2005, p. 568)
27. Brady and McNulty studied precinct consolidation in Los Angeles County in 2003 and confirm these past findings about distance and the negative impact on turnout: “[t]he change in polling place location has two effects: a transportation effect resulting from the change in distance to the polling place and a search effect resulting from the information required to find a new polling place”. 27 Brady and McNulty find that an increase of just .4 miles in the distance to polling places reduce the probability of polling place voting by 4% (p. 124).
28. The uniform hours requirement for early in-person voting locations that is currently in place in North Carolina will only make it more difficult for election administrators to operate the additional in-person voting locations needed to meet voter demand. The standard hours law removes the ability of local boards to open any early voting location for fewer than 12 hours on weekday and removes the ability of local boards to open any early voting location on some, but not all, weekdays during the early voting period. The impact of the law is to increase the costs of operating each additional early voting location, compared to what additional locations would cost to operate in prior
26 Haspel, Moshe, and H Gibbs Knotts. 2005. “Location, Location, Location: Precinct Placement and the Costs of Voting.” Journal of Politics 67(2): 560–73. 27 Pg. 116 of Brady, Henry E., and John E. McNulty. 2011. “Turning Out to Vote: The Costs of Finding and Getting to the Polling Place.” American Political Science Review 105(01): 115–34.
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elections, when such restrictions were not in place. In prior years, a local board may judge that shorter operating hours and days in some locations were sufficient to serve the voters in their county. Under the uniform hours law, county boards have little flexibility if they wish to open additional locations. The consequence is that many counties chose to reduce the number of in-person locations for early voting, increased the distance that many voters had to travel, and in all likelihood, increased lines and reduced turnout. 29. A comparison of the 2014 midterm election and 2018 midterm election in North Carolina (the first general election under the standard hours requirement) shows that counties decreased access to early voting in several significant ways. First, 42 counties reduced the number of satellite early voting locations in 2018 compared to 2014, and only 9 counties increased the number of early voting locations. Second, more counties chose not to offer any satellite early voting sites at all and instead conducted all early voting at the county board of elections office. In 2014, 77 of 100 North Carolina counties offered more than the mandated single early voting location. In 2018, a higher turnout election, only 65 of 100 counties offered more than the mandated single early voting location. Third, counties reduced access to early voting on the weekend; 47 counties reduced the number of weekend days in comparison to 2014 and 65 counties reduced total weekend voting hours. These reductions occurred even though there were more weekend days available for counties to use for early voting in 2018 than in 2014.28
30. Finally, election administrators will need to staff polling places with
28 Calculations made by the author, based on One-Stop Voting Sites for the 2018 and 2014 elections, downloaded from the North Carolina Board of Elections FTP site, https://dl.ncsbe.gov/?prefix=One-Stop_Early_Voting/.
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temporary poll workers. Poll workers require legal and procedural training, and poorly trained poll workers can negatively impact the trust and confidence that voters have in election outcomes.29
31. During the 2016 election, the Election Assistance Commission (EAC) reported that 917,694 poll workers were needed nationwide. Nearly 65% of jurisdictions reported that it was either “very difficult” or “somewhat difficult” to obtain sufficient poll workers. The poll worker population skews toward older Americans – of the jurisdictions that reported to the EAC, 54% of poll workers were older than 60, and 58.3% of North Carolina’s poll workers were over 60, 24% of poll workers nationwide and 23.1% of North Carolina poll workers were over 70.30 Between one-quarter and half of the poll worker workforce are squarely in a high-risk category for risk from COVID-19 solely due to age, according to the Centers for Disease Control and Prevention, 31 and many of these individuals have expressed an unwillingness to serve as a poll worker under current conditions.32
32. Karen Brinson Bell, The Executive Director of the North Carolina Board of Elections, wrote on April 22, 2020 that the procurement process for supplies and training materials needed to have begun
29 Bridgett A. King, 2019, “Descriptive Representation in Election Administration: Poll Workers and Voter Confidence.” Election Law Journal 18(1): 16-30; Thad Hall, J. Quin Monson, and Kelly D. Patterson, 2007, “Poll workers and the vitality of democracy: An early assessment.” PS: Political Science and Politics. 40(4): 647-654. 30 Election Assistance Commission, November 15, 2017, “EAVS Deep Dive: Poll Workers and Polling Places.” https://www.eac.gov/documents/2017/11/15/eavs-deep-dive-poll-workers-and-polling-places. Accessed May 25, 2020. 31 Centers for Disease Control and Prevention, “People Who Are At Higher Risk for Severe Illness.” https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. Accessed June 1, 2020. 32 Amy Gardner and Elise Viebeck. March 15, 2020. “Intensifying coronavirus fears rattle voters and elections officials in advance of Tuesday primary.” Washington Post. https://www.washingtonpost.com/politics/intensifyingcoronavirus-fears-rattle-voters-and-elections-officials-in-advance-of-tuesday-primaries/2020/03/15/426c876266d3-11ea-abef-020f086a3fab_story.html. Accessed May 26, 2020.
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immediately, and that many of the orders for preparing November general election materials need to be finalized by June 15.33 This accords with deadlines identified by the Brennan Center for Justice on May 11, 2020, which stated that critical purchasing and planning decisions for a safe November elections needed to be made “in a matter of weeks.”34
33. In addition to precinct consolidation, in light of SB 683’s prohibitions on assistance,35 many voters who would like to vote by mail in order to protect themselves from infection from Covid-19 may be forced to vote in-person, thus further increasing the need for adequate numbers of in-person voting sites.
34. In summary, COVID-19 will require North Carolina election administrators to prepare for safe in-person voting in November. Existing polling places will require sanitizing measures and other protections. Administrators will need to either identify additional polling locations or select new locations to consolidate precincts. Local administrators will need to search more broadly for poll workers among younger segments of the population. These adjustments will take time, planning, and resources.
B. Voting By Mail
35. The Executive Director of the North Carolina Board of Elections projects a seven- to ten-fold increase in demand for vote by mail ballots in the state as a result of the COVID-19 pandemic.36 The
33 Letter from Executive Director Karen Brinson Bell, NC State Board of Elections, to Governor Roy Cooper and the General Assembly, dated April 22, 2020, provided to this expert. 34 Edgardo Cortes et al., May 11, 2020, “Preparing for Election Day: Deadlines for Running a Safe Election.” Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/preparing-election-daydeadlines-running-safe-election. Accessed June 2, 2020. 35 N.C.G.S. 163-230.2 36 Letter from Executive Director Karen Brinson Bell, NC State Board of Elections, to Governor Roy Cooper and the General Assembly, dated April 22, 2020, provided to this expert.
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current election system as configured is unable to handle a dramatic increase in the demand for mail ballots. Steps that need to be taken include securing vendor relationships to print sufficient numbers of ballots, envelopes, and other materials; coordinating with local United States Postal Service operations to assure secure delivery and return of election materials; providing accessible options for voters who require assistive technology; obtaining ballot processing, sorting, and verification equipment; and developing and training appropriate staff in signature verification and other ballot handling procedures. Secure and accessible ballot drop off locations need to be identified.37
36. Optimally, according to the National Vote at Home Institute, steps needed to implement and expand mail voting options should have begun in April to prepare for the November 2020 election.38 Many other legal and administrative decisions ideally would be made in June, 2020, according to the Election Assistance Commission’s Vote by Mail Project Timeline.39
37. One point of law that will further overextend the North Carolina Board of Election’s capacity to deal with an increased inflow of absentee ballots is the lack of any curing process for rejected absentee ballots.40 Providing an option for voters to “cure” a ballot that arrives with a missing or unverifiable signature is recommended as a best practice by the Cybersecurity and Infrastructure Security Agency (CISA) Elections Infrastructure Government Coordinating Council’s Joint
37 Election Assistance Commission. “Voting by Mail / Absentee Voting.” https://www.eac.gov/electionofficials/voting-by-mail-absentee-voting. Accessed May 25, 2020. 38 Vote At Home Institute, March 2020, “Vote at home scale plan.” https://www.voteathome.org/wpcontent/uploads/2020/03/VAHScale_StrategyPlan.pdf, accessed May 25, 2020. 39 Election Assistance Commission, “Vote by Mail / Absentee Voting Timeline.” https://www.eac.gov/sites/default/files/electionofficials/vbm/VBMProjectTimeline.pdf. Accessed May 25, 2020. 40 See Figure 5 for information on the percentage of ballots North Carolina rejected from 2014-2018
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COVID Working Group 41 and the Center for Civic Design. 42 Escambia County, Florida reported a 70% drop in rejected ballots in the 2016 election, compared to the 2012 election, after a cure process was put in place for missing signatures.43 If county boards have to resend absentee ballots to voters who incorrectly executed their absentee ballots, it will add more pressure on the county board’s ability to efficiently and effectively execute a robust vote-by-mail program.
38. Finally, it remains unclear how it is possible to honor the two-witness requirement in North Carolina given the requirements for social distancing. Only 12 states currently have a witness requirement, and only three have a two-witness requirement.44 Two of those twelve states—Virginia and South Carolina—have changed their witness requirements for casting an absentee ballot in the June Primary, in light of Covid-19.45
C. Evidence From Administering Recent Elections
39. At the time of the submission of this report, sixteen states have chosen to postpone scheduled primaries or caucuses or have chosen to conduct an all-mail primary in response to the pandemic.46 The recent
41 CISA #PROTECT2020 Resource page is available at https://www.cisa.gov/protect2020, and the document recommending signature curing is https://www.eac.gov/sites/default/files/electionofficials/vbm/Signature_Verification_Cure_Process.pdf. 42 Center for Civic Design, “Voting from Home: Scaling Up in 2020.” https://civicdesign.org/wpcontent/uploads/2020/04/CCD-Guide-to-mail-voting-4-10.pdf. Accessed June 3, 2020. 43 Center for Civic Design, “Counting more absentee ballots in Escambia County, Florida.” https://civicdesign.org/showcase/counting-more-absentee-ballots-in-escambia-county-florida/. Accessed June 3, 2020. 44 National Conference of State Legislatures, 1/21/2020, “Verification of Absentee Ballots,” https://www.ncsl.org/research/elections-and-campaigns/verification-of-absentee-ballots.aspx. Accessed June 2, 2020. 45Absentee Ballot Requirements, Virginia State Board of Elections, https://www.elections.virginia.gov/casting-aballot/absentee-voting/. Accessed June 2, 2020; Thomas v. Andino, --- F.Supp.3d ---- (D.S.C. 2020). 46 Nick Corasaniti and Stephanie Saul, May 22, 2020, “16 states have postponed primaries during the pandemic. Here’s the list.” New York Times. https://www.nytimes.com/article/2020-campaign-primary-calendarcoronavirus.html Accessed May 22, 2020.
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experience of one state, Wisconsin, provides predictive evidence of how COVID-19 will impact North Carolina in November 2020, and the appropriate actions that the state will need to make to administer a safe, secure, and accessible election. Like North Carolina, Wisconsin is a “mostly polling place” state, with less than five percent of its ballots cast by mail in 2018, even though the state requires no excuse for casting an absentee ballot.
40. Wisconsin chose to hold an in-person primary on April 7, 2020. Wisconsin is the best available example of the kinds of adjustments that election administrators will have to make to prepare for in-person voting during the pandemic, and how a short timeline and limited resources may create long lines and restrict access to the polls.
41. The Wisconsin Elections Commission (WEC) recognized the challenges the pandemic posed to the primary. In a March 18, 2020, update to the WEC47, the commission’s administrator reported:
“The lack of available hand sanitizer and other sanitation products has emerged as one of the key concerns of clerks and election inspectors, a large percentage of whom are in the age range of higher vulnerability.”
“Commission staff has advised clerks to implement any contingency plan they have regarding alternative polling locations in case of an emergency. When considering alternatives, clerks should attempt to find locations that are accessible to individuals with disabilities and large enough to serve their community while practicing as much social distancing as possible.” 42. The impact of these challenges on in-person voting became evident during early in-person and Election Day voting.
47 Meagan Wolfe, March 18, 2020, “Update Regarding COVID-19 Election Planning.” Memo written to the Wisconsin Election Commission. Accessed at https://elections.wi.gov/sites/elections.wi.gov/files/202003/Com_.%20memo%20re%20COVID-19%20Election%20Planning%203.18.20.pdf
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43. The first impact of COVID-19 in the Wisconsin primary was the reduction of sites for early in-person and Election Day voting. A number of local jurisdictions in Wisconsin were forced to severely limit or close all in-person early voting locations because of inadequate staffing and insufficient supplies of personal protective equipment for election workers and voters.48 The City of Milwaukee, which normally provides 180 Election Day polling locations, provided only 5 in the April 7, 2020, primary.
44. The reduction was highly uneven in the metropolitan area, as shown on the map in Figure 5.49 In wealthier, whiter suburban areas, there were limited reductions. But in the lower-income, heavily AfricanAmerican urban core, only five in-person locations were available on Election Day. Similarly, the City of Green Bay offered only 2 polling locations instead of the normal 31.
48 Laurel White, March 23, 2020, “Election Officials Across Wisconsin Eliminate, Scale Back In-Person Early Voting.” Wisconsin Public Radio. https://www.wpr.org/election-officials-across-wisconsin-eliminate-scale-backperson-early-voting Accessed May 20, 2020. 49 Source: John A. Curiel, Research Scientist, MIT Elections Data and Science Lab. Healthy Elections Project data repository, https://github.com/MEDSL/healthy_elections/tree/master/WI, accessed May 25, 2020.
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Figure 5: Election Day Polling Locations in Milwaukee, WI in the 2016 and 2020 Presidential Primaries (City of Milwaukee boundaries colored in green; polling locations in red [suburban] and blue [city].)
45. On June 2, 2020, Pennsylvania had its primary and many counties and cities had to consolidate their polling places. Philadelphia cut its polling places by more than 60%, to 190 polling places, down from 831 polling places that they had in the November 2019 Municipal Election. 50 Many officials in the state describe encountered difficulties in finding alternative polling locations because of “restrictions on large public venues that have historically served as
50 Michael Tanenbaum, May 13, 2020, “Philly plans sharp reduction of polling places for June 2 primary election” Philly Voice. https://www.phillyvoice.com/philly-polling-places-primary-election-june-2-2020-poll-workers-mailin-absentee-ballot/. Accessed June 3, 2020.
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polling places, such as schools, libraries, and municipal buildings.”51
46. The second impact of COVID-19 was the increase in lines. As a consequence of the reduction of locations, there were excessively long lines at some of the remaining locations where reductions had occurred. Voters waited two to three hours to cast a ballot in Milwaukee, Green Bay, and in other locations.52
47. The third impact of COVID-19 was the increase in the number of absentee ballots requests by over 500 percent. There were 1,303,985 absentee ballots requested for the April 7, 2020 primary and 1,159,800 absentee ballots were returned and counted.53 It was a 5:1 ratio of mail-in to in-person absentee ballots. In the April 2016 primary, 247,052 absentee ballots were requested and 212,832 were returned and counted.54 The number of requests represented a 527% increase when compared to the April 2016 primary. The percentage of absentee ballots cast by mail in the 2016 primary was 8.1% of the total ballots cast, and the percentage of absentee ballots cast by mail in the 2020 primary was an unprecedented 61.8% of all ballots cast.55
48. It is important to note that even under the April 7, 2020, conditions of the pandemic, with an essentially uncontested presidential primary
51 Ivey De-Jesus. April 28, 2020. “As counties look to consolidate polling places, advocates worry about voter disenfranchisement.” Harrisburg Patriot-News / Penn-Live. https://www.pennlive.com/coronavirus/2020/04/ascounties-look-to-consolidate-polling-places-advocates-worry-about-voter-disenfranchisement.html Accessed May 20, 2020. 52 New York Times, April 7, 2020, “Wisconsin Primary Recap: Voters Forced To Choose Between Their Health and Their Civic Duty.” https://www.nytimes.com/2020/04/07/us/politics/wisconsin-primary-election.html Accessed May 20, 2020. 53 Wisconsin Elections Commission, Absentee Ballot Report. May 15, 2020. “April 7, 2020 Absentee Voting Report.”. https://elections.wi.gov/sites/elections.wi.gov/files/202005/April%202020%20Absentee%20Voting%20Report.pdf 54 2016 totals calculated by the author from the Wisconsin Board of Elections “2016 Presidential Preference and Spring Election GAB-190F: Election Voting and Registration Statistics Report”, downloaded from https://elections.wi.gov/publications/statistics/gab-190/2016-spring-election-presidential-primary 55 Wisconsin Elections Commission, Pg. 6, https://elections.wi.gov/sites/elections.wi.gov/files/202005/April%202020%20Absentee%20Voting%20Report.pdf
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and a competitive State Supreme Court race, over 25% of Wisconsin voters chose to vote in person on Election Day and 12.6% chose to cast an in-person absentee ballot, as shown in Figure 6. 56 Even with a pandemic in full force, over 37% of Wisconsin’s voters still opted to cast an in-person ballot. This provides predictive evidence that a substantial portion of North Carolina’s voters will want to cast an inperson ballot in the November 3, 2020 general election given the similarities between the two states and the number of people who vote in-person.
Figure 6: Comparison of Voting Methods in Wisconsin, April 2016April 2020
56 Wisconsin Elections Commission, May 15, 2020. “April 7, 2020 Absentee Voting Report #3.”, pg. 6, https://elections.wi.gov/sites/elections.wi.gov/files/2020-05/April%202020%20Absentee%20Voting%20Report.pdf
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49. Elections officials in Florida,57 Ohio,58 South Carolina,59 and multiple
other states have reported difficulties finding sufficient poll workers,
having poll workers drop out, and facing other challenges in preparing to conduct elections during the pandemic.60 Several thousand absentee ballots never made it to Wisconsin voters.61 Other states have had the same experience. During the April 28th primary in Ohio, one estimate
is that “thousands” of Ohioans never got their ballots by the April 28th deadline.62 The June 2nd primary in the District of Columbia resulted
in long lines due to a reduction in polling places. One-third of those
voters who were interviewed said they had to vote in-person because their absentee ballots did not arrive in time.63
50. The experiences of Wisconsin, Pennsylvania, and other states provide
evidence that North Carolina will want to prepare as soon as possible
and provide flexibility in selecting alternative voting locations and in
recruiting poll workers for the November. 3, 2020, election. The state
should also expand the options for requesting absentee ballots beyond
57 Andrew O’Reilly. March 12, 2020. “Coronavirus fears cause poll worker dropouts, safety concerns ahead of Florida primary”. Fox News. https://www.foxnews.com/politics/coronavirus-poll-worker-florida Accessed May 25, 2020. 58 Julia Harte, March 13, 2020, “Exclusive: Fewer poll workers, coronavirus, spark fears of election day woes in Ohio Democratic primary”, Reuters, https://www.reuters.com/article/us-usa-election-ohio-exclusive/exclusivefewer-poll-workers-coronavirus-spark-fears-of-election-day-woes-in-ohio-democratic-primary-idUSKBN210328. Accessed May 26, 2020. 59 Bristow Marchant, April 29, 2020, “Richland County is losing hundreds of June primary poll workers to coronavirus fears,” The State https://www.thestate.com/news/politics-government/election/article242381961.html 60 Pam Fessler, March 2, 2020, “Coronavirus and Super Tuesday Voting: It’s Touchy.” National Public Radio, https://www.npr.org/2020/03/02/811323562/coronavirus-and-super-tuesday-voting-its-touchy, Accessed May 26, 2020. 61 Nick Corasaniti and Stephanie Saul, April 9, 2020, “Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots.” New York Times https://www.nytimes.com/2020/04/09/us/politics/wisconsin-election-absenteecoronavirus.html. Accessed June 2, 2020. 62 Darrel Rowland and Rick Rouan. April 28, 2020. “After a problem-plagued primary, Ohio leaders disagree about a November election plan.” Columbus Dispatch. https://www.dispatch.com/news/20200428/after-problem-plaguedprimary-ohio-leaders-disagree-about-november-election-plan. Accessed June 3, 2020. 63 Julie Sauzmer and Genir Nirappit. June 3, 2020. “Bowser ally Brandon Todd loses D.C. Council primary to leftleaning challenger; Evans far behind in Ward 2 race.” Washington Post. https://www.washingtonpost.com/local/dcpolitics/tuesday-is-election-day-in-dc-though-much-of-the-voting-has-already-happened/2020/06/01/f9738568a437-11ea-b619-3f9133bbb482_story.html. Accessed June 3, 2020.
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a mail-only option in order to reduce pressure on early in-person and Election Day polling places. Additionally, the uniform hours requirement for early in-person satellite locations should also be lifted so as to provide more flexibility for county boards in securing locations and offering early voting options to their residents. Additionally, the state should relax the requirement that a majority of poll workers live in a precinct so as to expand the recruitment pool. III. The Impact of the COVID-19 Pandemic On North Carolina’s 2020 General Election A. The Pandemic’s Effect on Voter Preferences 51. The pandemic will likely cause a substantial increase in voting by mail in North Carolina. At the same time, due to historical voting patterns within the State, a significant number of North Carolina voters will continue to vote in person. 52. An April 2020 poll conducted by the Pew Research Center reported that two-thirds of Americans expect some disruption of the November 2020 election due to the pandemic. Seventy percent of the respondents favor allowing any voter to vote by mail if the voters wants to.64 53. A May 2020 national poll conducted by a university consortium found that 60% of respondents supported making voting by mail easier, and 36% said that they would be more likely to vote if they had the option to vote by mail. However, 44% of respondents under 25 said they were not confident that they understood the process of voting by mail, and 40% of respondents aged 25 to 44 also said they were not confident
64 Carroll Doherty, Jocelyn Kiley, and Nida Ascher. April, 2020. “Two-Thirds of Americans Expect Presidential Election Will Be Disrupted by COVID-19.” Report of the Pew Research Center, Washington DC. https://www.people-press.org/2020/04/28/two-thirds-of-americans-expect-presidential-election-will-be-disruptedby-covid-19/.
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about the mail voting process. 65 This survey also indicates that a significant number of respondents will vote as they always have, using the in-person method.
54. Evidence from the Wisconsin primary and other recent primaries shows that while there is likely to be a dramatic surge in requests for absentee ballots in November, particularly in a state like North Carolina that does not require an excuse. But, there will also be substantial numbers of voters who will continue to want to cast a ballot in-person, either early or on Election Day.
55. As noted above, because of the increase in the number of absentee ballot requests in Wisconsin, many voters never received their absentee ballots by election day despite timely requesting them.66 Absentee ballots arriving late, or not arriving at all, had been an issue for UOCAVA voters for many years, as the Pew Center on the States documented in the “No Time To Vote” report, and the Federal WriteIn Ballot67 serves as a fail-safe option for these voters.68 The Federal Write-In Ballot is already familiar to election officials. Therefore, it will be important for North Carolina to offer a fail-safe option for voting such as the Federal Write-In Ballot if the State’s capacity to execute a more robust mail-in voting program falters.
56. Research shows that voters habituate to a particular way of voting due to “behavioral repetition.” 69 Even though convenience voting
65 Covidstates.org. May 22, 2020, “The State of the Nation: A 50-State COVID-19 Survey: Report 3 .” 66 Carrie Levine, Ohio’s Mail-in Ballot Brouhaha: A Sign of Coming Trouble? The Ctr. For Public Integrity (Apr. 28, 2020), https://publicintegrity.org/politics/elections/ohios-mail-in-ballot-brouhaha-a-sign-of-coming-trouble/ (mentioning Wisconsin’s absentee voting issues) 67 52 U.S.C. § 20303 68 Pew Center on the State, January 2009, “No Time To Vote: Challenges Facing America’s Overseas Military Voters.” Washington, DC: Pew Center on the States. 69 John Aldrich et al, 2011, “Turnout as a habit,” Political Behavior 33: 535-563.
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methods (early in-person, no-excuse absentee) have expanded across the country, millions of citizens continue to vote on Election Day due to this habituation.70 As shown in Figure 4 above, approximately half of North Carolina voters continued to vote on Election Day in 2018.
B. Challenges in Ensuring a Safe Election in North Carolina
57. Seven county boards in North Carolina have already obtained approval for precinct consolidations for the June 23, 2020, primary and one additional county request is pending. Consolidations were requested because locations that were previously used are now inaccessible; in order to assure sufficient space for social distancing; in order to assure poll worker safety; and to adjust to the lower demand for Election Day voting. Forty-six polling places have been eliminated through consolidation, and another 18 are pending elimination. 71 Counties will need to begin this process as soon as possible so that voters understand their newly assigned polling places. If this process is not started early enough, as shown in prior research, consolidation can adversely impact some voters and lower voter turnout.
58. County boards will also need sufficient time to be able to recruit poll workers. Statewide, as shown in Figure 7, 58.3% of poll workers in North Carolina in the 2016 election were over 61, with substantial variation across counties. 23.1% of poll workers were 71 or older in the state, as shown in Figure 8. The experience of other states conducting primaries indicates that a substantial number of these
70 Brian Amos, Daniel Smith, and Casey Ste. Claire.2016. “Reprecincting and Voting Behavior.” Political Behavior 39: 133-156. 71 The counties are Buncombe, Jackson, Macon, Madison, Mitchell, Transylvania, and Yancey. Haywood County request is pending as the time of this writing. Source: NC Board of Elections, https://dl.ncsbe.gov/index.html?prefix=Public_Records_Requests/June%2023%20Second%20Primary_temporary_p recinct_transfers
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workers may decline to work on Election Day.
Figure 7: Poll workers Over 61 in North Carolina in 2016.
Figure 8: Poll workers over 71 in North Carolina in 2016 59. Recruitment of replacement workers will be difficult across the state,
but particularly in counties that fall on the left hand side of Figure 7 and Figure 8 because of the requirement that a majority of the poll
32
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workers resides in the precinct where they wish to serve. 72 North Carolina is one of only eleven states that place precinct residency restrictions on poll workers, and six of the eleven states that retain these restrictions conduct elections at the township or municipality level.73 Only five states that conduct elections at the county level, like North Carolina, place precinct residency restrictions on poll workers.74
60. Recommendations County boards should immediately identify sufficient in-person voting locations for early voting and precinct place voting, and require this information publicly at the earliest possible instance. The uniform hours requirement for satellite early in-person voting locations should also be suspended, so that County Boards can provide more in-person voting locations. The requirement that a majority of Election Day poll workers reside within an election precinct is also unnecessarily burdensome and is a requirement in very few states. If were relaxed, it will allow County boards more latitude to recruit sufficient Election Day poll workers to staff precinct place voting locations. Additionally, the state should allow for electronic requests of absentee ballots, suspend the requirement for two witness signatures on the returned ballot materials, and develop a fail-safe absentee voting method or allow all eligible voters to use the Federal Write-In Absentee Ballot, as a way to meet the demand for by-mail balloting and accommodate those citizens who feel unsafe at in-person voting. Finally, each county board should have sufficient time and resources to implement
72 Source: North Carolina Board of Elections https://www.ncsbe.gov/get-involved and NC Revised Statutes 163-41. 73 John Aldrich et al, 2011, “Turnout as a habit,” Political Behavior 33: 535-563. 74 Totals were calculated by the author from the Federal Election Assistance Commission, May 2016, “State by State Compendium: Election Worker Laws and Statutes.” https://www.eac.gov/sites/default/files/eac_assets/1/28/Compendium.2016.pdf, accessed June 2, 2020.
33
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these changes.
VI. Conclusion
61. The COVID-19 pandemic has impacted nearly every aspect of American life, and elections are no exception. Elections and election administration are, in fact, traditionally a high-touch, face-to-face process. Even with the increased adoption of convenience voting methods by the states, millions of Americans continue to opt to vote in person on Election Day. Numerous expert commissions recommend that states prepare for a dramatic increase in mail voting in November 2020, but also maintain sufficient access to in-person voting.
62. My expert evaluation of the evidence is that North Carolina is likely to experience a substantial increase in the use of mail balloting in the November 3, 2020, election, but the state’s election administration system is currently designed around in-person voting and citizens are habituated to that method. Many will continue to vote in person in November.
63. County boards must begin to prepare immediately to assure a safe, secure, and accessible election. Early in-person voting should be maintained and where possible increased, by suspending the uniform hours requirement. Precinct consolidations, if necessary, must be done with care, using the best tools available to assure that consolidation is done fairly and equitably, without respect to age, race, income, disability, or other status. Consolidations must be completed and announced in enough time so that election officials, candidates, political parties, and other organizations can communicate this information to voters.
64. County boards should not be constrained to precinct residents when
34
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recruiting poll workers during this election. The typical poll worker is over 60 years old, with nearly a quarter over 70. In a number of counties, more an three-quarters of their poll workers were over 61 in 2016. Artificial barriers to poll worker recruitment should be removed for this election.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 4th day of June, 2020.
Dr. Paul Gronke
35
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Case 1:20-cv-00457-WO-JLW Document 12-2 Filed 06/05/20 Page 49 of 49

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF GARY BARTLETT IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

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I, Gary Bartlett, hereby declare as follows: 1. I am a U.S. citizen and a resident of Wayne County, North Carolina. I am
currently an independent consultant based out of Goldsboro, North Carolina and President and CEO of the Elections Administration Resource Center 501(c)(3) d/b/a Ranked Choice Voting Resource Center. I am a 1976 graduate of University of North Carolina at Chapel Hill, having earned a B.A. in history. Relevant Background 2. From 1993 to May 15, 2013, I served as the Executive Director of the North Carolina State Board of Elections. 3. My responsibilities as Executive Director of the State Board of Elections were designated in Chapter 163 of the North Carolina General Statutes. In this role, I was responsible for staffing, administering, and executing the State Board of Election’s decisions and orders, as well as other responsibilities assigned to me by the State Board, and was the chief State elections official in North Carolina. My responsibilities also included overseeing North Carolina’s 100 county election boards to ensure that they correctly managed all primary and general elections on a state, county, and local levels. All officials involved in election procedure inside North Carolina either directly or indirectly reported to me. 4. During my tenure as Executive Director, I oversaw dramatic changes in North Carolina’s voting practices. These included (i) bringing North Carolina into compliance with the National Voter Registration Act of 1993, including implementing agency voter registration and management systems; (ii) the
2
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initiation in 2000 of early voting options; (iii) the expansion in 2001 of absentee ballots to all voters without requiring a qualifying excuse; (iv) offering a system that allowed voters to check their registration status online prior to an election; and (v) allowing for same-day registration during early voting starting in 2007. I was also personally involved with ensuring disabled voters had the means to cast their ballots, both with absentee voting procedures and ensuring that polling places would be handicap-accessible if at all possible. Also, with the assistance of staff, I developed and implemented an election certification program to train and educate election officials. Innovations I implemented during my tenure include a procedure and policy manual that covered every part of election duties and responsibilities, an on-line elections library, and a self-audit program for counties to ensure compliance and that they were staying up-to-date. 5. North Carolina’s voter turnout increased dramatically under my leadership. Shortly after the beginning of my tenure, in 1996, North Carolina ranked almost last (fortieth) of all states.1 By the end, in 2012, North Carolina ranked twelfth nationally in voter turnout.2
1 See Voter Registration and Turnout – 1996, United States Election Assistance Commission, https://www.eac.gov/sites/default/files/eac_assets/1/6/1996%20Voter%20Registration%2 0and%20Turnout%20by%20State.pdf. 2 See The 2012 Election Administration and Voting Survey at p. 9, United States Election Assistance Commission, https://www.eac.gov/sites/default/files/eac_assets/1/28/990050_EAC_VoterSurvey_508Compliant_1.pdf
3
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6. During my tenure as Executive Director of the State Board of Elections, I was an active member in the National Association of State Election Directors (better known as NASED). I am a former board member of the Election Center, which is an association of election officials from across the United States and some areas of Canada that get together to help resolve election issues, provide educational opportunities and explore new or better ways of how to administer elections. I have also been involved with the National Task Force on Election Reform, and was the national co-chair for four years of the National Task Force on Elections Accessibility. I also served on the Federal Elections Commission Advisory Panel and the Standards Board of the United States Election Assistance Commission.
7. Before serving as Executive Director, I served as a legislative assistant to N.C. Congressman H. Martin Lancaster. I have appended my full CV as Exhibit 1 to this Declaration.
8. I have served as an expert witness in Gilbert v. Guilford County, Case No. 13 CVS 3227 (Guilford Cty. Super. Ct), Third Sector Development, Inc. v. Kemp, Civil Action No. 2014CV252546 (GA Super. Ct), and Ga. State Conf. of the NAACP v. Georgia, No. 1:17-cv-1427 (N.D. Ga.). I will be paid a fee of $2,500 for preparing this report, with additional compensation should my testimony be required in this case.
9. During my tenure as Executive Director, I also oversaw the administration of elections notwithstanding challenges presented by natural disasters in North
4
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Carolina, including Hurricane Floyd in 1999, Tropical Storm Gustav in 2002, a tornado knocking out power at a polling place in Brunswick County, a freak ice storming causing a special election in Harnett County Township to stop and be rescheduled. In addition to rescheduling elections due to flooding caused by Hurricane Floyd in Lenoir and Edgecombe Counties, my office facilitated voter participation by many displaced voters in Edgecombe County, whose homes were destroyed. The State Board of Elections joined in a Consent Decree with the U.S. Department Justice to allow those voters to vote in polling place corresponding to their residence before the flood in the next general election so they would not be disenfranchised by residency laws. 10.Other non-natural disasters occurred during my tenure that impacted elections. Examples of these incidences include bomb threats, a voter tragically killed by a car in front of polling after voting, a chemical truck wreck causing the poll to close and voters be redirected, and state authorities closing the only road to a polling place to repave on election day. 11.In my view, these natural and non-natural disasters pale in comparison to the challenges to elections presented by the Covid-19 virus pandemic. 12.I have read Executive Director Karen Brinson Bell’s letters dated March 26, 2020, and April 22, 2020, to Governor Roy Cooper and the General Assembly Leadership recommending how to “address election-related issues affected by
5
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COVID-19.”3 I generally concur with her requests and find them well thought out and practicable. I believe that the State Board of Elections and the county boards of elections will perform their duties to the best of their abilities with the aim of achieving a fair and successful general election in November, but that they will only be able to achieve this result if they are able to implement changes to the current North Carolina election code and the election administration that are needed in the interest of safety, efficiencies, fairness. Many changes are needed. North Carolina’s Voter Registration During COVID-19 13.As we experience the unknowns, trials, and tribulations of the novel coronavirus pandemic, it is important that we reevaluate how citizens can register and safely, easily, and securely cast their votes in the upcoming elections. Our worst of times can bring out our best: Working together, building trust, exploring innovations and establishing federal, state and local partnerships to ensure that all eligible voters can exercise their right to vote. 14.Federal and state laws provide many opportunities in registering to vote. During my tenure, the most popular and traditional ways were North Carolina Driver License Offices (DMV), Public Service Agencies, Employment Security Commission, at the County Board of Elections office, and the do-it-yourself mail-in form. Before a general election, especially a presidential election year,
3 I understand these letters have been filed as Exhibits 1 and 2 to the Complaint in this matter.
6
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voter registration drives are rich in tradition, effective, and generate enthusiasm leading into the election. They are carried out by, but not limited to, civic activists and organizations, political parties, partisans, candidate committees, and churches. 15.Certainly, COVID-19 has had a chilling effect on registering new voters and encouraging them to vote in the upcoming general election. I understand that while there was an increase of 162% in voter registrations in January 2020 compared to January 2016, by April there was a 50 percent decrease in voter registrations compared to April 2016. In my experience, this decline is very unusual for a presidential election year and reflects a lack of accessible options for eligible individuals to register to vote. 16.In my experience, given the challenges that the coronavirus pandemic is presenting to voter registration, the 25 day deadline before an election for voter registration should be extended through to the close of One-Stop Absentee Voting (Early Voting) to allow eligible individuals the opportunity to register to vote. Furthermore, the canvass period needs to be extended a month to ensure enough time for verification mailings, processing, inspection of the public, and challenges if necessary. 17.It is also crucial that North Carolina voters be given greater access to online voter registration during this time, when the classic in-person voter registration activities are no longer feasible due to the coronavirus pandemic. In my view, there is no justification for North Carolina’s failure to expand online voter
7
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registration to date. As early as 2007, the IT division at the State Board of Elections had an on-line voter registration system ready to test and roll out. However, this platform was never approved by the legislature. During the same time frame or shortly thereafter, we tried to get agency-based voter registration placed in the N.C. Department of Health and Human Services’ Families Accessing Services through Technology (“FAST”) program so voter registrations could be automated, but this was unsuccessful and voter registration and stayed paper-based. Ironically, the Employment Security Commission was totally automated, allowing individuals to enroll in certain services online, but voter registration remained paper-based. 18.It is my view that, given the current barriers to voter registration (and the resulting barrier to voting this will present), all agencies dealing with voter registration should offer on-line voter registration and digitized signatures should be allowed. More crucially, the State Board of Elections should offer this important, necessary service directly. COVID-19 Challenges to In-Person Voting 19.Changes are also needed to ensure that voters in North Carolina can safely vote in person. North Carolina has a culture of voting in-person, both during one-stop “early” voting and on Election Day. During my tenure as Executive Director, I tried to persuade the General Assembly and the Municipality of Bald Head Island to hold a pilot program for an all mail election. There were 101 registered voters on the island, and they all had to travel by ferry to their polling place in
8
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order to vote in person. Both the Village Council and the General Assembly strongly rejected the elimination of in-person voting, and I saw through this experience that traditions, such as in-person voting, are hard to change regardless of merit. 20.Even before COVID-19, early voting has been vital to facilitating in-person voting, and has allowed county boards of elections to reduce crowding and long lines. Until early voting was implemented in 2000, long lines were the norm in presidential elections, and wait time at the close of the polls with voters in line could run from one to four hours in our urban counties. However, North Carolina voters now love early voting, and it continues to be the most popular way to cast a ballot. 21.As Executive Director Bell mentions in her March 26, 2020 letter, there are two provisions of North Carolina’s election code that need to change in order to ensure North Carolina voters can vote safely in-person. First, the uniform hours requirement, requiring early voting sites to all have uniform hours within each county, will hurt more than it helps during the ongoing pandemic because this requirement generally causes closure of early voting sites. In short, uniform hours are not the best and most efficient way to process early voters because every county has varying hours of the day and night that voters choose to come to vote. For example, early voters in rural areas tend to vote in earlier hours, whereas counties with shift work and factories tend to vote later. Furthermore, night and weekend voting is essential, and is likely to only be possible if counties
9
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have the flexibility to choose varying hours for their precincts. In sum, the more early voting opportunities are available, the better and safer the general election will be. 22.The second important change that is required is to eliminate the requirement that a majority of poll workers come from the precinct they serve in. There are many reasons for this. For example, curbside voting will be very important this election, and it requires poll workers to facilitate this method of voting. The majority precinct poll worker requirement will strain the responsibilities poll workers have for processing voters in the polling place, including curbside voting. In some locations, workers might be needed for traffic control management as well. Labor is the most expensive and important part of the election process. The requirement that a majority of poll workers be from the precinct in which they are serving will put a strain on the crucial resource of labor, and will do so when curbside voting is likely to be more important and sought after than ever. 23.These changes are not merely needed to reduce inconveniences, they are critical to reducing crowding and long lines, and therefore to ensuring safe elections during the ongoing pandemic. It is important to remember that voters will not be the only individuals at voting sites: during early voting and Election Day, there will likely also be electioneers / campaigners and others who congregate at the 50 foot line from the polling place. If there are also long lines for voters, this
10
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could cause large crowds outside of polling sites even if social distancing is made possible within. The Need to Expand Access to Ballots By Mail In Light of COVID-19 24.In my experience, the ongoing pandemic requires that changes be made to absentee voting by mail in light of the need for many voters to social distance. As an initial matter, absentee applications and ballot requests by the voter or near relative should be accepted via phone, fax, email, text, and on-line as long as it can be traceable back to the voter. In my view, this change is a long time coming, and Executive Director Bell’s request for funding and developing of a public access portal for absentee management and transparency is necessary regardless of COVID-19. It is imperative, however, now. It is also important that these changes are implemented immediately because of the almost certain increased volume of voters wishing to vote by mail as well as other considerations, such as providing for secure storage and processing of absentee mail-in ballots, which are likely to impact every county. 25.Secure drop boxes for absentee ballot envelopes should be strategically placed for voter use. Oregon and other states have successfully implemented this service, and North Carolina could easily replicate the systems that work in these states. In short, in my view there is no reason for North Carolina to fail to provide secure drop boxes, especially given that they would not have to reinvent the wheel to do so.
11
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26.There is also a need to allow voters to remedy any issues with their absentee ballot request forms or absentee ballots. I am not aware of any uniform procedure in effect right for county boards of election to do so. During my time, and as a requirement for HAVA funding, the State Board had to define and publish, “Standards for Determining What Constitutes A Vote.” By unanimous vote of a bipartisan State Board of Elections, this was ordered and executed before the 2006 election. Under the guidance in this document, if there were essential missing pieces of information on the absentee ballot form (container envelope), the county board of elections had to make a good faith effort to contact the voter and resolve the issue(s). I am concerned that after my tenure as Executive Director, new county directors and board members have not been made aware of this guidance and, as a result, I am not aware of any uniform procedures for voters to cure their absentee ballots or request forms.
27.Without a robust and successful voter participation in mail absentee and early voting, it is likely that voters will either be prevented from voting entirely, or they will try to vote on Election day and that counties, especially those that exceed 5,000 voters in a precinct, will experience long lines as a result. Furthermore, long lines and crowding are not just unsafe during the ongoing pandemic, but in my experience I have found that long lines will cause some voters to come seeking to vote only to leave without casting a ballot. Although splitting these precincts is theoretically an option, such a move would require even more poll workers and would incur an increased level of expense. It would
12
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also cause possible confusion. In other words, this would be a last resort for preventing long lines. It would be much better to make absentee voting by mail easier and to allow for expanded opportunities for one-stop “early” voting. 28.In my view, the two-witness signature requirement, which I understand was enacted to prevent absentee ballot fraud, needs to be temporarily suspended or dropped in light of the importance of voting by mail to the upcoming general election. The challenges presented by the ongoing pandemic have rendered this requirement too high a burden on voters, and its enforcement will disenfranchise eligible voters who, for health and safety reasons, cannot obtain two witnesses to their absentee ballot. I am familiar with past illegal activities involving incidences of voter fraud, and in my experience I believe the voter’s signature or mark should be accepted and will be adequate for the upcoming general election to ensure a safe and secure election. Other measures, such as fining or incarcerating violators, would be much more effective in deterring voter fraud than imposing a blanket two-witness requirement, and these alternative measures moreover do not present the same barrier to voting that the two-witness requirement will. The Need To Prepare Now for The November 3, 2020 Election 29.I agree with Executive Director Bell’s assessment in her April 22, 2020 letter that immediate action is needed to meet deadlines associated with the upcoming general election. She is correct that any expansion of absentee ballot requests need to be made immediately because voters may also be trying to request
13
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absentee ballots for the November 3 election, and any change to the witness requirement needs to be reflected on the absentee ballot instructions and envelope. She is also correct that changes to the poll worker precinct requirement and uniform hours requirements need to happen soon so that county boards of elections can start recruiting poll workers and making decisions about voting sites. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best ofmy knowledge.
Executed this _2 day of June, 2020.
GaryB
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EXHIBIT 1

Gary O. Bartlett
209 Cashwell Drive, Goldsboro, NC 27534 H: (919) 735-3006 * C: (919) 705-3366 gobartlett@nc.rr.com

HIGHLIGHTS OF EXPERIENCE

• Managed state agency representing 100 counties, 500+ municipalities. • Supervised 152 staff and provided oversight to 750 county board members and staff and 25,000
election officials. • Managed a budget for planning and implementation that ranged from $5.7 to $6.4 million. • Managed federal grants equaling $84 million. • Extensively worked under Board leadership; effective implementing orders and assignments. • Provided oversight to education and training of election officials and certification programs. • Resolved time sensitive issues in a public forum. • Provided oversight to Investigations and Investigative Hearings. • Implemented laws, rules, policies and guidelines. • Served as agency legislative liaison.

WORK EXPERIENCE

Current 6/2013

General Consultant Hospice Volunteer for 3HC at Kitty Askins Hospice and Crystal Coast Hospice
Panelist for the Lawyers Committee For Civil Rights on “Crafting the Ideal Elections Administration System”, 50th Anniversary Legal Symposium, Georgetown University Law Center

8/3/1993 – 5/15/13 North Carolina State Board of Elections Executive Director
Responsible for staffing, administration, execution of decisions and orders and other responsibilities as assigned by the Board. Managed Agency’s divisions Administration, Campaign Finance and IT and Agency Legislative Liaison. See detailed summary.

Member of National Association of State Election Directors N.C. Representative - Standards Board of the Elections Assistance Commission Panelist on NVRA Section 7 Compliance, U.S. Commission on Civil Rights Member of the FEC Election Administration Advisory Panel Election Center Board of Directors (professional and elections national non-profit) Co-Chair National Task Force on Election Accessibility Member of Four Governors Better Campaigns Committee

Prior employment:

Legislative Assistant, Congressman H. Martin Lancaster Management, Weil Enterprises Consultant, Business Matters, Inc.

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Mason, Oz Bartlett, Inc.
North Carolina State Board of Elections, Executive Director Detailed Summary of Duties and Responsibilities
As Executive Director of the State Board of Elections, I have duties that involve large-scale oversight, others that are directly managerial and supervisory, and still others that are judicial or discretionary in nature.
Large-scale oversight
• Chief elections officer of the state; oversight for the State Board of the conduct of all primaries and elections throughout North Carolina.
• Ultimate supervisory responsibility for 100 directors of county boards of elections. • Oversight of 300 county board members, 350 county board staff employees, and 8,400 precinct
judges. • Responsibility for implementation of elections laws, including the National Voter Registration
Act, the Help America Vote Act, Chapter 163 of the North Carolina General Statutes, and the regulations of the State Board • Implementation of North Carolina’s first statewide computerized elections information system the (State Elections Information Management System) and four major revisions and oversight of its operation. • Management of registration of almost 7,000,000 voters. • Oversight of 800 non-elections agencies where voter registration is conducted • Implement state and federal laws by interpreting and formulating policies, procedures, rules, guidelines and management.
Managerial and supervisory
• Day-to-day direct supervision of the office of the State Board of Elections, with 52 employees; • Management of the drafting and editing of job descriptions and postings, performance or
oversight of employee reviews, and conduct of grievance, disciplinary and dismissal proceedings and mediations. • Development and administration of the budget of the agency. • Frequent newspaper, television and radio interviews.
Judicial or discretionary
• Execution of emergency powers as defined by statute if election schedule is disrupted. • Oversight of State Board hearings. • Presentations to General Assembly committees. • Issuance of campaign finance written opinions and mediation of penalties. • Oversight of investigations and investigative hearings.
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WORK EXPERIENCE PRIOR TO STATE ELECTIONS EXECUTIVE DIRECTOR
• January 1991 – July 1993, Congressman H. Martin Lancaster o Campaign Manager, Lancaster for Congress 1986, 1990, 1992;
• September 1983 – December 1990, Managing Agent,Weil Enterprises; • May 1976 – August 1983, Oz Bartlett, Inc.
o Part-time June 1969 – September 1970; June 1971 – May 1976; • September 1970 – May 1971, Gideon’s Jewelry Store.
HIGHLIGHTS OF EXPERIENCE AND QUALIFICATIONS
• Legislative Assistant, Congressman Lancaster: Monitored U.S. House Committees and constituent services related to: Small Business (Congressman was a member), Commerce, Utilities, Trade, House Administration and Post Office. In addition, assisted governments within the District, monitored redistricting and attended to political matters;
• Managing Agent, Weil Enterprises: oversight and management of rental properties and Section 8 Housing, Carolina Terminals (30% nitrogen storage and loading facility) and civic projects for the Chamber, Goldsboro and Wayne County; o Civic Projects: Guidance to ad hoc Goldsboro City School Citizen Group; The four bond referenda for Wayne Community College, Wayne County Schools, Courthouse and Economic Development in late 1980’s; City of Goldsboro Mixed Beverage Referendum;
• Mason and Laborer, Oz Bartlett, Inc.: Began as part-time through high school and college; full-time upon graduation;
• Engraver, Gideon’s Jewelry Store – Part-time.
Efficiency and Innovation During My Time at the North Carolina State Board of Elections
I was determined to improve the efficiency of elections administration in our state and to be innovative. With the help of a great number of terrific people, I was successful.
Efficiency
• We instituted one of the most thorough ballot proofing processes in the nation.
• We put in place one of the most comprehensive and cost-effective voter registration systems in the nation.
• We were a leader among states in developing uniform standards (forms, letters, notices, etc.) for election jurisdictions.
• Our office was the first state elections agency in the nation to implement technology (through bar code scanners) to ensure that voters receive the proper ballots.
• North Carolina was the first southern state (and one of first states nationally) to implement the requirements of the National Voter Registration Act of 1992.
• North Carolina is recognized nationally as a model for states to follow in managing voter registration at non-elections offices such as the DMV or social services offices.
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Innovation • We implemented one of the nation’s first certification programs for elections officials. • We put in place a unique system of regional technicians to ensure proper maintenance and use of elections equipment, even in counties with modest resources. • We are recognized as having an outstanding elections night return system. • We conducted the first statewide election in the era of modern voting machines using the instant runoff voting method, an achievement requiring significant creativity. • Our voter accessibility program is a national model. • We were among the very first states to offer voters the ability to check their registration, voting record, and provisional voting status on-line. • Ours was the first and is still the only state election office to conduct wellness checks of its county election offices to ensure compliance and uniformity.
PUBLICATIONS
Gary O. Bartlett and Robert P. Joyce, “Would North Carolina Have Looked as Bad as Florida on Election Night 2000?” Popular Government, Institute of Government, University of North Carolina at Chapel Hill, Chapel Hill, N.C. (Fall 2002).
Gary Bartlett, Health & Human Services Accessibility - HAVA Grants in North Carolina, January 2010, available at https://www.ncsbe.gov/Portals/0/FilesP/HAVAAccessibilityNASED.pdf.
Testimony before U.S. Commission on Civil Rights, Increasing Compliance with Section 7 of the National Voter Registration Act (Apr. 19, 2013) (testimony of Gary Bartlett), available at https://www.usccr.gov/pubs/docs/NVRA-09-07-16.pdf.
Gary Bartlett, “First Person Singular”, ELECTIONLINEWEEKLY, May 17, 2013, archived at https://editions.lib.umn.edu/electionacademy/2013/05/17/outgoing-nc-director-gary-bart/.
Living History: Meaning of a Vote, Interview with Gary Bartlett, April 6, 2016, https://sites.duke.edu/pjms364s_01_s2016_bartlettvotingpolitics/full-interview-with-gary-bartlett-videoand-transcript/.
Gary Bartlett, North Carolina State Board of Elections, Standards for Determining What Constitutes a Vote And What Will Be Counted As a Vote Pursuant to 42 U.S.C. § 15481(a)(6) & N.C.G.S. § 163.182.1(b), https://www.ncsbe.gov/Portals/0/FilesP/WhatIsVote.pdf.
Gary Bartlett, Former NC elections chief: A wake-up call on elections, THE TIMES NEWS, May 30, 2020, https://www.thetimesnews.com/opinion/20200530/former-nc-elections-chief-wake-up-call-onelections.
Gary Bartlett, Options for Administering Ranked Choice Voting in Utah Primary Elections, RANKED CHOICE VOTING RESOURCE CENTER, 2017, https://le.utah.gov/interim/2017/pdf/00002422.pdf.
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Gary Bartlett & Robert Montjoy, Alternative Voting Systems in the U.S., August 2017, https://drive.google.com/file/d/0B3K2g6lIQMWsT3Ftem1DUldVSkE/view?usp=sharing. Gary Bartlett, Implementing Ranked Choice Voting Statewide and Across Jurisdictions When Multiple Voting Systems Are Used, RANKED CHOICE VOTING RESOURCES CENTER, September 2017, https://drive.google.com/file/d/0B3K2g6lIQMWsZ294RklzNEMyeHc/view.
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF MARSHALL TUTOR IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

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I, Marshall Tutor, hereby declare as follows:
1. I have nearly 25 years of experience as an investigator in North Carolina. I worked as a Criminal Investigator in the North Carolina Department of Insurance for over four and a half years, a Securities Investigator for the North Carolina Secretary of State Office for over four and a half years, an Elections Investigator for the NC State Board of Elections for 9 years, and then Lead Investigator for the North Carolina State Board of Elections for 6 years. I left the State Board of Elections in 2018.
2. Over the years, I have investigated numerous complaints related to elections in Bladen County.
3. McCrae Dowless has been indicted for election fraud crimes in North Carolina. My investigation of McCrae Dowless and mail-in absentee ballot fraud in Bladen County was a continuous case from 2016 until I left the State Board of Elections in 2018, prior to the 2018 fall general election.
4. In both 2016 and 2018, Mr. Dowless hired people who, often in two-person teams, would visit households that had been mailed absentee ballots by the Bladen County Board of Elections. His teams would show up with marked sample ballots in hand and would encourage these voters to mark their ballots the same way. Dowless’s teams would offer to take the ballots and turn them in. Instead, the ballots collected went directly to Mr. Dowless; some made it to the Bladen County Board of Elections and some did not.
2 Case 1:20-cv-00457-WO-JLW Document 12-4 Filed 06/05/20 Page 2 of 4

5. The ballots were collected with or without witness signatures. When there was no witness signature, Dowless’ teams would forge the signatures, and they would sign those ballots out of the presence of the voter. I never detected a forgery just by reviewing the face of the absentee ballot envelope.
6. Mr. Dowless’ illegal mail-in absentee ballot fraud enterprise was almost totally dependent on his daily access to the names and addresses of those who requested absentee ballots from the Bladen County Board of Elections. Mr. Dowless was known to have had a very long and cordial relationship with the staff at the Bladen County Board of Elections. He would either call the county board staff or come by on a daily basis to get the list of absentee ballot requests. At that time, the names and addresses of those requesting a mail-in absentee ballot were public record.
7. Now that the law has been changed so that the identities of voters requesting mail-in absentee ballots is not a public record until Election Day, I do not believe anyone can fraudulently manipulate the system as Mr. Dowless did. A person would need an accomplice working in a county board of elections office to break the law in order to get this confidential information.
8. I do not believe a two-witness signature requirement in any way prevents potential fraud such as that conducted by Mr. Dowless’ illegal ballot fraud activities. In my 15 years’ experience as an investigator with the State Board of Elections, I cannot think of a time or situation in which two absentee ballot witness signatures would have prevented absentee ballot fraud.
3 Case 1:20-cv-00457-WO-JLW Document 12-4 Filed 06/05/20 Page 3 of 4

I declare under penalty of perjury under the laws or the Unikd States of Amcrirn or that the foregoing is trnc nnd correct lo the best my knowkdgc.
rd
Executed this ·~-- of .h1m\ 20:20.
Marshall Tutor
4
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.
Plaintiffs,

Civil Action No. 20-cv-457

vs.

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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants.

DECLARATION OF CHRISTOPHER KETCHIE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

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I, Christopher Ketchie, hereby declare: 1. All facts set forth herein are based on my personal knowledge, and if called
upon to testify as to the contents of this Declaration, I could and would do so. 2. I am a demographer and data analyst for Southern Coalition for Social
Justice, where I specialize in research, analysis, and spatial visualization of demographic and electoral data.
3. In this matter, I have used public data sets to isolate certain statistics for reference in the Complaint and the Brief in Support of Plaintiffs’ Motion for Preliminary Injunction.
4. To determine changes in voter registration rates between 2016 and 2020, I used the NVRA Data (2008 to present) (last updated June 2, 2020), published by the North Carolina State Board of Elections and available at https://s3.amazonaws.com/dl.ncsbe.gov/NVRA/nvra_stats_all.txt. The data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data-Info/Election-ResultsData, and navigating to “FTP Site”  “NVRA”  “nvra_stats_all.txt.” By summing the “Count” field for total registrations (new, changed, and duplicate) and aggregating by year and month (using the “NVRA Date” field) for each month in 2016 and 2020, I determined that January 2020 had a 162% increase in registrations compared to 2016, while February, March, and April 2020 had changes of -10%, -14%, and -50% compared to the same months of 2016 respectively.
5. To determine the rate of absentee mail-in ballots rejected for the March 2020 North Carolina primary, I used data from the March 3, 2020 Absentee File, published by
2
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the North Carolina State Board of Elections and available at https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2020_03_03/absentee_20200303.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data-Info/ElectionResults-Data and navigating to “FTP Site”  “ENRS”  “2020_03_03”  “absentee_20200303.zip”. By aggregating absentee mail-in ballots by ballot return status in the “ballot_rtn_status” field (either accepted or reason for rejection), and dividing those rejected by the total, I determined that almost 15% (14.6%) of submitted absentee mail-in ballots were rejected. The statistics generated from the absentee file do not include absentee by mail ballots that were either requested and not sent to the voter or sent to the voter but not returned to the State Board of Elections (i.e. those with a null value in the “ballot_rtn_status” field).
6. To determine the percent of voters who cast mail-in absentee ballots in the 2016 general election, I used data from November 8, 2016 History Statistics, published by the North Carolina State Board of Elections and available at https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_11_08/history_stats_20161108.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2016_11_08”  “history_stats_20161108.zip”. By aggregating all votes cast by voting method in the “voting_method_desc” field, and dividing those with the “ABSENTEE BY MAIL” category by that aggregate, I determined that 4% of voters cast mail-in absentee ballots in the 2016 general election.
7. To determine the percent of precincts in North Carolina that have over 5,000
3
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voters, I used data from Voter Registration File (Last updated May 30, 2020), published by the North Carolina State Board of Elections and available at https://s3.amazonaws.com/dl.ncsbe.gov/data/ncvoter_Statewide.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data-Info/Election-ResultsData and navigating to “FTP Site”  “data”  “ncvoter_Statewide.zip”. By aggregating voters by county and precinct using the “county_desc” and “precinct_abbrv” fields, and sorting by total voters, I determined that 216 precincts in North Carolina have 5,000 or more voters.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this 4th day of June, 2020
/s/ Christopher Ketchie
4 Case 1:20-cv-00457-WO-JLW Document 12-5 Filed 06/05/20 Page 4 of 4

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER.

Plaintiffs,
vs.
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; KEN RAYMOND, 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; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendants.

Civil Action No. 20-cv-457

DECLARATION OF ALLISON J. RIGGS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

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I, Allison J. Riggs, hereby declare:

1. All facts set forth herein are based on my personal knowledge, and if called

upon to testify as to the contents of this Declaration, I could and would do so.

2. I am the Interim Executive Director and Chief Counsel for Voting Rights at

Southern Coalition for Social Justice. 3. Attached hereto as Exhibit 1 is a true and correct copy of a letter dated

March 26, 2020, from Defendant Karen Brinson Bell, Executive Director of the North

Carolina State Board. of Elections, to Governor Roy Cooper and General Assembly

leadership regarding “Recommendations to Address Election-Related Issues Affected by

COVID-19,” in which she requests, inter alia: (i) expanding options for voters to submit

mail-in absentee ballot requests beyond the current mail-only option to enable requests by

fax, email, and an online portal; (ii) establishing a fund to pay for postage for returned

absentee ballots; (iii) reducing or eliminating the requirements that two witnesses sign an

absentee mail container envelope in order for the ballot to be counted; (iv) lifting the

requirement that a majority of Election Day poll workers reside in the precinct in which

they work; and (v) lifting the uniformity requirement for early voting sites, days and

hours. 4.

Attached hereto as Exhibit 2 is a true and correct copy of a letter dated

April 22, 2020, from Defendant Bell to Governor Roy Cooper and General Assembly

leadership regarding “CARES Act Request and Clarification to Recommendations to

Address Election-Related Issues Affected by COVID-19.”

5. Attached hereto as Exhibit 3 is a true and correct copy of a letter dated

2

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April 29, 2020, from Board of Elections Members in Congressional District 11 to General Assembly Leaders, Election Committee Members, and Western North Carolina Legislators.
6. Attached hereto as Exhibit 4 is a true and correct copy of Statement on the second meeting of the International Health Regulations (2005) Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV) published by the World Health Organization and available at https://www.who.int/news-room/detail/30-01-2020statement-on-the-second-meeting-of-the-international-health-regulations-(2005)emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov).
7. Attached hereto as Exhibit 5 is a true and correct copy of People who are at higher risk for severe illness, published by the Center for Disease Control and Prevention (“CDC”) and available at https://www.cdc.gov/coronavirus/2019ncov/specific-groups/people-at-higher-risk.html.
8. Attached hereto as Exhibit 6 is a true and correct copy of Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force (Mar. 25, 2020) from a White House Press Briefing and available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-briefing-11/.
9. Attached hereto as Exhibit 7 is a true and correct copy of CDC Director Warns Second Wave of Coronavirus Might be ‘More Difficult” (Apr. 21, 2020), published by the Hill and available at https://thehill.com/policy/healthcare/493973-cdcdirector-warns-second-wave-of-coronavirus-might-be-more-difficult.
3
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10. Attached hereto as Exhibit 8 is a true and correct copy of Governor Roy Cooper’s Exec. Order No. 141 (May 20, 2020), available at https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf.
11. Attached hereto as Exhibit 9 is a true and correct copy of NCDMW Announces Driver License Office Changes during COVID-19 Outbreak (last updated June 2, 2020), published by the North Carolina Department of Transportation, and available at https://www.ncdot.gov/news/press-releases/Pages/2020/2020-03-17-ncdmvdriver-license-impact-coronavirus.aspx. The page states that as of June 2, 2020, there are 60 Department of Motor Vehicles (“DMV”) offices that are closed.
12. Attached hereto as Exhibit 10 is a true and correct copy of a February 28, 2020 Letter from Disability Rights North Carolina to members of the Davidson County Board of Elections and the General Counsel for the North Carolina State Board of Elections regarding Davidson County’s failure to assemble a Multipartisan Assistance Team to help a voter residing in a skilled nursing facility in Davidson County.
13. Attached hereto as Exhibit 11 is a true and correct copy of An Act to Provide Aid to North Carolinians in Response to the Coronavirus Disease (COVID-19) Crisis, Sl. 2020-3 §4.1(c) (May 4, 2020), available at https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2020-3.pdf. The Senate bill states, “Nothing in this section shall apply to any notarization under Article 20 of Chapter 163 of the General Statutes [regarding absentee ballots].”). Id. at 31.
14. Attached hereto as Exhibit 12 is a true and correct copy of a North 4
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Carolina Absentee Application and Certificate, made available by Pitt County, North Carolina at https://www.pittcountync.gov/DocumentCenter/View/8432/AbsenteeEnvelope_EL_v3.
15. Attached hereto as Exhibit 13 is a true and correct copy of a Federal Writein Absentee Ballot, made available by the Federal Voting Assistance Program at https:// www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf, p. 3.
16. Attached hereto as Exhibit 14 is a true and correct copy of Recommendations for Election Polling Locations, published by the CDC and available at https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html.
17. Attached hereto as Exhibit 15 is a true and correct excerpt of The 2014 EAC Election Administration and Voting Survey Comprehensive Report (Table 39), published by the U.S. Election Assistance Comm’n and available at https://www.eac.gov/sites/default/files/eac_assets/1/1/2014_EAC_EAVS_Comprehensiv e_Report_508_Compliant.pdf.
18. Attached hereto as Exhibit 16 is a true and correct copy of Voting Rights and Election Administration in North Carolina: Field Hearing Before the Subcomm. on Elections of the H. Comm. on House Administration (Apr. 18, 2019), available through the testimony of Tomas Lopez, Exec. Dir., Democracy North Carolina at https://docs.house.gov/meetings/HA/HA08/20190418/109315/HHRG-116-HA08-WstateLopezT-20190418.pdf.
19. Attached hereto as Exhibit 17 is a true and correct copy of Bipartisan Furor as North Carolina Election Law Shrinks Early Voting Locations by Almost 20 Percent
5
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(Sept. 24, 2018), written by Blake Peterson and published by ProPublica, and available at https://www.propublica.org/article/bipartisan-furor-as-north-carolina-election-lawshrinks-early-voting-locations-by-almost-20percenthttps://www.propublica.org/article/bipartisan-furor-as-north-carolina-electionlaw-shrinks-early-voting-locations-by-almost-20-percent.
20. A compilation of files related to precinct closures for the upcoming Congressional District 11 Second Republican Primary was published by the North Carolina State Board of Elections in response to a public records request dated May 14, 2020, and these files are available at https://dl.ncsbe.gov/index.html?prefix=Public_Records_Requests/June%2023%20Second %20Primary_temporary_precinct_transfers/. Among these documents are letters from the count boards of elections of Yancy, Madison, and Jackson counties indicating that lack of poll workers contributed to the need to consolidate, and a letter from Macon County Board of Elections requesting to consolidate 12 precincts into one site. See Exhibits 18, 19, 20, and 21.
21. Attached hereto as Exhibit 22 is a true and correct copy of State Board, DMV Partner to Expand Online Voter Registration Service (Mar. 30, 2020), published by N.C. State Board of Elections, and available at https://www.ncsbe.gov/Press-Releases? udt_2226_param_detail=2195.
22. Attached hereto as Exhibit 23 is a true and correct copy of North Carolina's COVID-19 Response for Individuals and Families (last accessed Jun. 4, 2020), published by N.C. Department of Health and Human Services, and available at
6
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https://www.ncdhhs.gov/divisions/public-health/covid19/individuals-andfamilies.
23. I am aware that, in a May 15, 2020 meeting of the North Carolina State Board of Elections, Executive Director Karen Brinson Bell announced that the State Board had ordered Personal Protective Equipment for those counties participating in the June 23 second Republican primary in Congressional District 11, including masks, unique pens for voters, cleaners and wipes, and gloves and face shields for poll workers.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
Executed this 4th day of June, 2020.
/s/ Allison Riggs
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EXHIBIT 1 Letter from Karen Brinson Bell, Executive Director,
N.C. State Board of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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Mailing Address: P.O. Box 27255, Raleigh, NC 27611
(919) 814-0700 or (866) 522-4723
Fax: (919) 715-0135

TO:
FROM: RE: DATE:

Governor Roy Cooper; Speaker Tim Moore; President Pro Tempore Phil Berger; Joint Legislative Elections Oversight Committee; Joint Legislative Oversight Committee on General Government; and House Select Committee on COVID-19, Continuity of State Operations Working Group Karen Brinson Bell, Executive Director Recommendations to Address Election-Related Issues Affected by COVID-19 March 26, 2020

The spread of the novel coronavirus (COVID-19) impacts the conduct of elections and daily operations for the State Board of Elections (State Board) and county boards of elections. In response, our agency has taken a number of actions in recent days and weeks to address election-related impacts of the pandemic and inform the public about our efforts. These include:
• An emergency Executive Order issued on March 20, 2020, that, among other things, rescheduled the Republican second primary in Congressional District 11 from May 12, 2020, to June 23, 2020.
• An amended Administrative Rule 08 NCAC 01 .0106, by both emergency and proposed temporary rulemaking, to clarify the Executive Director’s statutory authority to exercise emergency powers to conduct an election in a district where the normal schedule for the election is disrupted by a natural disaster, extremely inclement weather, or armed conflict. The amendment clarifies that a catastrophe arising from natural causes includes a disease epidemic or other public health incident that makes it impossible or extremely hazardous for elections officials or voters to reach or otherwise access the voting place or that creates a significant risk of physical harm to persons in the voting place, or that would otherwise convince a reasonable person to avoid traveling to or being in a voting place.
• Numbered Memo 2020-11, released on March 15, 2020, provides guidance on immediate actions that may be taken by authority of the Executive Director and other steps that may be taken by county boards of elections.
• Establishment of a working group of State and county election officials to consider immediate steps that should be taken for the conduct of the federal second primary and also more long-term steps including legislative requests to administer elections in times of disease epidemics, necessary measures if mail balloting were expanded, and efforts that must be taken to ensure the health and well-being of voters and workers during in-person voting.
• A statement released by the NCSBE on March 12, 2020.

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While the State Board will continue to administer elections in the wake of COVID-19 within our current legal authority, the State Board respectfully recommends the General Assembly consider making the following statutory changes to address the impacts of the coronavirus pandemic on our elections. We believe that, in order to ensure continuity and avoid voter confusion, the changes should be made permanent, except where indicated otherwise.
• Expand options for absentee requests. We recommend allowing a voter to submit an absentee ballot request form by fax and email. Current law restricts the return of the absentee request form to the voter and the voter’s near relative or legal guardian, and restricts the methods by which the requests can be returned to in-person or by mail or designated delivery service. We also recommend a limited exception to G.S. § 163-230.2(e)(2) to allow county boards of elections to pre-fill a voter’s information on an absentee request form. The voter or near relative would still be required to sign the form, but this change would allow voters who are home due to COVID-19 to request an absentee request form by phone and have a pre-filled form sent to them rather than having to travel to the county board office to receive assistance.
• Establish online portal for absentee requests. The State Board expects a large increase in the number of voters who choose to vote absentee by mail this year, and creating an online portal for absentee voting would make it easier for voters to request an absentee ballot from home. The voter or near relative would provide identifying information (including the voter’s date of birth and the last four digits of the voter’s Social Security or drivers license number), and an electronic signature as defined in G.S. § 66-312 of the Uniform Electronic Transaction Act would be permitted. An allocation of funds to purchase a program or application to support this functionality may be needed.
• Allow a voter to include a copy of a HAVA document with their absentee request form if the voter is unable to provide their drivers license number or last four digits of their Social Security number. We recommend allowing a voter who did not include their drivers license number or the last four digits of their Social Security number the option to include a copy of a current utility bill, bank statement, government check, paycheck, or other government document showing the name and address of the voter. Making this change to G.S. § 163230.2 would make it easier for those who wish to vote absentee by-mail to do so. The State Board has received multiple reports from county boards of elections and from voters that, without this option, some voters are no longer able to request an absentee ballot. This particularly affects senior citizens who may not have a drivers license number and cannot recall or do not have access to their Social Security number. Allowing this option will make it easier for those most at risk of contracting COVID-19 to vote absentee by mail.
• Establish a fund to pay for postage for returned absentee ballots. Elections officials across the nation are anticipating a surge in absentee voting in light of
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restrictions on movement imposed due to the spread of COVID-19. Prepaid postage would increase the likelihood that a voter would return their ballot, would eliminate the need for a voter to leave their home to purchase postage, and would also decrease any incentive for a voter to turn their ballot over to someone else. Prepaid postage for the return of absentee ballots would also further enable residents and patients of facilities such as nursing homes and group homes to return their ballots safely, easily, and with minimal human contact.
• Reduce or eliminate the witness requirement. In light of social distancing requirements to prevent the spread of COVID-19, we recommend reducing the witness requirement for the certification on absentee container-return envelopes. Currently, a voter must have their absentee envelope signed by two witnesses or one notary. North Carolina residents are currently being asked to stay at home, and without a timeline for when the disease will be under control, requiring only one witness would reduce the likelihood that a voter would have to go out into the community or invite someone to their home to have their ballot witnessed. Eliminating the witness requirement altogether is another option and would further reduce the risk.
• Modify procedure for counting of ballots on Election Day. To allow county boards of elections more time to process the anticipated surge in absentee ballots, we recommend amending the law to provide that ballots received by the Saturday prior to the election must be counted on Election Day, and all other absentee ballots that are timely received will be counted on the day of the canvass. Currently, G.S. § 163-234(2) requires county boards to meet on Election Day to count all absentee ballots received by 5:00 p.m. on the day before the election. Changing the timeframe for when absentee ballots are counted would help ease the burden of an increased volume of absentee ballots, especially in larger counties. This change would not affect the deadline for the county boards to receive absentee ballots, nor would it affect which ballots are counted; rather, it would ameliorate the anticipated increase in absentee ballots received by county boards between the Saturday before the election and 5:00 p.m. on the day before the election. As part of this change, we also recommend extending county canvass to 14 days after the election, rather than 10 days after the election as provided in G.S. § 163182.5(b), to allow county boards of elections sufficient time to count the large number of ballots that are anticipated being received; State Board canvass would also need to extended accordingly.
• Temporarily modify restrictions on assistance in care facilities. Currently, G.S. § 163-226.3(a)(4) makes it a Class I felony for an owner, director, manager, or employee of a hospital, clinic, nursing home, or adult care home to assist a voter in that facility in requesting, voting, or returning the voter’s absentee ballot. There are important reasons to discourage facility employees from assisting patients and residents with their absentee requests and with voting their ballots. However, many localities are currently restricting or banning visitors to facilities, and an Executive Order issued by the Governor prevents visitors altogether to reduce the spread of COVID-19. With this in mind, it may not be possible for
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multipartisan assistance teams (MATs), or others who would traditionally assist facility residents, to provide assistance. Individuals may also be unwilling to serve on MATs due to the increased risk of transmission of COVID-19 at a facility. Many voters in these facilities do require help with requesting, voting, and/or returning their ballots, and with no option available for assistance they may effectively be disenfranchised. We suggest considering options, such as temporarily allowing a facility employee to assist, to ensure these voters are able to continue to exercise their right to vote.
• Clarify authorization for telephonic meetings. It would be helpful to clarify that telephonic meetings and meetings held by other remote means are specifically authorized by the open meetings law. State Board counsel construe Article 33C of Chapter 143 to permit telephonic and other remotely held meetings. However, the UNC School of Government has a different interpretation of the law based on its stated familiarity with the law’s history.
• Expand student pollworker program. We are recommending expanding the student pollworker program to allow students to fill the role of judge or chief judge, to allow juniors or seniors to serve as long as they are at least 16 years old, and to allow service as a pollworker to count as an approved school trip. Chief judges and judges would still be appointed from recommendations provided by the political parties. Currently, G.S. § 163-42.1 requires students be at least 17 years old and only allows them to serve in the role of precinct assistant. It also requires the principal of the student’s school to recommend the student; we suggest this section include an exception to that requirement if the school is closed. These changes would increase the county boards of elections’ recruitment of students, who tend to be less at risk of COVID-19. The changes will be especially necessary if large numbers of pollworkers are unable to serve. The average age of pollworkers in North Carolina is around 70 and the role requires significant interaction with the public, so we anticipate that pollworkers in at-risk categories may be advised not to serve or may be unable to serve this year.
• Make Election Day a holiday. Designating Election Day as a State holiday would expand the potential pool of pollworkers to students, teachers, and younger individuals. It would also encourage state and county employees to work the polls. These groups tend to be in a lower-risk category for COVID-19 and therefore would be an asset given current concerns. An alternative option would be to provide paid leave for state and county employees who serve as pollworkers and providing course credit for student pollworkers.
• Increase pay for pollworkers. Precinct officials safeguard the democratic process and help ensure confidence in the system. Increasing pay for pollworkers will help county boards of elections recruit and retain a strong elections workforce this year and for years to come. Current pay for precinct officials is the state minimum wage, $7.25 per hour. G.S. § 163-46. On Election Day, pollworkers must serve for the entire day without leaving the site—a shift of more than 14 hours. The minimum wage requirement was put in place in 1981 (see Session
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Law 1981-796). Ensuring that pollworkers’ unemployment benefits are not affected by their service is another way to increase recruitment efforts.
• Eliminate requirement that a majority of pollworkers reside in precinct. Eliminating the requirement in G.S. § 163-41(c) that a majority of pollworkers at a polling place must reside in the precinct would provide county boards of elections with greater flexibility to staff their precincts. It would increase the likelihood a county board of elections would be able to keep a polling place open rather than having to combine it with another polling place to meet the residency requirement.
• Temporarily suspend purchase and contract requirements for elections-related supplies and other items. To allow the State Board and county boards to continue operating in a time when many business and government entities have reduced capacity or have closed, temporarily lifting the purchase and contract requirements of Article 3 of Chapter 143 in 2020 would significantly speed up the ability to procure necessary supplies.
• Match HAVA funds. In order to receive federal elections security funds that were authorized in late 2019, the State must make a 20% match. This funding will be indispensable in our agency’s continued effort to secure North Carolina’s elections. This is true even more so as we react and respond to the pandemic, since times of crisis and uncertainty increase the threats of cyber attacks, phishing attempts, and scams. Federal authorities have also indicated these funds may be used for COVID-19 response efforts such as cleaning supplies and protective masks for staff and pollworkers, resources to meet an unanticipated increased demand for mail ballots due to self-isolation and quarantine in response to COVID19, and temporary staff to process the increased absentee ballot demand. Funds may also be used for costs incurred to communicate law changes, such as changes in absentee-by-mail ballot rules, that could result from the pandemic. Exempting HAVA-funded positions at the State Board from a possible hiring freeze would also be important to ensuring the agency is able to continue to secure the statewide voter registration database and many other duties to protect North Carolina’s elections from cyber threats.
• One-Stop. Consider whether changes to one-stop requirements, such as site and hour requirements, may be needed in light of the uncertainty regarding containment of the COVID-19 pandemic by the early voting period in October 2020. Currently, if any one-stop site is open all one stop-sites must be open and all sites other than the county board office must be open 8:00 a.m. to 7:30 p.m. County boards of elections need flexibility to determine hours because they are affected differently by, and respond differently to, the COVID-19 pandemic.
While the situation with COVID-19 is changing on a daily and sometimes hourly basis, we believe the above recommendations will help the elections that form the basis of North Carolina’s democracy remain strong and resilient in these uncertain times.
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We are appreciative of the appointment of the House Select Committee on COVID-19, Continuity of State Operations Working Group, and I stand ready to answer your questions or provide any other information that may be useful in consideration of these recommendations. Sincerely, Karen Brinson Bell Executive Director State Board of Elections
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EXHIBIT 2 Letter from Karen Brinson Bell, Executive Director,
N.C. State Board of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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KAREN BRINSON BELL Executive Director

Mailing Address: P.O. Box 27255, Raleigh, NC 27611

Phone: (919) 814-0700 or (866) 522-4723

Fax: (919) 715-0135

TO:
FROM: RE: DATE:

Governor Roy Cooper; Speaker Tim Moore; President Pro Tempore Phil Berger; Joint Legislative Elections Oversight Committee; Joint Legislative Oversight Committee on General Government; House Select Committee on COVID-19, Continuity of State Operations Working Group; House Democratic Leader Darren Jackson; Senate Democratic Leader Dan Blue Karen Brinson Bell, Executive Director CARES Act Request and Clarification to Recommendations to Address ElectionRelated Issues Affected by COVID-19 April 22, 2020

We write to provide you with updated information regarding our legislative requests made on March 26, 2020, including estimated costs and the timeframes for when changes would need to be made. We are also writing to provide additional detail about the Coronavirus Aid, Relief, and Economic Security (CARES) Act requirements that we received last week. On April 6, 2020, we were informed of North Carolina’s award of $10,897,295 under the CARES Act, which was appropriated “to prevent, prepare for, and respond to coronavirus, domestically or internationally, for the 2020 Federal election cycle.” The State match requirement is 20%, or $2,179,459.
We have completed two trainings to better understand how the match may be met and how the funds may be applied. Some key points are:
• The funds are for additional costs, either new or increased, associated with the national emergency related to coronavirus.
• All funds must be spent or incurred by December 31, 2020 or returned to the federal government.
• Pre-award costs may be included if they were incurred on or after January 20, 2020. • The State match may be funded over two years and may also be met:
o By direct funding of the State; o By indirect or direct costs incurred by the State Board of Elections, county boards
of elections, and/or partners supporting state or county election boards to conduct elections through this pandemic; and/or, o Through in-kind contributions. We are working with the National Association of State Election Directors to identify hand sanitizer and other supplies that may be provided free of charge if available.
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To date, we have identified $58,962 already incurred by the State Board of Elections, county boards of elections, and supporting entities that can be credited towards the State’s match. This includes $38,031 in indirect costs incurred by the State Board of Elections; $14,931 in direct costs incurred by the county boards of elections; and $6,000 in in-kind donations.
We therefore are requesting state funding of $2,120,497 to receive the $10+ million awarded to North Carolina.
Through these funds we can offset significant new and increased costs to the counties because of a projected 30% to 40% voter absentee-by-mail participation rate (compared to a 4% to 5% rate traditionally), the need to more thoroughly sanitize and improve hygiene methods during one-stop early voting and on Election Day, and to address possible poll worker shortage due to illness or reluctance or inability to serve. The CARES Act funds would directly assist counties through bulk purchases, state purchase and distribution to the counties, or through reimbursement, and could include but are not limited to the cost of:
• One-time-use pens and styluses for each voter, or sanitization of reusable supplies • Hand sanitizer and masks for voters, poll workers, and election staff • Social distancing tools and protective devices such as face shields, stanchions and
plexiglass shields at check-in stations • Facility rental fees to assist counties in moving to sites large enough to accommodate social
distancing, including former department stores or grocery stores, if available • Facility cleaning fees before, during, and after the election • Increased postage costs due to a higher volume of absentee-by-mail requests • Mail tracking software to help the voter understand where their ballot is in the process and
to help the counties prepare for the volume of incoming returned ballots • Cost of additional absentee-by-mail envelopes and other supplies
Just to conduct the General Election statewide on Election Day, we will operate nearly 2,700 voting sites with approximately 18,000 workers employed for 14 to 16 hours. We are preparing for more than 4.5 million voters to vote in-person or by-mail in this election. To ensure the health and safety of the voters and workers, the costs add up quickly. And while we would like to think that coronavirus will be a distant memory by November, we must prepare to address lingering fears, new social norms, and the possibility that the virus could reoccur seasonally as do influenza and other viruses. As elections officials, we must prepare for the worst-case scenario to ensure that voters are able to cast their ballots. All of this means we need legislative approval for the associated State match to move forward with the CARES Act funding.
Procuring and purchasing these supplies must happen now to ensure delivery by July when counties will begin to assemble their supply kits, train poll workers, and receive orders from print houses. We must also be mindful that all 50 states and territories will be implementing similar procedures for the same Election Day and the supply chain is very stressed to meet the demands.
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For these reasons, we also request that the General Assembly move forward with the following recommendations during the special session beginning April 28, 2020. These are immediate needs that apply to the 11th Congressional District Republican Second Primary, the new Columbus County Commissioner District 2 Republican Primary, and the 2020 General Election. Particular to the General Election, because of the high expected turnout for a presidential general election, supplies must be ordered, printing changes must be submitted and scheduled with print houses, and other changes or orders should be completed by June 15, 2020 to meet deadlines associated with that election, which starts with absentee-by-mail voting on September 4, 2020. The recommendations needing immediate consideration for all three elections are:
• Match CARES Act funds as outlined above.
• Match HAVA funds as outlined in my March 26, 2020 letter.
• Temporarily suspend purchase and contract requirements for elections-related supplies and other items. Because of the time limitations and amount of supplies needed to protect voters and pollworkers from COVID-19, the State Board and county boards may have difficulty complying with procurement processes without the temporary suspension. This change would need to happen right away as we are currently attempting to procure many supplies due to the upcoming second primary and the shortages that have occurred with so many states competing for resources.
 No additional expected cost
• Expand options for absentee requests (allow requests by fax and email). We recommend allowing a voter to submit an absentee ballot request form by fax and email to allow voters to submit their absentee requests without leaving their home or needing to purchase stamps or envelopes. This change needs to be made as soon as possible as voters may already request absentee ballots for the June 23 and November 3 elections.
 No additional expected cost
• Allow a voter to include a copy of a HAVA document with their absentee request form if the voter is unable to provide their driver’s license number or last four digits of their Social Security number. Restoring this option will make it easier for those most at risk of contracting COVID-19 to vote absentee by-mail. This change is needs to be made as soon as possible as voters may already request absentee ballots for the June 23 and November 3 elections.
 No additional expected cost
• Reduce or eliminate the witness requirement for absentee ballots. Most voters, under current law, would have to invite another adult into the voter’s home to complete the voting process since most voters do not live with two other individuals age 18 or older. This increases the risk of transmission or exposure to disease. By reducing the witness requirement to one witness during a disease epidemic, we can effectively conduct
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absentee-by-mail voting while reducing a voter’s risk of disease. Additionally, it should be noted that we continue to support restricting the return of absentee-by-mail ballots to the voter or near relative as enacted by Session Law 2019-239. It is necessary to make the change now in order to update the absentee instructions and return envelope, since these will need to be redesigned by June and printed in early July to ensure the counties can meet the start of absentee-by-mail voting on September 4, 2020.
An alternative option, and one that could be carried out beyond the 2020 General Election, is to consider signature matching software. Software is available to compare the voter’s signature on file to the signature provided on the absentee-ballot return envelope. Moving to this verification process would eliminate the need for witnesses.
 No additional expected cost to reducing witness requirement. Software would have added cost, but we do not yet have information about the expected cost.
• Temporarily modify restrictions on assistance in care facilities. Many localities are currently restricting or banning visitors and family members to facilities, and an Executive Order issued by the Governor prevents visitors altogether to reduce the spread of COVID19. Additionally, across the state, care facilities have tragically experienced large numbers of coronavirus cases and deaths. We do not know what the conditions will be like when absentee voting occurs from September to November this year. With this in mind, it may not be possible for multipartisan assistance teams (MATs), or others who would traditionally assist facility residents, to provide assistance. Many voters in these facilities do require help with requesting, voting, and/or returning their ballots, and with no option available for assistance, they may effectively be disenfranchised. We suggest considering options, such as temporarily allowing a facility employee to assist, to ensure these voters are able to continue to exercise their right to vote. Similar to states like Indiana, two trained facility employees not of the same political party could be designated to administer voting and could be trained accordingly by the county board prior to serving in this capacity. Election officials could then transport materials to and from the facility with chain of custody procedures documenting the acceptance of materials by the designated facility administrators. It is necessary to make this change as soon as possible to designate and train appropriate individuals to serve in facilities.
 No additional expected cost
• Expand student pollworker program and eliminate requirement that a majority of pollworkers reside in the precinct. We recommend this change be made immediately because there are shortages in some polling places in the 11th Congressional District Republican Second Primary and the new Columbus County Commissioner District 2 Republican Primary that may require transferring voters to another precinct.
 No additional cost expected
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We also request the General Assembly move forward with the following recommendations during the special session beginning April 28, 2020. These are immediate needs, but it is not possible to implement them for the 11th Congressional District Republican Second Primary and the new Columbus County Commissioner District 2 Republican Primary. Because of deadlines associated with the 2020 General Election, however, there is an immediate need to prepare for a coronavirus response:
• Establish online portal for absentee requests. This change would need to be made immediately due to the time required to acquire software, modify the State Board of Elections’ Statewide Elections Information Management System (SEIMS), and inform the public of the change prior to the start of absentee voting on September 4, 2020.
 We have received a quote from a vendor who supports numerous states and jurisdictions throughout the country. Based upon the volume projected for North Carolina, the annual license fee is $398,000 with a pre-election configuration fee of $25,950.
• Establish a fund to pay for postage for outbound and returned absentee ballots. We would request any funds be allocated as soon as possible to allow county boards of elections to budget for the election and in light of the budgetary reductions they are already being requested to make at the county level.
 The estimate for prepaid postage for the November general election, based upon 65% of registered voters participating in the election and 40% of those participating by mail, would be $3,640,000, at a cost of approximately $2 total per ballot (7 million voters x 65% overall participation=4,550,000 participating voters with 40% participating by mail=1,820,000 by mail ballots). This prepaid cost would include both the outgoing and incoming postage cost. Envelope size and weight may affect this estimate.
• Modify one-stop site and hour requirements. We recommend any changes be made as soon as possible to allow time for county boards of elections to locate and procure appropriate sites, a process that has already begun for the November 3 election.
 We expect a change would reduce costs for the county boards of elections. Due to the uncertainty of any possible change, it is not currently possible to estimate the savings.
We appreciate the dialogue we have had with many of you through this process and uncharted waters. Our goal is to “prepare for the worst” in hopes that we are overly prepared. Elections administration, as we have discussed, is a planning and logistics operation. The bulk of an election is executed before voting ever begins, which is why we come before you now. If we can secure the funds needed and know any legislative changes that may occur, then we can better prepare and deliver successful elections under normal conditions or in times of crisis.
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I stand ready to answer your questions or provide any other information that may be useful in consideration of these funding requests and recommendations. Sincerely, Karen Brinson Bell Executive Director State Board of Elections
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EXHIBIT 3 Letter from Board of Elections Members in Congressional District 11 to General Assembly
Leaders et al. (Apr. 29, 2020)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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CONGRESSIONAL DISTRICT 11 BOARDS OF ELECTIONS c/o Kathy Ray, Madison County Board of Elections Marshall, NC 28753 Phone: 828-649-3731 Email: madison.boe@madisoncountync.gov
April 27, 2020
Dear General Assembly Leaders, Election Committee Members, and Western NC Legislators,
We write as Republican and Democratic members of the county boards of elections in Congressional District 11 with an urgent request.
As we prepare to administer the runoff election (Second Primary) on June 23, we are learning that many of our regular poll workers are reluctant to serve. A large percent of them are elderly and are genuinely concerned about their health. In addition, some of our polling places are now being used by other agencies for emergency purposes. If we must change or combine polling places because of a poll worker shortage or a need for alternative locations, we must place a public notice in the media by May 9th and must mail notices to all affected voters by May 23rd.
Under current law, a majority of poll workers must reside in the precinct where they serve on Election Day. State Board of Elections Director Karen Brinson Bell has requested a change in state law to allow county boards to recruit and train poll workers from across the county. This change would significantly help us staff polling places in these challenging times. Because we must make decisions very soon, we encourage you to include this change in the actions you take when you reconvene next week.
We are committed to administering secure and fair elections, and we would be happy to provide our insights about other changes that may be needed in the future. Our county directors are also valuable resources for conducting safe and secure elections at the county level. The State Board of Elections has provided a number of suggestions that address important issues at the state level, and many of them are also time sensitive, including matching state funds to release federal dollars for enhanced security and COVID-19 related election expenses.
We appreciate your leadership and look forward to working with you.
Sincerely,
Board of Elections Members in Congressional District 11 (alphabetical order of signers)
Pat Ackerman, Cherokee County Eddie Adams, Cherokee County Craig Allen, Cherokee County Jerry Anderson, Clay County Brian Ball, Madison County Gary Boone, Yancey County
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Sara Champion, Transylvania County Juanita Colvard, Graham County Lowell Crisp, Graham County Gail Criss, Clay County William Cutler, Henderson County Pamela Dashiell, Transylvania County Danny Davis, Haywood County Gary Dills, Macon County Billy Ditmore, Graham County Teresa Eller, Graham County Lynne Garrison, Macon County Jeff Gillette, Macon County Gary Kilpatrick, Cherokee County Ray Lewis, Madison County Frances Lockwood, Rutherford County Pat Margo, Clay County Charles McCurry, Yancey County Rusty McLean, Haywood County Lee McMinn, Transylvania County Charles Medd, Henderson County Joey Miller, Yancey County David Morrow, Transylvania County Elizabeth Norris, Haywood County June Ray, Haywood County Keith Rogers, Graham County Paul Rohs, Clay County Dyatt Smathers, Madison County Linda Smith, Rutherford County Sandy Solsbee, Cherokee County Howard Sorrells, Haywood County Christian Stolz, Henderson County Kathy Tinsley, Macon County Julia Tipton, Yancey County Sandra Tolley, Madison County John Vanhook, Macon County Michael Wainwright, Transylvania County Jerry Wallin, Madison County Brenda Wilson, Yancey County Keyla Youngblood-Stillwell, Clay County
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EXHIBIT 4 Statement on the second meeting of the International
Health Regulations (2005) Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV) published by the World Health Organization
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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©
Newsroom Detail
Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV)
30 January 2020 |Statement |Geneva, Switzerland
The second meeting of the Emergency Committee convened by the WHO Director-General under the International Health Regulations (IHR) (2005) regarding the outbreak of novel coronavirus 2019 in the People’s Republic of China, with exportations to other countries, took place on Thursday, 30 January 2020, from 13:30 to 18:35 Geneva time (CEST). The Committee’s role is to give advice to the Director-General, who makes the final decision on the determination of a Public Health Emergency of International Concern (PHEIC). The Committee also provides public health advice or suggests formal Temporary Recommendations as appropriate.
Proceedings of the meeting
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Members and advisors of the Emergency Committee were convened by teleconference
The Director-General welcomed the Committee and thanked them for their support. He turned the meeting over to the Chair, Professor Didier Houssin.
Professor Houssin also welcomed the Committee and gave the floor to the Secretariat.
A representative of the department of compliance, risk management, and ethics briefed the Committee members on their roles and responsibilities.
Committee members were reminded of their duty of confidentiality and their responsibility to disclose personal, financial, or professional connections that might be seen to constitute a conflict of interest. Each member who was present was surveyed and no conflicts of interest were judged to be relevant to the meeting. There were no changes since the previous meeting.
The Chair then reviewed the agenda for the meeting and introduced the presenters.
Representatives of the Ministry of Health of the People’s Republic of China reported on the current situation and the public health measures being taken. There are now 7711 confirmed and 12167 suspected cases throughout the country. Of the confirmed cases, 1370 are severe and 170 people have died. 124 people have recovered and been discharged from hospital.
The WHO Secretariat provided an overview of the situation in other countries. There are now 83 cases in 18 countries. Of these, only 7 had no history of travel in China. There has been human-to-human transmission in 3 countries outside China. One of these cases is severe and there have been no deaths.
At its first meeting, the Committee expressed divergent views on whether this event constitutes a PHEIC or not. At that time, the advice was that the event did not constitute a PHEIC, but theCommittee members agreed on the urgency of the situation and suggested that the Committee should continue its meeting on the next day, when it reached the same conclusion.
This second meeting takes place in view of significant increases in numbers of cases and additional countries reporting confirmed cases.
Conclusions and advice
The Committee welcomed the leadership and political commitment of the very highest levels of Chinese government, their commitment to transparency, and the efforts made to investigate and contain the current outbreak. China quickly identified the virus and shared its sequence, so that
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 20 of 56

other countries could diagnose it quickly and protect themselves, which has resulted in the rapid development of diagnostic tools.
The very strong measures the country has taken include daily contact with WHO and comprehensive multi-sectoral approaches to prevent further spread. It has also taken public health measures in other cities and provinces; is conducting studies on the severity and transmissibility of the virus, and sharing data and biological material. The country has also agreed to work with other countries who need their support. The measures China has taken are good not only for that country but also for the rest of the world.
The Committee acknowledged the leading role of WHO and its partners.
The Committee also acknowledged that there are still many unknowns, cases have now been reported in five WHO regions in one month, and human-to-human transmission has occurred outside Wuhan and outside China.
The Committee believes that it is still possible to interrupt virus spread, provided that countries put in place strong measures to detect disease early, isolate and treat cases, trace contacts, and promote social distancing measures commensurate with the risk. It is important to note that as the situation continues to evolve, so will the strategic goals and measures to prevent and reduce spread of the infection. The Committee agreed that the outbreak now meets the criteria for a Public Health Emergency of International Concern and proposed the following advice to be issued as Temporary Recommendations.
The Committee emphasized that the declaration of a PHEIC should be seen in the spirit of support and appreciation for China, its people, and the actions China has taken on the frontlines of this outbreak, with transparency, and, it is to be hoped, with success. In line with the need for global solidarity, the Committee felt that a global coordinated effort is needed to enhance preparedness in other regions of the world that may need additional support for that.
Advice to WHO
The Committee welcomed a forthcoming WHO multidisciplinary technical mission to China, including national and local experts. The mission should review and support efforts to investigate the animal source of the outbreak, the clinical spectrum of the disease and its severity, the extent of human-tohuman transmission in the community and in healthcare facilities, and efforts to control the outbreak. This mission will provide information to the international community to aid in understanding the situation and its impact and enable sharing of experience and successful measures.
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The Committee wished to re-emphasize the importance of studying the possible source, to rule out hidden transmission and to inform risk management measures The Committee also emphasized the need for enhanced surveillance in regions outside Hubei, including pathogen genomic sequencing, to understand whether local cycles of transmission are occurring. WHO should continue to use its networks of technical experts to assess how best this outbreak can be contained globally. WHO should provide intensified support for preparation and response, especially in vulnerable countries and regions. Measures to ensure rapid development and access to potential vaccines, diagnostics, antiviral medicines and other therapeutics for low- and middle-income countries should be developed. WHO should continue to provide all necessary technical and operational support to respond to this outbreak, including with its extensive networks of partners and collaborating institutions, to implement a comprehensive risk communication strategy, and to allow for the advancement of research and scientific developments in relation to this novel coronavirus. WHO should continue to explore the advisability of creating an intermediate level of alert between the binary possibilities of PHEIC or no PHEIC, in a way that does not require reopening negotiations on the text of the IHR (2005). WHO should timely review the situation with transparency and update its evidence-based recommendations. The Committee does not recommend any travel or trade restriction based on the current information available. The Director-General declared that the outbreak of 2019-nCoV constitutes a PHEIC and accepted the Committee’s advice and issued this advice as Temporary Recommendations under the IHR.
To the People’s Republic of China
Continue to:
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• Implement a comprehensive risk communication strategy to regularly inform the population on the evolution of the outbreak, the prevention and protection measures for the population, and the response measures taken for its containment. • Enhance public health measures for containment of the current outbreak. • Ensure the resilience of the health system and protect the health workforce. • Enhance surveillance and active case finding across China. • Collaborate with WHO and partners to conduct investigations to understand the epidemiology and the evolution of this outbreak and measures to contain it. • Share relevant data on human cases. • Continue to identify the zoonotic source of the outbreak, and particularly the potential for circulation with WHO as soon as it becomes available. • Conduct exit screening at international airports and ports, with the aim of early detection of symptomatic travelers for further evaluation and treatment, while minimizing interference with international traffic.
To all countries
It is expected that further international exportation of cases may appear in any country. Thus, all countries should be prepared for containment, including active surveillance, early detection, isolation and case management, contact tracing and prevention of onward spread of 2019nCoVinfection, and to share full data with WHO. Technical advice is available on the WHO website. Countries are reminded that they are legally required to share information with WHO under the IHR. Any detection of 2019-nCoV in an animal (including information about the species, diagnostic tests, and relevant epidemiological information) should be reported to the World Organization for Animal Health (OIE) as an emerging disease. Countries should place particular emphasis on reducing human infection, prevention of secondary transmission and international spread, and contributing to the international response though multisectoral communication and collaboration and active participation in increasing knowledge on the virus and the disease, as well as advancing research.
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The Committee does not recommend any travel or trade restriction based on the current information available.
Countries must inform WHO about travel measures taken, as required by the IHR. Countries are cautioned against actions that promote stigma or discrimination, in line with the principles of Article 3 of the IHR.
The Committee asked the Director-General to provide further advice on these matters and, if necessary, to make new case-by-case recommendations, in view of this rapidly evolving situation.
To the global community
As this is a new coronavirus, and it has been previously shown that similar coronaviruses required substantial efforts to enable regular information sharing and research, the global community should continue to demonstrate solidarity and cooperation, in compliance with Article 44 of the IHR (2005), in supporting each other on the identification of the source of this new virus, its full potential for human-to-human transmission, preparedness for potential importation of cases, and research for developing necessary treatment.
Provide support to low- and middle-income countries to enable their response to this event, as well as to facilitate access to diagnostics, potential vaccines and therapeutics.
Under Article 43 of the IHR, States Parties implementing additional health measures that significantly interfere with international traffic (refusal of entry or departure of international travellers, baggage, cargo, containers, conveyances, goods, and the like, or their delay, for more than 24 hours) are obliged to send to WHO the public health rationale and justification within 48 hours of their implementation. WHO will review the justification and may request countries to reconsider their measures. WHO is required to share with other States Parties the information about measures and the justification received.
The Emergency Committee will be reconvened within three months or earlier, at the discretion of the Director-General.
The Director-General thanked the Committee for its work.
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Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 24 of 56

EXHIBIT 5 People who are at higher risk for severe illness,
published by Ctrs. for Disease Control and Prevention (“CDC”)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 25 of 56

COVID-19 is a new disease and there is limited information regarding risk factors for severe disease. Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.
Based on what we know now, those at high-risk for severe illness from COVID-19 are:
People 65 years and older People who live in a nursing home or long-term care facility
People of all ages with underlying medical conditions, particularly if not well controlled, including:
People with chronic lung disease or moderate to severe asthma People who have serious heart conditions People who are immunocompromised
Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune de ciencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications People with severe obesity (body mass index [BMI] of 40 or higher) People with diabetes People with chronic kidney disease undergoing dialysis People with liver disease

 Older Adults

 People with Asthma

 At Risk For Severe Illness

 People with HIV

 People with Liver Disease

 People Who Are Immunocompromised

COVID-19: Are You at Higher Risk for Severe Illness?

Resources
ASL Video Series: COVID-19: Are You at Higher Risk for Severe Illness? Learn how you can help protect yourself if you are at higher risk of severe illness from COVID-19 
Page last reviewed: May 14 2020
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 26 of 56

EXHIBIT 6 Remarks by President Trump, Vice President Pence,
and Members of the Coronavirus Task Force (Mar. 25, 2020)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 27 of 56

REMARKS
Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press
Brie ng
HEALTHCARE
Issued on: March 25, 2020
★★★
James S. Brady Press Briefing Room
5:54 P.M. EDT
THE PRESIDENT: Thank you very much. So, nice to be with you. America continues to gain ground in the war against the virus.
I want to thank the American people for answering the call, following our guidelines, and making the sacrifices required to overcome this terrible threat. More aggressively we commit to social distancing — so important. Social distancing — such an important phrase. And we do it right now. The more lives we can save and the sooner we can eventually get people back to work, back to school, and back to normal.
And there are large sections of our country — probably can go back much sooner than other sections. And we’re obviously looking at that also. People are asking, “Is that an alternative?” And I say, “Absolutely, it is an alternative.”
I have now approved major disaster declarations for New York, California, Washington, Iowa, Louisiana, Texas, and Florida. That has great significance, as you know, and legal significance.
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So, each person in every place — no matter what county, what community, what state — can work with us to ensure that we prevent the spread of this virus to others. So thank you.
THE VICE PRESIDENT: Well done.
Doctor?
DR. FAUCI: Thank you, Mr. Vice President. I just want to spend a couple of minutes telling you a little bit about some information that I got on our weekly call that we have at least once a week with the W- — with WHO, which is led by Dr. Tedros and Mike Ryan, who’s the point man there, to give us some information. And, in that regard, I want to apologize for my curt response to you when you asked me about the China deal because I shouldn’t have done that. That’s not my style.
But what I really wanted to say is that my job is that I’m a scientist, I’m a physician, and I’m a public-health person and I don’t like to get involved in that stu .
So, anyway, getting back to the WHO. So we learned some really interesting information because, obviously, the other countries, like China and others, have — had been hit prior that we did.
One of the things that was striking to me — and I just throw it out because it’s something that we will face. We’re not facing it now, but we will face — our Chinese colleagues are very concerned because they went through the entire cycle of the curve to come down. And they have very, very few cases. But what they’re starting to see as they’re relaxing the constraints on travel, that they’re getting imported cases. And they wanted to warn us that when we get successful, make sure you very carefully examine how you’re going to release the constraints on inputs.
So I know we’re going to be successful in putting this under control, but I think we’re going to have to remember, we don’t want to import cases in. That’s the first thing for today.
The second thing that was important is that — it was something that Dr. Birx mentioned. And that is, when you look at the inflection of the curves, we now have multiple di erent countries that have gone through various phases of their individual outbreaks and you could learn something from them about where you are in your own outbreak.
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For example, when China went up, what happened is they just didn’t turn around. They went from going to — I’ll just take an arbitrary number — 500 new cases a day. The next day, it was 1,000 cases, then 1,500, and then 2,000. But once the number of new cases each day starts to flatten out, that’s when you get to that point where the inflection goes down.
So if you — what — things we want to look for are the things that Dr. Birx had mentioned. That doesn’t mean you declare victory when it does that, but you know you’re at least on the way to where you want to go. And I think that’s really very important.
The third and final thing that I think gets back to the question that many of you in the audience have asked of us, is about: Would this possibly become a seasonal cyclic thing? And I’ve always indicated to you that I think it very well might.
And the reason I say that is that what we’re starting to see now in the Southern Hemisphere — in southern Africa and in the Southern-Hemisphere countries — is that we’re having cases that are appearing as they go into their winter season. And if, in fact, they have a substantial outbreak, it will be inevitable that we need to be prepared that we’ll get a cycle around the second time.
What does that mean for us and what we’re doing? It totally emphasizes the need to do what we’re doing in developing a vaccine, testing it quickly, and trying to get it ready so that we’ll have a vaccine available for that next cycle. In addition, to do the randomized controlled trials of drugs, so that we will have a menu of drugs that we have shown to be e ective and shown to be safe. Because I know we’ll be successful in putting this down now, but we really need to be prepared for another cycle. And what we’re doing, I believe, will prepare us well.
Thank you.
THE VICE PRESIDENT: Thanks, Doctor. We’ll take a few questions. Please.
Q Mr. Vice President, on ventilators, some really important reporting from the Center of Public Integrity today. They suggested that there’s only 16,000 in the National Stockpile. Can you just give us some clarity: How many ventilators do you have the National Stockpile? Who else is making them? And how long will it take for them to make the critical mass? Because based on the Center for Public Integrity, it appears there aren’t enough and people are doing to die as a result.
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EXHIBIT 7 CDC Director Warns Second Wave of Coronavirus
Might be ‘More Difficult” (Apr. 21, 2020) published by the Hill
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 31 of 56

CDC director warns second wa coronavirus might be 'more di
BY ZACK BUDRYK - 04/21/20 04:51 PM EDT

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00:03 / 00:35
A potential second wave of the novel coronavirus late in the year would likely be more deadly, as it would overlap with lu season, Centers for Disease Control and Prevention (CDC) head Robert Red ield told The Washington Post on Tuesday.
“There’s a possibility that the assault of the virus on our nation next winter will actually be even more di icult than the one we just went through,” Red ield told the Post. “And when I’ve said this to others, they kind of put their head back, they don’t understand what I mean.”
Red ield said two coinciding respiratory outbreaks would strain the nation’s health care system even further than the current pandemic, which has been marked by shortages of ventilators, test kits and personal protective equipment.
Americans can make such a scenario less likely, he said, by keeping up to date on lu vaccinations, which he said “may allow there to be a hospital bed available for your mother or grandmother that may get coronavirus.”
Governors detail frustrations with Trump over COVID-19 supplies Overnight Health Care: White House shifts focus from coronavirus |...
Red ield said the U.S. was spared a much worse COVID-19 outbreak because the coronavirus hit the nation when the seasonal lu was already on the decline. Had they hit at the same time, “it could have

Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 32 of 56

VIEW ALL

been really, really, really, really di icult in terms of health capacity,” he said.
The 2009 swine lu pandemic followed a similar trajectory, with an initial wave in spring and then a second in fall and winter, when lu season in the U.S. typically takes place.
The CDC head told the Post that federal and state o icials should use the months ahead to scale up their testing capacity for after more widespread restrictions are lifted as well as their ability to ind anyone with whom a con irmed case has interacted. O icials must also continue to stress the importance of social distancing even after the restrictions end, Red ield said.
TAGS THE WASHINGTON POST ROBERT REDFIELD CORONAVIRUS FLU SEASON PANDEMIC SOCIAL DISTANCING PERSONAL PROTECTIVE EQUIPMENT

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Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 33 of 56

EXHIBIT 8 Governor Roy Cooper’s Exec. Order No. 141
(May 20, 2020)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 34 of 56

~fair of ~nr±lf filarnlina
ROY COOPER
GOVERNOR
May 20, 2020
EXECUTIVE ORDER NO. 141
EASING RESTRICTIONS ON TRAVEL, BUSINESS OPERATIONS, AND MASS GATHERINGS: PHASE 2
WHEREAS, on March 10, 2020, the undersigned issued Executive Order No. 11 6 which declared a State of Emergency to coordinate the State' s response and protective actions to address the Coronavirus Disease 20 19 ("COVID-1 9") public health emergency and provide for the health, safety, and welfare ofresidents and visitors located in North Carolina; and
WHEREAS, on March 11, 2020, the World Health Organization declared COVID-1 9 a global pandemic; and
WHEREAS, on March 13, 2020, the President of the United States issued an emergency declaration for all states, tribes, territories, and the District of Columbia, retroactive to March I , 2020, and the President declared that the COVID- 19 pandemic in the United States constitutes a national emergency; and
WHEREAS, on March 25, 2020, the President approved a Major D isaster Declaration, FEMA-4487-DR, for the State of North Carolina; and
WHEREAS, in responding to the COVID-1 9 pandemic, and for the purpose of protecting the health, safety, and welfare of the people of North Carolina, the undersigned has issued Executive Order Nos. 11 6-1 22, 124- 125, 129- 13 1, 133-136, and 138-140; and
WHEREAS, more than twenty thousand people in North Carolina have had laboratoryconfirmed cases of COVID-1 9, and hundreds of people in North Carol ina have died from the disease; and
WHEREAS, hospital administrators and health care providers have expressed concerns that unless the spread of COVID- 19 is limited, existing health care faci lities may be insufficient to care for those who become sick; and
WHEREAS, the undersigned and the Secretary of Health and Human Services have directed hospitals, physicians' practices, and other health care entities to undertake significant actions as part of North Carolina' s emergency response to address the COVID-19 pandemic; and
WHEREAS, slowing and controlling community spread of COVID-1 9 is critical to ensuring that the state' s healthcare fac ilities remain ab le to accommodate those who require medical assi stance; and
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 35 of 56

 
 WHEREAS, the continued community spread of COVID-19 within North Carolina requires the state to continue some measures to slow the spread of this virus during the pandemic; and
WHEREAS, since the issuance of executive orders to slow the spread of COVID-19, North Carolina has "flattened the curve" and prevented a surge or spike in cases across the state, and North Carolina has also increased its capacity for testing, tracing and the availability of personal protective equipment ("PPE"); and
WHEREAS, despite the overall stability in key metrics, North Carolina's daily case counts of COVID-19 continue to increase slightly in the context of increased testing, demonstrating the state must remain vigilant in its work to slow the spread of the virus; and
WHEREAS, should there be an increase in the percentage of emergency department visits that are due to COVID-19 like illness, an increase in the number of laboratory-confirmed cases, an increase in the positive tests as a percent of total tests, an increase in COVID-19-related hospitalizations that threaten the ability of the health care system to properly respond, or should the State's ability to conduct testing and tracing be compromised, it may be necessary to reinstate certain restrictions eased by this Executive Order so as to protect the health, safety, and welfare of North Carolinians; and
WHEREAS, the risk of contracting and transmitting COVID-19 is higher in settings that are indoors, where air does not circulate freely and where people are less likely to maintain social distancing by staying six (6) feet apart; and
WHEREAS, the risk ofcontracting and transmitting COVID-19 is higher in settings where people are stationary and in close contact for long periods of time; and
WHEREAS, the risk of contracting and transmitting COVID-19 is higher in gatherings of larger groups of people because these gatherings offer more opportunity for person-to-person contact with someone infected with COVID-19; and
WHEREAS, to lower the risk of contracting and transmitting COVID-19, this Executive Order imposes restrictions on businesses that limit the number of contacts between people, particularly in settings that are indoors, involve people being stationary and in close contact for long periods of time, or are part of mass gatherings; and
WHEREAS, certain types of businesses by their very nature present greater risks of the spread of COVID-19 because of the nature of the activity, the way that people have traditionally acted and interacted with each other in that space, and the duration that patrons stay in the establishment; and
WHEREAS, people in North Carolina are encouraged to use a cloth face covering to reduce the spread of COVID-19, but some populations may experience increased anxiety and fear of bias and being profiled if wearing face coverings in public spaces; and
WHEREAS, if someone is the target of ethnic or racial intimidation as the result of adhering to the mask provision or as a result of the pandemic, they are encouraged to report the matter to law enforcement or another government entity; and
WHEREAS, people in North Carolina must remain flexible to account for the evolving nature and scope of the public health emergency posed by COVID-19, and also return to-in a safe, strategic, and incremental manner-their normal personal and professional activities, to the extent public health circumstances permit; and
WHEREAS, people in North Carolina are encouraged to take on the challenges of living in a community beset by a global pandemic, while also returning to school, work, and social activities in a safe, strategic and incremental manner to help reduce the risk of COVID-19 transmission; and
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 36 of 56

WHEREAS, businesses that are open during the duration of this Executive Order are encouraged to follow the Guidelines for Businesses published by the North Carolina Department of Health and Human Services ("NCDHHS"), available electronically on its website; and
WHEREAS, food service and food availability remain an important component of North Carolina's response to the COVID-19 pandemic, such that food service providers, including restaurants and other dine-in facilities are encouraged to open to the extent practicable to safely provide food and nutrition to people in North Carolina; and
WHEREAS, it is in the interest of the State of North Carolina to provide as many viable avenues as practicable for North Carolina agricultural products to be consumed in-state in order to avoid unnecessary waste in the production of food; and
WHEREAS, the closure of on-premises dining in restaurants has significantly curtailed demand for food sold by restaurants and, therefore, disproportionately harmed workers, farms, and businesses involved in the sale of food through the restaurant supply chain and led to the waste of food produced by such workers, farms, and businesses; and
WHEREAS, because restaurants and grocery stores are served by different supply chains that cannot always be rapidly adjusted, the closure of on-premises dining in restaurants has shifted food demand to grocery stores, taxing the supply chain for grocery stores and leading to higher grocery prices for consumers; and
WHEREAS, reopening restaurants for on-premises dining in a safe, strategic manner should ameliorate the adverse economic effects on workers, farms, and businesses involved in the sale of food through the restaurant supply chain, prevent the waste of food, and reduce stress on the supply chain for grocery stores, thereby lowering grocery prices for consumers; and
WHEREAS, despite the unprecedented nature of the COVID-19 pandemic, people in North Carolina should have the opportunity to enjoy performing arts and competitive sporting events broadcast into their homes; and
WHEREAS, as long as progress continues to be met on the COVID-19 metrics, and as long as health care systems continue to be projected to have sufficient capacity for patient care, commerce that does not raise unreasonable risks of COVID-19 spread may be reopened; and
WHEREAS, with public health requirements in place and face coverings more readily available, personal care, grooming, and tattoo businesses may be reopened in a safe, strategic manner without raising unreasonable risk of COVID-19 spread; and
WHEREAS, Executive Order No. 116 invoked the Emergency Management Act, and authorizes the undersigned to exercise the powers and duties set forth therein to direct and aid in the response to, recovery from, and mitigation against emergencies; and
WHEREAS, pursuant to N.C. Gen. Stat. § l 66A- l 9.1 O(b)(2), the undersigned may make, amend, or rescind necessary orders, rules, and regulations within the limits of the authority conferred upon the Governor in the Emergency Management Act; and
WHEREAS, N.C. Gen. Stat. § 166A-l 9.10(b)(3) authorizes and empowers the undersigned to delegate Gubernatorial vested authority under the Emergency Management Act and to provide for the sub-delegation of that authority; and
WHEREAS, N.C. Gen. Stat.§ l66A-l9.I0(b)(4) gives the undersigned the authority to "cooperate and coordinate" with the President of the United States; and
WHEREAS, pursuant to N.C. Gen. Stat.§ 166A-l 9.12(3)(e), the Division of Emergency Management must coordinate with the State Health Director to revise the North Carolina Emergency Operations Plan as conditions change, including making revisions to set "the appropriate conditions for quarantine and isolation in order to prevent the further transmission of disease," and following this coordination, the Emergency Management Director and the State
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 37 of 56

Health Director have recommended that the Governor develop and order the plan and actions identified in this Executive Order; and
WHEREAS, pursuant to N.C. Gen. Stat.§ 166A-19.23 in conjunction with N.C. Gen. Stat. §§ 75-37 and 75-38, the undersigned may issue a declaration that shall trigger the prohibitions against excessive pricing during states of disaster, states of emergency or abnormal market disruptions; and
WHEREAS, pursuant to N.C. Gen. Stat.§ 166A-19.30(a)(l), the undersigned may utilize all available state resources as reasonably necessary to cope with an emergency, including the transfer and direction of personnel or functions of state agencies or units thereof for the purpose of performing or facilitating emergency services; and
WHEREAS, pursuant to N.C. Gen. Stat. § 166A-19.30(a)(2), the undersigned may take such action and give such directions to state and local law enforcement officers and agencies as may be reasonable and necessary for the purpose of securing compliance with the provisions of the Emergency Management Act and with the orders, rules, and regulations made thereunder; and
WHEREAS, pursuant to N.C. Gen. Stat. § 166A-19.30(c)(i), the undersigned has determined that local control of the emergency is insufficient to assure adequate protection for lives and property of North Carolinians because not all local authorities have enacted such appropriate ordinances or issued such appropriate declarations restricting the operation of businesses and limiting person-to-person contact, thus needed control cannot be imposed locally; and
WHEREAS, pursuant to N.C. Gen. Stat. § l66A-I9.30(c)(ii), the undersigned has determined that local control of the emergency is insufficient to assure adequate protection for lives and property of North Carolinians because some but not all local authorities have taken implementing steps under such ordinances or declarations, if enacted or declared, in order to effectuate control over the emergency that has arisen; and
WHEREAS, pursuant to N.C. Gen. Stat. § I66A-l9.30(c)(iii), the undersigned has determined that local control of the emergency is insufficient to assure adequate protection for lives and property of North Carolinians because the area in which the emergency exists spreads across local jurisdictional boundaries and the legal control measures of the jurisdictions are conflicting or uncoordinated to the extent that efforts to protect life and property are, or unquestionably will be, severely hampered; and
WHEREAS, pursuant to N.C. Gen. Stat. § 166A-19.30(c)(iv), the undersigned has determined that local control of the emergency is insufficient to assure adequate protection oflives and property of North Carolinians because the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it; and
WHEREAS, N.C. Gen. Stat.§ 166A-19.30(c) in conjunction with N.C. Gen. Stat.§ 166A19.31 (b)(1) authorizes the undersigned to prohibit and restrict the movement of people in public places; and
WHEREAS, N.C. Gen. Stat.§ 166A-19.30(c) in conjunction with N.C. Gen. Stat.§ 166A19.3 l(b)(2) authorizes the undersigned to prohibit and restrict the operation of offices, business establishments, and other places to and from which people may travel or at which they may congregate; and
WHEREAS, N.C. Gen. Stat.§ 166A-l 9.30(c) in conjunction with N.C. Gen. Stat.§ 166Al 9.31 (b)(5) authorizes the undersigned to prohibit and restrict other activities or conditions, the control of which may be reasonably necessary to maintain order and protect lives or property during a state of emergency; and
WHEREAS, pursuant to N.C. Gen. Stat. § 166A-19.30(c)(l), when the undersigned imposes the prohibitions and restrictions enumerated in N.C. Gen. Stat. § 166A-19.3l(b), the
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undersigned may amend or rescind the prohibitions and restrictions imposed by local authorities; and
WH EREAS, pursuant to N.C. Gen. Stat. § 166A-l 9.30(a)(2), during a Gubematorially declared State of Emergency, the undersigned has the power to "give such directions to State and local law enforcement officers and agencies as may be reasonable and necessary for the purpose of seeming compliance with the provisions of this Arti cle."
NOW, THEREFORE, by the authority vested in me as Governor by the Constitution and the laws of the State of North Caro lina, IT IS ORDERED:
Section 1. Definitions. In this Executive Order:
1. " Bars" means establishments that are not eating establishments or restaurants as defined in N.C. Gen. Stat. §§ 18B-1000(2) and 18B-1000(6), that have a permit to sell alcoho lic beverages for onsite consumption under N.C. Gen. Stat. § l 8B-1 00 1, and that are principally engaged in the business of selling alcoholic beverages for onsite consumption.
2. "Core Signage. Screenin g. and Sanitation Req uirements" are the fol lowing actions which establishments open to the public under the terms of this Executive Order must foll ow, namely:
a. Post the Emergency Maximum Occupancy in a noticeable place.
b. Post signage reminding attendees, customers, and workers about social distancing (staying at least six (6) feet away from others) and requesting that people who have been symptomatic with fever and/or cough not enter.
c. Conduct daily symptom screening of workers, using a standard interview questi onnaire of symptoms, before workers enter the workplace.
d. Immediately isolate and remove sick workers.
e. Perform frequent and routine environmental cleaning and disinfection of high-touch areas with an EPA-approved disinfectant for SARS-CoV-2 (the virus that causes COVID-1 9).
NCDHHS has prepared sample signs and a san1ple screening checkl ist questionnaire, available at https://covid 19.ncdhhs.i:.rnv/guidance, that may be used to meet some of the requirements above. Businesses or operations do not need to use the NCDHHS samp le signs and questionnaires to meet the requirements of this Executive Order.
3. "Emergency Maximum Occupancy" is defined in Section 6.
4. "Face Covering" means a covering of the nose and mouth by wearing a covering or mask for the purpose of ensuring the phys ical health or safety of the wearer or others as defined in Session Law 2020-3 s. 4.3(a). In the context of the COVID-1 9 emergency, the Face Covering works to protect other people more than the wearer.
5. "Personal Care. Grooming. and Tattoo Businesses" means businesses that (a) do not provide health care services; and (b) either (i) have workers directly touch customers or (ii) have a piece of equipment (other than a touchscreen) repeatedly come into contact directly with customers' skin. This includes, but is not lim ited to, barber shops, beauty salons (including but not limited to waxing and hair removal centers), hair salons, nail salons, man icure or pedicure providers, tattoo parlors, tanning salons, and massage therapists.
6. "Recommendations to Promote Social Distancing and Reduce Transmission" are defi ned in Section 3(8) below.
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7. "Restaurants" means permitted food establishments, under N.C. Gen. Stat. § 130A248, and other establishments that both prepare and serve food. This includes, but is not limited to, restaurants, cafeterias, food halls, dining halls, food courts, and food kiosks. This includes not only free-standing locations but also locations within other businesses or facilities, including, but not limited to airports, shopping centers, educational institutions, or private or members-only clubs where food and beverages are permitted to be consumed on premises.
8. "Retail Business" means any business in which customers enter a space to purchase goods or services, including but not limited to grocery stores, convenience stores, large-format retail stores, pharmacies, banks, and ABC stores. This also includes, but is not limited to, (i) retail establishments operated by the state, its political subdivisions, or agencies thereof, and (ii) state agencies under the jurisdiction of the undersigned which have a public-facing component offering a service, such as the Division of Motor Vehicles, the Department of Revenue, and shops in Department ofNatural and Cultural Resources facilities.
Section 2. High-Risk Individuals Encouraged to Stay at Home.
People who are at high risk of severe illness from COVID-19 are very strongly encouraged to stay home and travel only for absolutely essential purposes. The Centers for Disease Control and Prevention ("CDC") defines high-risk individuals as people 65 years or older and people of any age who have serious underlying medical conditions, including people who are immunocompromised or who have chronic lung disease, moderate-to-severe asthma, serious heart conditions, severe obesity, diabetes, chronic kidney disease undergoing dialysis, or liver disease.
Section 3. Activities Outside the Home.
For the reasons and pursuant to the authority set forth above, the undersigned orders as follows:
A. Stay at Home Order Lifted. The Stay at Home Order in Executive Order No. 138 is lifted. Individuals are strongly encouraged to telework to the greatest extent permissible by their employer.
B. Follow the Recommendations to Promote Social Distancing and Reduce Transmission. When people are outside their homes, they are strongly encouraged to take the following Recommendations to Promote Social Distancing and Reduce Transmission:
1. Maintain at least six (6) feet social distancing from other individuals, with the exception of family or household members.
2. Wear a cloth Face Covering when leaving home and wear it inside all public settings such as grocery stores, pharmacies, or other retail or public-serving businesses. A Face Covering should also be worn outdoors when you cannot maintain at least six (6) feet distancing from other people with the exception of family or household members. These coverings function to protect other people more than the wearer.
3. Carry hand sanitizer with you when leaving home, and use it frequently.
4. Wash hands using soap and water for at least twenty (20) seconds as frequently as possible.
5. Regularly clean high-touch surfaces such as steering wheels, wallets, and phones.
6. Stay at home if sick.
Section 4. Exemptions from This Executive Order.
Worship, religious, and spiritual gatherings, funeral ceremonies, wedding ceremonies, and other activities constituting the exercise of First Amendment rights are exempt from all the
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requirements of this Executive Order and Executive Order Nos. 121 and 138, notwithstanding any other provision of this Executive Order or of Executive Order Nos. 121 and 138.
The undersigned strongly urges that entities and individuals engaging in these exempted activities follow the Recommendations to Promote Social Distancing and Reduce Transmission, avoid exceeding Emergency Maximum Occupancy in the places where they meet, and avoid holding Mass Gatherings.
Section 5. Structure of This Executive Order.
The restrictions in this Executive Order are tailored for particular situations where COVID-19 can spread. As a result, the restrictions in this Executive Order fall into three categories:
• Section 6 establishes restrictions for certain listed kinds of businesses and operations. The restrictions in this Section ensure that there is not overcrowding and spread people out in each space to reduce the risk from COVID-19.
• Section 7 establishes a Mass Gathering limit. This limit controls the risk of COVID-19 spread in events or convenings that are not covered by the specific restrictions in Section 6.
• Section 8 keeps closed certain kinds of businesses and operations because those types of businesses, by their very nature, present greater risks of the spread of COVID-19. These greater risks are due to factors such as people traditionally interacting in that space in a way that would spread COVID-19, shared equipment that is repeatedly touched by customers or attendees, or a business model that involves customers or attendees remaining in a confined indoor space over a sustained period.
Section 6. Restrictions on Certain Businesses and Operations.
For the reasons and pursuant to the authority set forth above, the undersigned orders as follows:
A. Prohibition. To control the spread of COVID-19 and protect lives during the State of Emergency, this Section lists restrictions on the operations of business establishments and other places to or from which people may travel or at which they may congregate. Businesses or operations within the scope of this Section are prohibited from operating unless they follow the restrictions stated in this Section.
B. Retail Businesses.
1. Requirements for Retail Businesses. While this Executive Order is in effect, all open Retail Businesses must do all of the following.
a. Limit customers inside the store to Emergency Maximum Occupancy. Under this Executive Order, the Emergency Maximum Occupancy for a Retail Business is the lowest number produced by applying the following two tests:
1. Limit the number of customers in the store to fifty percent (50%) of stated fire capacity (or, for spaces without a stated fire capacity, no more than twelve (12) customers for every one thousand (1000) square feet of the location's total square footage, including the parts of the location that are not accessible to customers or guests).
11. Limit the number of people in the store so that everyone can stay six (6) feet apart.
b. Mark six (6) feet of spacing in lines at point of sale and in other high-traffic areas for customers, such as at deli counters and near high-demand products.
c. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order.
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C. Restaurants.
1. Restaurants May Open for On-Premises Service. During the effective period ofthis Executive Order, restaurants may allow on-premises consumption of food and beverages. Restaurants must meet the sanitation requirements of this Section even if they are open only for take-out or delivery service.
2. Requirements. While this Executive Order is in effect, all open restaurants must do all of the following:
a. Limit customers in indoor and outdoor seating areas to Emergency Maximum Occupancy. Under this Executive Order, the Emergency Maximum Occupancy for a restaurant is the lowest number produced by applying the following three tests:
1. Limit the number of customers in the restaurant to fifty percent (50%) of stated fire capacity (or, for spaces without a stated fire capacity, no more than twelve (12) customers for every one thousand (1000) square feet of the location's total square footage, including the parts of the location that are not accessible to customers or guests).
11. Limit the number of people in the space so that groups can stay six (6) feet apart.
iii. Arrange the restaurant so that customers sitting at a table are not within six (6) feet of any customers sitting at another table. Moreover, each group of customers sitting at a counter should be separated from other groups by six (6) feet.
b. Limit customers at tables so that no more than ten (10) people shall be seated together at the same table. However, more than ten (10) people may sit together at the same table if they are members of the same household.
c. Workers in Restaurants are strongly encouraged to wear Face Coverings when they are within six (6) feet of another person. Notwithstanding this general rule, people whose religious beliefs prevent them from wearing a Face Covering, people who cannot wear a Face Covering due to a medical or behavioral health condition, and people who are under twelve (12) years of age are excepted from the requirement to wear a Face Covering. Children under two (2) years of age shall not wear a Face Covering so that their breathing may not be inhibited.
d. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order, along with the following additional requirements:
1. Increase disinfection during peak times or high customer density times, and disinfect all shared objects (e.g., dining tables, booths, counters, payment terminals, tables, countertops/bars, receipt trays, condiment holders, and reusable menus) between each use.
11. Promote frequent use of hand-washing and hand sanitizer for wait staff and food service staff throughout the shift and upon reporting to work. Hand washing must at least meet the requirements specified in the North Carolina Food Code Manual.
e. Mark six (6) feet of spacing in lines at high-traffic areas for customers, such as a cash register or place where customers wait to be seated at their table.
3. Clarifications. People sitting at a table need not be members of the same household and do not need to stay six (6) feet apart. Moreover, this Executive Order does not require servers and wait staff to stay six (6) feet away from customers.
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4. Miscellaneous. A restaurant that operates consistent with the terms of this Subsection of this Executive Order shall continue to be considered an "Essential Business" for the purpose of N.C. Sess. L. 2020-03, Sec. 4.14(a) to the extent that COVID-19-related claims are made against the restaurant.
D. Personal Care, Grooming, and Tattoo Businesses.
1. Personal Care, Grooming, and Tattoo Businesses May Open. During the effective period of this Executive Order, Personal Care, Grooming, and Tattoo Businesses may operate, but must be in compliance with this Section.
2. Requirements. While this Executive Order is in effect, all open Personal Care, Grooming, and Tattoo Businesses must do all of the following:
a. Limit customers inside the store to Emergency Maximum Occupancy. Under this Executive Order, the Emergency Maximum Occupancy for a Personal Care, Grooming, and Tattoo Business is the lowest number produced by applying the following two tests:
1. Limit the number of customers in the store to fifty percent (50%) of stated fire capacity (or, for spaces without a stated fire capacity, no more than twelve (12) customers for every one thousand (1000) square feet of the location's total square footage, including the parts of the location that are not accessible to customers or guests).
11. Limit the number of people in the store so that patrons can stay six (6) feet apart.
b. Arrange seating so that groups of customers are separated from one another by six (6) feet.
c. Workers in Personal Care, Grooming, and Tattoo Businesses shall wear Face Coverings when they are within six (6) feet ofanother person. Notwithstanding this general requirement, people whose religious beliefs prevent them from wearing a Face Covering, people who cannot wear a Face Covering due to a medical or behavioral condition, and people who are under twelve (12) years of age are excepted from the requirement to wear a Face Covering. Children under two (2) years of age shall not wear a Face Covering so that their breathing may not be inhibited.
d. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order, except for the requirement to have signage remind people about staying six (6) feet apart.
e. Ensure that all equipment that comes into direct personal contact with customers and all furniture in service areas (such as chairs, capes, and the shampooing area in a barber shop or salon) is completely cleaned and disinfected between each customer.
f. Mark six (6) feet of spacing in lines at point of sale and in other high-traffic areas for customers, such as at cash registers and waiting areas.
3. Recommendation. Patrons in Personal Care, Grooming, and Tattoo Businesses are strongly encouraged to wear Face Coverings when they are within six (6) feet of another person, unless they cannot wear Face Coverings due to religious beliefs, age, or a medical or behavioral health condition.
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E. Pools.
1. Indoor and Outdoor Pools May Open. During the effective period of this Executive Order, indoor or outdoor pool facilities (whether stand-alone or part of other facilities) may operate, but must be in compliance with this Subsection.
2. Requirements. While this Executive Order is in effect, all open pool facilities must do all of the following:
a. Limit the user capacity in the pool to no more than 50% ofmaximum occupancy as determined by fire code (or, when fire code number is not known, thirty-three (33) people per one thousand (1000) square feet in deck areas, wading pools and splash pads), and a maximum occupancy in the water often (10) people per one thousand (1000) square feet. This user capacity is the Emergency Maximum Occupancy for the pool facility.
b. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order.
3. This Subsection applies only to shared pools in commercial settings or at residential complexes. It does not apply to family pools at people's homes.
F. Child Care Facilities.
1. Child Care Facilities May Open and May Serve All Children. Child care facilities may open or reopen, and they may serve all children in North Carolina. All references to "covered children" in Executive Order Nos. 130 and 138 shall refer to all children.
2. Requirements. Child care facilities that are open or reopened consistent with the Executive Order must abide by the following requirements:
a. Follow all applicable NCDHHS guidelines.
b. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order.
c. Conduct a daily health screening on all individuals who are entering the building.
d. Immediately isolate sick workers and children from the rest of the facility and send them home.
e. Have a plan to work with local health departments to identify close contacts of confirmed cases in the child care setting.
f. Before reopening, child care facilities shall submit to NCDHHS the Emergency Child Care Provider Application. NCDHHS must approve the Emergency Child Care Provider Application before the child care facility can reopen.
3. Relationship to Previous Executive Orders. Subdivisions 1 and 2(a) of this Subsection completely replace Subsections (C) and (D) of Section 2 ofExecutive Order No. 130. Otherwise, Section 2 of Executive Order No. 130 and Section 3 of Executive Order No. 139 shall remain in effect through 5:00 pm on June 26, 2020. The effective date provisions of those Executive Orders are amended accordingly.
G. Day Camps and Overnight Camps.
1. Requirements for Day Camps.
a. Follow all applicable NCDHHS guidelines.
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b. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order.
c. Conduct a daily health screening on all individuals who are entering the building.
d. Immediately isolate sick workers and children from the rest of the facility and send them home.
e. Public schools operating day camps and programs may open for the purpose of the day camp or program, but must otherwise remain closed to the general public.
f. Have a plan to work with local health departments to identify close contacts of confirmed cases in the camp setting.
2. Requirements for Overnight Camps.
a. Follow all applicable NCDHHS guidelines.
b. Conduct daily symptom screening of workers.
c. Immediately isolate sick campers and staff away from others.
d. Ifa camper or staff member has been diagnosed with COVID-19 or is presumed positive by a medical professional due to symptoms, the camper or staff member should be isolated away from other campers and staff until they meet the CDC criteria for release from isolation:
1. No fever for at least 72 hours since recovery (without the use of feverreducing medicine); and
ii. Other symptoms have improved (e.g., coughing, shortness of breath); and
iii. At least ten ( I 0) days have passed since first symptoms.
e. Have a plan to work with local health departments to identify close contacts of confirmed cases in a camp setting
f. Perform ongoing and routine environmental cleaning and disinfection of hightouch areas (e.g., doors, doorknobs, rails) with an EPA approved disinfectant for SARS-CoV-2 (the virus that causes COVID-19), increasing disinfection during peak times or high camper density times.
3. Programs and camps for adults are not covered by this Section.
Section 7. Mass Gatherings.
For the reasons and pursuant to the authority set forth above, the undersigned orders as follows:
A. Prohibition on Mass Gatherings.
I. Prohibition. Mass Gatherings are prohibited. "Mass Gathering" means an event or convening that brings together more than ten ( I 0) people indoors or more than twenty-five (25) people outdoors at the same time in a single confined indoor or outdoor space, such as an auditorium, stadium, arena, or meeting hall. This includes parades, fairs, and festivals. In publicly accessible indoor facilities, the Mass Gathering limit applies per room of the facility. A household where more than ten ( I 0) people reside is not a Mass Gathering.
The outdoor Mass Gathering limit of twenty-five (25) people applies to groups of people that may gather together in a park, and on a beach or trail.
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2. Exceptions from Prohibition on Mass Gatherings. Notwithstanding Subsection (A)( I) above:
a. The prohibition on Mass Gatherings does not apply to any of the restricted businesses and operations identified in Section 6 of this Executive Order, because in those situations, transmission of COVID-19 will be controlled through the measures specifically tailored for each situation that are listed in those Sections. The prohibition on Mass Gatherings also does not apply to educational institutions or government operations.
b. The prohibition on Mass Gatherings does not include gatherings for health and safety, to look for and obtain goods and services, for work, or for receiving governmental services. A Mass Gathering does not include normal operations at airports, bus and train stations or stops, medical facilities, libraries, shopping malls, and shopping centers. However, in those settings, people must follow the Recommendations to Promote Social Distancing and Reduce Transmission as much as possible, and they should circulate within the space so that there is no sustained contact between people.
B. Parks, Trails, and Beaches.
1. Each group of people within a park, trail, or beach must be limited so that the group, counted on its own, does not exceed the Mass Gathering limit.
2. All operators of open public or private parks must meet the following requirements:
a. Post signage reminding attendees, customers, and workers about social distancing (staying at least six (6) feet away from others) and requesting that people who have been symptomatic with fever and/or cough not enter.
b. Conduct daily symptom screening of workers, using a standard interview questionnaire of symptoms, before workers enter the workplace.
c. Immediately isolate and remove sick workers.
d. Perform frequent and routine environmental cleaning and disinfection of high-touch areas with an EPA-approved disinfectant for SARS-CoV-2 (the virus that causes COVID-19).
3. Public Playgrounds Remain Closed. Because public playground equipment may increase spread of COVID-19, public playgrounds will remain closed during the effective phase ofthis Executive Order, including public playground equipment located in parks.
C. Drive-ins. Events are not prohibited Mass Gatherings if the participants all stay within their cars, such as at a drive-in movie theater.
D. Households. A household where more than ten ( 10) people reside is not a Mass Gathering.
Section 8. Orders of Closure.
For the reasons and pursuant to the authority set forth above, the undersigned orders as follows:
A. Entertainment and Fitness Facilities.
1. In addition to the restrictions on Mass Gatherings identified in Section 7 of this Executive Order, the following entertainment and fitness facilities that operate within a confined indoor or outdoor space and do not offer a retail or dining component are ordered to close. Any retail or dining component within the following entertainment and fitness facilities may operate solely for retail or dining, but those components must comply with the restrictions set out in Section 6 of this Executive Order.
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2. Entertainment and fitness facilities restricted by this Subsection include, but are not limited to, the following types of business:
• Bingo Parlors, including bingo sites operated by charitable organizations • Bowling Alleys • Indoor Exercise Facilities (e.g., yoga studios, dance studios, martial arts facilities,
indoor trampoline and rock climbing facilities) • Gyms • Indoor Fitness Facilities, including but not limited to indoor basketball courts,
volleyball courts, racquetball courts, squash courts, and tennis courts • Health Clubs and Fitness Centers • Movie Theaters • Skating Rinks • Gaming and business establishments which allow gaming activities (e.g., video
poker, gaming, sweepstakes, video games, arcade games, pinball machines or other computer, electronic or mechanical devices played for amusement) • Venues for Receptions or Parties • Museums • Amusement Parks • Bars • Night Clubs, Dance Halls, or Music Halls where patrons are not seated.
B. Limitations of this Executive Order. This Executive Order solely directs that bars are not to serve alcoholic beverages for onsite consumption, and this Executive Order does not direct the closure of retail beverage venues that provide for the sale of beer, wine, and liquor for off-site consumption only. It also does not require the closure of production operations at breweries, wineries, or distilleries.
C. Training of Professional and Collegiate Athletes. Professional athletes and athletes performing on an agreement with an educational institution to receive a scholarship or other benefit may train within indoor fitness facilities that otherwise would be closed under Subsection A above, provided they do not exceed the Mass Gathering limit.
D. ABC Commission. Ifthe Alcoholic Beverage Control Commission (the "ABC Commission") identifies other state laws, regulations, and policies that may affect bars, restaurants, and other dining establishments identified in this Executive Order, it is directed to inform the Office of the Governor in writing. Upon written authorization from the Office ofthe Governor, the ABC Commission may interpret flexibly, modify, or waive those state laws, regulations and policies, as appropriate, and to the maximum extent permitted under applicable state and federal law, to effectuate the purposes of this Executive Order.
Section 9. Entertainment and Sporting Events in Large Venues.
A. Intent. The intent ofthis Section is to permit venues to hold sporting or entertainment events, for the recording of and broadcast to the public, if the venue is of sufficient size to allow people to flow in and out of the venue in a way that would avoid creating a risk of spreading COVID19.
B. Exception. Therefore, as an exception to the closure of entertainment and fitness facilities in Section 8 above, an entertainment or sporting venue with at least two entrances and exits and a stated fire capacity of at least five hundred (500) may hold a performance by entertainers, performers, or athletes. The venue must control the flow of people through lobbies and other common spaces to allow social distancing and avoid the spread of COVID-19.
C. Treatment under Mass Gathering Limit. In this situation, and only in this situation: (I) entertainers, performers, and athletes, along with coaches, training, support, and broadcast staff, shall not count toward the Mass Gathering limit and (2) employees and other workers at facilities where entertainment and sporting events occur also shall not count toward the Mass Gathering limit.
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D. Restrictions on Spectators. Spectators or other attendees at any sporting or entertainment events allowed under this Section must be no more than the Mass Gathering limit of ten (10) people indoors or more than twenty-five (25) people outdoors. Moreover, any entertainers or athletes must stay six (6) feet away from spectators.
E. Requirements for Large Venue Operators. Any venue operator subject to this Section allowing an event permitted by this Section shall:
1. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order.
2. Increase disinfection during peak times or high customer density times, and disinfect all shared objects (e.g., payment terminals, tables, countertops/bars, receipt trays, condiment holders) between use.
3. Immediately isolate and remove sick workers.
4. Any food service at sporting or entertainment events must comply with the restrictions set out in Section 6 of this Executive Order. Bars at sporting or entertainment events must remain closed.
Section 10. Provisions from Previous Executive Orders.
A. The provisions on schools contained in Section 4(E) of Executive Order No. 138 and signed on May 05, 2020 by the undersigned are incorporated by reference into this Executive Order and adopted as if reprinted here in full.
B. The Long Term Care provisions contained in Section 7 of Executive Order No. 138 and signed on May 05, 2020 by the undersigned are incorporated by reference into this Executive Order and adopted as if reprinted here in full.
C. The Local Order provisions contained in Section 8 of Executive Order No. 138 and signed on May 05, 2020 by the undersigned are incorporated by reference into this Executive Order and adopted as ifreprinted here in full. The references to maximum occupancy standards for Retail Businesses in Section 8 of Executive Order No. 138 shall instead refer to the equivalent provisions in this Executive Order.
D. Otherwise, all previous travel restrictions, orders to stay at home, and prohibitions of mass gatherings in Executive Orders Nos. 121 and 138 are no longer in effect and are replaced by this Executive Order.
Section 11. Extension of Price Gouging Period.
For the reasons and pursuant to the authority set forth above, the undersigned orders as follows:
Pursuant to N.C. Gen. Stat. § 166A-l 9.23, the undersigned extends the prohibition against excessive pricing, as provided in N.C. Gen. Stat. §§ 75-37 and 75-38, from the issuance of Executive Order No. 116 through 5:00 pm on June 26, 2020.
The undersigned further hereby encourages the North Carolina Attorney General to use all resources available to monitor reports of abusive trade practices towards consumers and make readily available opportunities to report to the public any price gouging and unfair or deceptive trade practices under Chapter 75 of the North Carolina General Statutes.
Section 12. No Private Right of Action.
This Executive Order is not intended to create, and does not create, any individual right, privilege, or benefit, whether substantive or procedural, enforceable at law or in equity by any party against the State of North Carolina, its agencies, departments, political subdivisions, or other entities, or any officers, employees, or agents thereof, or any emergency management worker (as defined in N.C. Gen. Stat.§ 166A-l 9.60) or any other person.
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Section 13. Savings Clause. If any provision of this Executi ve Order or its application to any person or circumstances
is held invalid by any court of competent jurisdiction, this invalidity does not affect any other provision or application of this Executive Order, which can be given effect without the invalid provision or application. To achieve this purpose, the provisions of this Executive Order are declared to be severable. Section 14. Distribution.
I hereby order that this Executive Order be: (1) distributed to the news media and other organizations calculated to bring its contents to the attention of the general public; (2) promptly filed with the Secretary ofthe North Carolina Department of Public Safety, the Secretary of State, and the superior court clerks in the counties to which it applies, unless t he circumstances of the State of Emergency would prevent or impede such filing; and (3) distributed to others as necessary to ensure proper implementation of this Executive Order. Section 15. Enforcement. A. Pursuant to N .C. Gen. Stat.§ 166A-19.30(a)(2), the provisions of this Executive Order shall
be enforced by state and local law enforcement officers. B. A violation of this Executive Order may be subject to prosecution pursuant to N.C. Gen. Stat.
§ 166A-1 9.30(d), and is punishable as a Class 2 misdemeanor in accordance with N.C. Gen. Stat. § 14-288.20A. C. Nothing in this Executive Order shall be construed to preempt or ovetTule a court order regarding an individual's conduct (e.g. , a Domestic Violence Protection Order or similar orders limiting an individual's access to a particular place). Section 16. Effective Date.
This Executive Order is effective at 5:00 pm on May 22, 2020. This Executive Order shall remain in effect through 5:00 pm on June 26, 2020 unless repealed, replaced, or rescinded by another applicable Executive Order. An Executive Order rescinding the Declaration of the State of Emergency will automatically rescind this Executive Order.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the Great Seal of the State ofNorth Carolina at the Capitol in the City of Raleigh, this 20111 day of May in the year of our Lord two thousand and twenty.
ATTEST:
Secretary of State
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EXHIBIT 9 NCDMW Announces Driver License Office Changes
during COVID-19 Outbreak (last updated June 2, 2020), published by the Department of Transportation
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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6/4/2020

NCDMV Announces Driver License Office Changes during COVID-19 Outbreak

D NCDMV Announces Driver License Office Changes during COVID-19 Outbreak

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NCDMV Announces Driver License Office Changes during COVID-19 Outbreak

RALEIGH - Due to concern for the health and safety of its customers and staff during the coronavirus outbreak, the N.C. Division of Motor Vehicles will consolidate in-person services to offices Large enough to maintain social distancing as defined by the Centers for Disease Control and Prevention (CDC), effective Wednesday, until further notice.
The DMV will close about 60 offices that have the fewest examiner stations or have office setups that make it difficult to provide customers with the recommended space recommended by the CDC. Customers who have appointments at those offices are being contacted and will be given new appointments once those offices re-open. Affected employees will be re-assigned to help staff at about 50 offices that are scheduled to remain open, or to assist at our customer service call centers.
JUNE 2 UPDATE: This PDF Lists which offices remain open and which have now closed.
The open offices will be transitioned to handle appointment-only visits and will Limit the number of customers allowed inside at the same time, depending on the office size. They will also no Longer conduct road tests except for commercial driver's License and medical reassessments. All customers for the driver License offices will be asked to complete a wellness questionnaire provided by the state health officials to mitigate the potential spread of the virus in our driver License offices.
You can check on the status of your Local office on the DMV website.

https://www.ncdot.gov/news/press-releases/Pages/2020/2020-03-17-ncdmv-driver-license-impact-coronavirus.aspx

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6/4/2020

NCDMV Announces Driver License Office Changes during COVID-19 Outbreak

Customers who have appointments at the open offices can keep those appointments,

except for driving tests, and will be given priority if they reschedule their appointments

after offices re-open.

Appointments can be made by calling the DMV customer center at (919) 715-7000. People who can use the offices in Cary. West Raleigh, Clayton and Goldsboro can make online appointments. Other offices are being added to the online aP-P-Ointment system as quickly as possible.

"The safety of our customers and staff is our top priority," said DMV Commissioner Torre Jessup. "So we are putting in place a number of measures to better protect everyone from the spread of the virus. As always, we encourage everyone to conduct their business online if possible. We are all in this together and everyone has an important role to play in the safety and well-being of the public."

The DMV services that can be handled online include License and registration renewals, and ordering a duplicate License and registration card. Customers are encouraged to visit www.ncdot.gov/dmv to review a complete List of what services are available. There are fake DMV websites on the internet so please make sure that you are using a website that includes ".gov."

Other steps being taken include:

• Suspending the use of mobile offices: • Suspending road tests except for commercial driver's License and in-office medical reevaluations: • Postponing DMV Hearings for 30 days, with exceptions for insurance Liability and safety responsibility hearings, which are conducted by phone: and • Salvage and special vehicle inspections conducted by appointment only.

ALL these steps being taken do not apply to DMV License Plate Agencies, as all but one of those is operated either by a contractor or Local government. The status of those offices is available on the DMV website.

For information on how to conduct your critical DMV business or if you have additional questions. please visit www.ncdot.gov/dmv. First or official information regarding COVID19, please visit ncdhhs.gov and governor.nc.gov.

https://www.ncdot.gov/news/press-releases/Pages/2020/2020-03-17-ncdmv-driver-license-impact-coronavirus.aspx

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6/4/2020

NCDMV Announces Driver License Office Changes during COVID-19 Outbreak
***NCDOT***

Last updated 8:31 a.m. on Jun. 2, 2020

Published Date: 3/17/2020

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https://www.ncdot.gov/news/press-releases/Pages/2020/2020-03-17-ncdmv-driver-license-impact-coronavirus.aspx

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EXHIBIT 10 Letter from Disability Rights North Carolina to members of the Davidson County Board of Elections and the General Counsel for the North Carolina State
Board of Elections (Feb. 28, 2020)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 54 of 56

Disability Rights North Carolina

Sent Via E-Mail Only February 28, 2020
Ruth Huneycutt, Director Randall K. Lanier, Chairman Dawn L. Mitchell, Secretary Jon W. Myers, Member Rita C. Haire, Member Lewie Phillips, Member Davidson County Board of Elections
Katelyn Love, General Counsel North Carolina State Board of Elections
Dear Director Huneycutt, General Counsel Love, and others:
Disability Rights NC previously corresponded with you on February 25, 2020 about a voter residing in a skilled nursing facility in Davidson County who sought help from a Multipartisan Assistance Team ("MAT'') exercising her right to vote. Davidson County has not assembled a MAT and has given no indication one will be formed in time to assist the voter in requesting and casting her absentee ballot in the primary election taking place on March 3rd. See N.C. Gen. Stat. § 163-226.3(4); 8 N.C.A.C. 16.0101 (each county board of elections required to establish a MAT to assist individuals with disabilities residing in residential facilities to vote via absentee ballot). While we appreciate the reminder that a voter may request and cast an absentee ballot without the assistance of a MAT, it misses the point. The MATs exist to provide voters with disabilities critical access to the ballot when they do not have readily available guardians or near relatives.
Davidson County can still act to ensure voters with disabilities who do not have a readily available near relative, guardian, or MAT to vote in the primary. The time period for a voter who is sick or has a physical disability to request an absentee ballot in-person remains open and does not expire until 5:00 p.m. on Monday, March 2nd. See N.C. Gen. Stat.§ 163-230.l(b). Cf. N.C. Gen. Stat.§ 163-230.l(a) (the time period for voters not covered by subsection (b) to request an absentee

North Carolina's Protection and Advocacy System

3724 National Drive Suite 100 Raleigh, NC 27612

919-856-2195 877-235-4210 919-856-2244 fax 'ITY users, dial 711

www .disabilityrightsnc.or9

Case 1:20-cv-00457-WO-JLW Document 12-7 Filed 06/05/20 Page 55 of 56

ballot expires at 5:00 p.m. on the Tuesday before the election (February 25, 2020)). In instances where a near relative, guardian, or MAT is not available to assist individuals with disabilities request and vote their absentee ballot, the county board of elections must allow any person other than
(i) an owner, manager, director, employee of the hospital, clinic, nursing home, or rest home in which the voter is a patient or resident; (ii) an individual who holds any elective office under the United States, this State, or any political subdivision of this State; (iii) an individual who is a candidate for nomination or election to such office; or (iv) an individual who holds any office in a State, congressional district, county, or precinct political party or organization, or who is a campaign manager or treasurer for any candidate or political party ... to assist voters in requesting, casting, and witnessing their ballot. See N.C. Gen. Stat. § 163-226.3(4).
It appears employees and volunteers of non-partisan non-profit organizations who are otherwise not a prohibited person (as outlined above), are among those allowed to request and witness an absentee ballot on behalf of voters with disabilities without readily available near relatives, guardians, or MATs. Please advise immediately if you will permit representatives of Disability Rights NC or other non-partisan organizations to assist voters with disabilities residing in facilities in Davidson County with voting via absentee ballot.
sidf--

Holly Stiles Litigation Counsel

Voting Rights Advocate

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EXHIBIT 11 An Act to Provide Aid to North Carolinians in Response to the Coronavirus Disease (COVID-19)
Crisis, Sl. 2020-3 §4.1(c) (May 4, 2020)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 1 of 39

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2019
SESSION LAW 2020-3 SENATE BILL 704
AN ACT TO PROVIDE AID TO NORTH CAROLINIANS IN RESPONSE TO THE CORONAVIRUS DISEASE 2019 (COVID-19) CRISIS.
The General Assembly of North Carolina enacts:
PART I. ECONOMIC SUPPORT
WAIVE ACCRUAL OF INTEREST ON DEFERRED PAYMENT OF CORPORATE INCOME AND FRANCHISE TAX AND INDIVIDUAL INCOME TAX AND EXTEND CERTAIN TAX-RELATED DEADLINES
SECTION 1.1.(a) Interest Waiver. – As a result of the COVID-19 outbreak, the Secretary of Revenue has extended the franchise, corporate income, and individual income tax payment deadline from April 15, 2020, to July 15, 2020, and pursuant to G.S. 105-249.2, the Secretary will not assess a penalty for failure to file a return or pay a tax due as long as the return is filed and the tax due is paid by July 15, 2020. Notwithstanding G.S. 105-241.21(b), the Secretary of Revenue shall also waive the accrual of interest from April 15, 2020, through July 15, 2020, on an underpayment of tax imposed on a franchise, corporate income, or individual income tax return, including a partnership and estate and trust tax return, due from April 15, 2020, through July 15, 2020. The relief from accrual of interest from April 15, 2020, through July 15, 2020, also includes interest imposed pursuant to G.S. 105-163.15 and G.S. 105-163.41 for payments due on or before July 15, 2020.
SECTION 1.1.(b) Refund Request. – For franchise, corporate income, and individual income tax, the statute of limitations for obtaining a refund is extended to July 15, 2020, for refund claims for which the statute of limitations to seek a refund expires on or after April 15, 2020, and before July 15, 2020.
SECTION 1.1.(c) Time-Sensitive Actions. – Certain actions required to be taken by a taxpayer on or after April 1, 2020, and before July 15, 2020, will be considered timely if the request or petition is filed on or before July 15, 2020. This subsection applies to requests for Departmental review under G.S. 105-241.11, petitions for a contested case hearing at the Office of Administrative Hearings under Article 3 of Chapter 150B of the General Statutes and G.S. 105-241.15, and petitions for judicial review under Article 4 of Chapter 150B of the General Statutes and G.S. 105-241.16.
SECTION 1.1.(d) This section is effective when it becomes law.
FLEXIBILITY TO ADMINISTER UNEMPLOYMENT COMPENSATION AND SUTA TAX CREDIT
SECTION 1.2.(a) Chapter 96 of the General Statutes is amended by adding a new section to read: "§ 96-14.15. Emergency unemployment benefits and tax credit to respond to the
coronavirus emergency of 2020. (a) Benefits Payable. – Unemployment benefits are payable in response to the coronavirus emergency in any of the following circumstances:
*S704-v-6*
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SECTION 3F.1.(d) This section is effective when it becomes law and expires 30 days after Executive Order No. 116 is rescinded.

INCREASED ACCESS TO TELEHEALTH UNDER THE MEDICARE PROGRAM SECTION 3F.2. The General Assembly urges the federal Centers for Medicaid and
Medicare Services to provide reimbursement for health care delivered through audio-only communication, such as over the telephone, under the Medicare program in order to reduce barriers and increase access to health care for older adults.

PART IV. CONTINUITY OF STATE GOVERNMENT/REGULATORY RELIEF

EMERGENCY VIDEO NOTARIZATION SECTION 4.1.(a) G.S. 10B-3 is amended by adding a new subdivision to read: "(7a) Emergency video notarization. – An acknowledgement, affirmation, or oath notarization completed by a notary in compliance with the requirements of G.S. 10B-25. Emergency video notarization shall not include a verification proof as defined in G.S. 10B-3(28)." SECTION 4.1.(b) G.S. 10B-10 reads as rewritten:
"§ 10B-10. Commission; oath of office.office; emergency extension. … (b) The Except as provided in subsection (b1) of this section, the appointee shall appear
before the register of deeds no later than 45 days after commissioning and shall be duly qualified by taking the general oath of office prescribed in G.S. 11-11 and the oath prescribed for officers in G.S. 11-7.
(b1) Notwithstanding subsection (b) of this section, if the Secretary grants a commission after March 9, 2020, and before August 1, 2020, the appointee shall have 90 days to appear before the register of deeds to take the general oath of office. A register of deeds may administer the required oath to such appointee using video conference technology provided the appointee is personally known to the register of deeds or the appointee provides satisfactory evidence of the appointee's identity to the register of deeds. As used in this subsection, video conference technology and satisfactory evidence are as defined in G.S. 10B-25.
… (e) If the appointee does not appear before the register of deeds within 45 days of commissioning, the time prescribed in this section, the register of deeds must return the commission to the Secretary, and the appointee must reapply for commissioning. If the appointee reapplies within one year of the granting of the commission, the Secretary may waive the educational requirements of this Chapter."
SECTION 4.1.(c) Part 3 of Article 1 of Chapter 10B of the General Statutes is amended by adding a new section to read: "§ 10B-25. Emergency video notarization.
(a) Notwithstanding any other provision of law, a notary may perform an emergency video notarization using video conference technology provided all of the requirements of this section are satisfied. A notary who is not satisfied that the principal's identity has been proven by satisfactory evidence shall not be required to complete an emergency video notarization. An emergency video notarization shall not change any originality verification requirements for recording with a register of deeds, clerk of superior court, or other government or private office in this State. Nothing in this section shall apply to any notarization under Article 20 of Chapter 163 of the General Statutes.
(b) As used in this section, video conference technology is electronic communication that:
(1) Occurs in real time.

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(1a) Allows direct interaction between the principal seeking the notary's services and the notary so that each can communicate simultaneously by sight and sound through an electronic device or process.
(2) Includes audio with sound clear enough that each participant in the notarial act can hear and understand all other participants.
(3) Has sufficient quality to allow a clear and unobstructed visual observation of the face of each participant, and any identification provided by the principal for a sufficient time to allow the notary to determine if it is satisfactory evidence. The notary shall determine if the time is sufficient.
(4) Is not prerecorded video or audio or both. (5) May be capable of recording by means of one of the following:
a. The video conference technology's recording and storage services. b. An independent video recording device. c. Electronically saved screenshots clearly showing each participant's
face, identification presented by the principal, and the notarized document. (c) The requirement of personal appearance, appear in person before a notary, physical presence, and presence, as those terms are used in this Chapter, are satisfied for the purpose of an emergency video notarization if the notary is physically present in North Carolina, the principal verifies to the notary that he or she is physically present in North Carolina at the time of the notarization, the principal identifies the county where he or she is located at the time of the notarial act, and the principal and notary use video conference technology that complies with the requirements of this section. (d) A notary who has personal knowledge of a principal may rely on the video conference technology to verify the principal's identity unless the notary, in the notary's sole discretion, requires satisfactory evidence. A notary who does not have personal knowledge of a principal shall require satisfactory evidence of the principal's identity. The requirement of satisfactory evidence, as that term is used in this Chapter, is satisfied for the purpose of an emergency video notarization if identification of the principal is based on at least one document that meets all of the following: (1) Is current or, if expired, did not expire prior to March 10, 2020. (2) Is issued by a federal, state, or federal or state-recognized tribal government agency. (3) Bears a photographic image of the principal's face. (4) Has both the principal's signature and a physical description of the principal. (e) The notary shall use video conference technology to observe each principal sign each document that is to be notarized. The principal shall verbally state what documents are being signed for the notarial record. After the document is signed by the principal, the principal or the principal's designee shall do the following: (1) If an original wet-signed notarization on an original wet-signed document is not required, transmit a legible copy of the signed document to the notary by fax or other electronic means on the same day it was signed. The notary shall notarize the document on the same day the notary receives the document, and the notary shall transmit the notarized document back to the principal or the principal's designee by physical delivery, fax, or other electronic means on the same day the notary signed the document. (2) If an original wet-signed notarization on an original wet-signed document is required, transmit a legible copy of the signed document by fax or other electronic means to the notary on the same day on which the document was signed and also deliver the original signed document to the notary by mail or other physical method. The notary shall compare the original document with

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the document transmitted by fax or other electronic means. If the faxed or electronic document is the same as the document received by mail or physical delivery, the notary shall notarize the wet signature on the original document and date the notarial act as of the date of the act observed using video conference technology and promptly transmit the original wet-notarized original document to the principal or the principal's designee by mail or other physical delivery as directed by the principal. (f) If the notarial act is an oath or affirmation, the notary shall administer the oath or affirmation to the affiant using video conference technology. (g) An acknowledgement or jurat certificate for an emergency video notarization shall include all of the following: (1) The North Carolina county in which the notary public was located during the emergency video notarization. (2) The North Carolina county in which the principal stated he or she was physically located during the emergency video notarization. (3) The following statement: I signed this notarial certificate on _________ (Date) according to the emergency video notarization requirements contained in G.S. 10B-25. (h) If an acknowledgement or jurat certificate provided to a notary does not include the statement required by subsection (g) of this section, the notary shall insert the statement. By making or giving a notarial certificate using emergency video notarization, whether or not stated in the certificate, a notary certifies compliance with all the requirements of this section. (i) A notary who performs an emergency video notarization shall record information about the notarization in a notary journal that is the exclusive property of the notary. The journal shall be retained by the notary for at least 10 years and may be maintained in electronic form. The notary shall keep the journal in a secure location and shall not allow another person to make entries in the journal. A notary may surrender the journal to the notary's employer upon termination of employment, but the notary shall also keep and maintain an accurate copy of the journal. (j) At a minimum, for each emergency video notarization, the notary shall include the following information in the journal: (1) The time of day when the notary observed the signing of the document by each principal and was presented with the principal's acceptable form of identification. (2) The date of the completion of the emergency video notarization notarial certificate. (3) The last and first name of each principal. (4) The type of notarial act performed. (5) The type of document notarized or proceeding performed. (6) The type of acceptable form of identification presented including, if applicable, the issuing agency and identification number on the identification presented. (7) The type of video conference technology used during the emergency video notarization. (8) A statement that the notary and each principal could see and hear each other. (9) Whether any other person was present with the principal at the time of signature and if so, the name of that person. (k) A third party involved in a transaction that utilizes an emergency video notarization may require additional information to be included in the journal kept by the notary under subsection (j) of this section such as inclusion of a recording in the notary's journal or the method

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used by the notary to determine that a wet-signed original document is the same as the faxed or electronically submitted document.
(l) As a public official, a notary shall maintain the confidentiality of a principal's documents at all times.
(m) The Secretary may issue interpretive guidance or issue emergency or temporary rules as necessary to ensure the integrity of the emergency video notarization measures provided for in this section.
(n) This section shall expire at 12:01 A.M. on August 1, 2020; provided, however, all notarial acts made in accordance with this section and while this section is in effect shall remain effective and shall not need to be reaffirmed."
SECTION 4.1.(d) This section is effective when it becomes law.

EMERGENCY VIDEO WITNESSING SECTION 4.2.(a) Chapter 10B of the General Statutes is amended by adding a new
Article to read: "Article 3.
"Video Witnessing During State of Emergency. "§ 10B-200. Applicability.
(a) This Article applies to the witnessing and signature of all records, as defined in G.S. 10B-3(19), signed, by a principal physically located in the State of North Carolina, on or after the effective date of this act.
(b) This Article expires August 1, 2020. (c) No action described in this Article constitutes a notarial act, as defined in G.S. 10B-3(11), and no action described in this Article is governed by Article 1 or 2 of this Chapter. "§ 10B-201. Emergency video witnessing. (a) Notwithstanding any general or special law to the contrary, any person who witnesses the signature of a record through video conference technology shall be considered an "in-person" witness, and the record shall be considered to have been signed by the principal signer "in the presence of" such witness, if the video conference technology allows for direct, real-time audio and video interaction between each principal signer and the witness. (b) Notwithstanding any general or special law to the contrary, an attesting witness to a record shall be considered to have signed such record in the presence of the principal signer, if all of the following are satisfied:
(1) The signature of the principal signer is witnessed by the attesting witness in accordance with the requirements of subsection (a) of this section.
(2) The attesting witness immediately thereafter signs such record while the video conference technology still allows for direct, real-time audio and video interaction between the principal signer and the attesting witness.
(c) Any record witnessed pursuant to this section shall contain all of the following: (1) A conspicuous statement indicating that the record was witnessed by one or more witnesses physically located in the State of North Carolina pursuant to this Article. (2) The county in which each remote witness was physically located when witnessing execution of the record. (3) The county in which each principal signer was physically located during the witnessed execution of the record.
(d) Notwithstanding any general or special law to the contrary, absent an express prohibition in a legal document against signing in counterparts, any record witnessed pursuant to this Article may be signed in counterpart, which counterparts, when combined, shall create a single original record."

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EXHIBIT 12 North Carolina Absentee Application and Certificate, made available by Pitt County,
North Carolina
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 7 of 39

Absentee Application and Certificate
Fraudulently or Falsely completing this form is a Class 1 felony under Chapter 163 of the N.C. General Statutes
The following people are PROHIBITED from signing the Witnesses' Certification: For all voters: a candidate, UNLESS the candidate is the voter’s near relative; For voters who are patients or residents of a hospital, clinic, nursing home, or adult care home: (1) an owner, manager, director, or employee of that facility; (2) an individual who holds any federal, State, or local elective office; and (3) an individual who holds office in a State, congressional district, county or precinct political party or organization, or who is a campaign manager or treasurer for any candidate or political party.

Affix NON-BARCODE Label HERE
Affix BARCODE Label HERE

Voter’s Certification (Required) I am applying for an absentee ballot • I am a duly qualified voter, registered as an affiliate of the political party indicated on this application • All information represented on this application is correct • I am entitled to vote in this election • If I am an Unaffiliated voter voting in a primary election, I am voting in the party primary indicated on the attached label • If the party indicated is (UNA), I am voting a nonpartisan ballot.
I further certify that I marked the enclosed ballot (or it was marked for me according to my instructions) in the presence of:
two (2) witnesses who are at least 18 years of age and who are not disqualified by law to witness the casting of my absentee ballot (the witnesses must complete the Option 1 of the Witnesses’ Certification)
OR a notary public (the notary must complete Option 2 of the Witnesses’ Certification)

Witnesses’ Certification

Option 1: Two (2) Witnesses (Required Unless a Notary Public is the Witness)

I certify that: • I am at least 18 years old • I am not disqualified from witnessing the ballot as described in the WARNING on the flap of this envelope • The Voter marked the enclosed ballot in my presence, or caused it to be marked in the Voter’s presence according to his/her instruction • The Voter signed this Absentee Application and Certificate, or caused it to be signed • I respected the secrecy of the ballot and the Voter’s privacy, unless I assisted the Voter at his/her request [complete Voter Assistant Certification section].

Witness #1

Witness #2

Signature (Required) Street Address (Required)

Signature (Required) Street Address (Required)

Board Approval Date Second Primary Request or Runoff Request In the event that a Second Primary (or Runoff Election) is called, I request that an absentee application and ballot be issued to me and mailed to me. (Check the box to receive eligible ballots.) Annual Request for Illness/Disability Due to continued or expected illness or disability, I request that this application be a request for absentee ballots for any other elections to be held this calendar year in which I am eligible to participate. (Check the box to receive eligible ballots.)

X

Signature of Voter (Required)

Date

Name Correction (if applicable)
Voter Assistant Certification (if applicable) I certify that: • The voter requested my assistance • I assisted the Voter by marking the ballot only according to the Voter’s instruction; and/or I assisted the Voter in completing the Absentee Application and Certificate • I assisted the Voter only in the Voter’s presence • I am the Voter’s near relative or verifiable legal guardian, or I am providing assistance because a near relative or legal guardian is unavailable to assist the Voter.

Signature of Voter (if applicable) Address where application and ballots should be mailed

Name of Assistant
X
Signature of Assistant

Address of Assistant Date

City, State and Zip (Required)

City, State and Zip (Required)

Date

Date

Option 2: Notary Public as Witness (Required Unless Two Witnesses Provided)

I certify that: on the ____________ day of ____________________________, 20 ________, the Voter: _________________________________________ personally appeared before me, was positively identified, and in my presence, the Voter marked the enclosed ballot, or caused it to be marked in the Voter’s presence according to his/her instruction • The Voter signed this Absentee Application and Certificate, or caused it to be signed • I am at least 18 years old • I am not disqualified from witnessing the ballot as described in the WARNING on the flap of this envelope • I respected the secrecy of the ballot and the privacy of the Voter, unless I assisted the Voter at his/her request [complete Voter Assistant Certification section].
NOTE: A notary may not charge any fee for witnessing and affixing a notarial seal to an absentee ballot application or certificate. [G.S. § 10B-30].

STATE OF _________________________________ COUNTY OF ________________________________

Notary Public

SEAL
Commission Expiration Date

Case 1:20-cv-00457-WO-JLW DoNCcSuBmE ve20n1t8.0122-8 Filed 06/05/20 Page 8 of 39

EXHIBIT 13 Federal Write-in Absentee Ballot, made available by
the Federal Voting Assistance Program
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 9 of 39

Federal Write-In Absentee Ballot
If you do not receive your absentee ballot in enough time to meet your state’s deadlines, use this ballot as a backup. If you send in this ballot and receive your state’s ballot later, you should fill out and return your state ballot as well. Your election office will count only one ballot.
The following require you to register and request an absentee ballot before filling out this form: AL, AS, AR, CT, FL, GU, HI, ID, IL, IN, KS, LA, NH, NJ, NM, NY, PA, PR, RI, SD, TX, WI, WV, and WY. If your state or territory is listed, complete a Federal Post Card Application (FPCA) online at FVAP.gov.
If you already registered and requested a ballot, send in the Voter Information page and the Official Backup Ballot.
Please be aware that some states will accept this form as registration and as an absentee ballot request for future elections.

Use this form if you are:
On active duty in the Uniformed Services or Merchant Marine An eligible spouse or dependent A U.S. citizen living outside the United States

You can vote wherever you are. This is how.
1. Fill out your Voter Information page completely and accurately.

• Your U.S. voting residence address is used to determine where you are eligible to vote absentee. For military voters, it is usually your last address in your state of legal residence. For overseas citizens, it is usually the last place you lived before moving overseas. You do not need to have any current ties with this address. DO NOT write a PO Box # in section 2.
• Most states allow you to provide a Driver’s License number or the last 4 digits of your SSN. Some states require a full SSN. See your state’s guidelines at FVAP.gov.
• If you cannot receive mail at your mailing address, please specify a mail forwarding address.
• Most states require you to specify a political party to vote in primary elections. This information may be used to register you with a party.
• Section 6 Requirements: Alabama requires two witness signatures; Alaska, Virginia and Wisconsin, require one witness signature; Puerto Rico requires your mother’s and father’s first name; Vermont requires a voter’s oath. Additional state instructions can be found at FVAP.gov.
• Remember to sign the bottom of the Voter Information page!

Agency Disclosure Statement
The public reporting burden for this collection of information is estimated to average 15 minutes per response, including time to review instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden to: Department of Defense, Washington Headquarters Services, Executive Services Directorate, Information Management Division, 4800 Mark Center Dr., East Tower, Suite 03F09, Alexandria, VA 22350-3100. [OMB Control #0704-0502]. Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number. DO NOT RETURN YOUR FORM TO THE ADDRESS ABOVE.
Privacy Advisory
When completed, this form contains personally identifiable information and is protected by the Privacy Act of 1974, as amended.

2. Carefully fill out and seal your Official Backup Ballot.

• DO NOT sign your ballot or include any personal information. Keep your ballot anonymous.
• If using a self-sealing form, remove the adhesive liner, fold and seal tightly.
• If you printed out the form, fold the voted ballot and seal it in an envelope marked “ballot enclosed”.

3. Assemble your documents for mailing.

• Put your Voter Information page and Official Backup Ballot into the mailing envelope.

• You can find the address for your election office at FVAP.gov. Questions?

•

All states accept this form by mail, but they vary on email and fax. See your state’s rules in the Voting Assistance Guide online

Email vote@fvap.gov

at FVAP.gov.

Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 10 of 39

Voter Information
Federal Write-In Absentee Ballot (FWAB)
Print clearly in blue or black ink, please see back for instructions.

Have you already registered and requested an absentee ballot?
Some states allow you to use this form to register and request ballots for future elections. Visit FVAP.gov for more details.

1. Who are you? Pick one.

For absent Uniformed Service members, their families, and citizens residing outside the United States.
Last name

I am on active duty in the Uniformed Services or Merchant Marine -OR- I am an eligible spouse or dependent.

I am a U.S. citizen living outside the country, and I intend to return.

I am a U.S. citizen living outside the country, and my intent to return is uncertain.

I am a U.S. citizen living outside the country, and I have never lived in the United States.

Suffix (Jr., II)

Sex

Female Male

First name

Previous names (if applicable)

Middle name

Birth date (MM/DD/YYYY)

/

/

Social Security Number

Driver’s license or State ID #

2. What is your U.S. voting residence address? Your voting materials will not be sent to this address. See instructions on other side of form.

Street address

Apt #

City, town, village

State

County

ZIP

3. Where are you now? You MUST give your CURRENT contact information.

Your mailing address. (Different from above)

Your mail forwarding address. (If different from mailing address)

4. What is your contact information? This is so election officials can reach you about your request. Provide the country code and area code with your phone and fax number. Do not use a Defense Switched Network (DSN) number.

Email:

Phone:

Alternate email:

Fax:

5. What are your preferences for future elections?

A. Do you want to register and request a ballot for all elections you are eligible to vote in?

Yes

B. How do you want to receive voting materials

No from your election office?

Mail Email or online Fax

C. What is your political party for primary elections?

6. What additional information must you provide?

The following need more information: Alabama, Alaska, Puerto Rico, Vermont, Virginia and Wisconsin, see back for instructions. Additional state instructions can be found at FVAP.gov.

7. You must read and sign this statement.

I swear or affirm, under penalty of perjury, that:
The information on this form is true, accurate, and complete to the best of my knowledge. I understand that a material misstatement of fact in completion of this document may constitute grounds for conviction of perjury. I am a U.S. citizen, at least 18 years of age (or will be by the day of election), eligible to vote in the requested jurisdiction, and I am not disqualified to vote due to having been convicted of a felony or other disqualifying offense, nor have I been adjudicated mentally incompetent; or if so, my voting rights have been reinstated; and I am not registering, requesting a ballot, or voting in any other jurisdiction in the United States, except the jurisdiction cited in this voting form. In voting, I have marked and sealed this ballot in private and have not allowed any person to observe the marking of this ballot, except those authorized to assist voters under State and Federal law.

X Sign here

Today’s date
(MM/DD/YYYY)

//

This information is for official use only. Any unauthorized release may be punishable by law.

Previous editions are obsolete.

Standard Form 186 (Rev.04-2019), OMB No. 0704-0502

Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 11 of 39

Official Backup Ballot
Federal Write-In Absentee Ballot (FWAB)
Print clearly in blue or black ink.

Vote by writing the NAME or PARTY of the candidates you choose. To find out about specific federal candidates and races go to FVAP.gov.

Instructions

• This ballot can be used to vote for federal offices. • DO NOT write your name or any identifying number (SSN, driver’s license) on this ballot. • Photocopy this page if you require additional room for candidates or ballot initiatives. • If you are voting in American Samoa, Guam, Puerto Rico, or the U.S. Virgin Islands, you may vote for Delegate or
Resident Commissioner, and in presidential primaries. • State laws vary about using the FWAB for other offices like Governor or Mayor. Learn more online at FVAP.gov.

Federal offices President and Vice President

U.S. Senator

U. S. Representative, Delegate, or Resident Commissioner to Congress
Non-federal offices Office

Candidate name

Political party

Ballot initiatives or other items

Standard Form 186 (Rev.04-2019), OMB No. 0704-0502
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 12 of 39

Official Ballot Federal Write-In Absentee Ballot Private
Fold your ballot and keep it private. Put it in the envelope.
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 13 of 39

Before you seal this envelope:

STOP

1. Sign and fold your Voter Information page.
2. Fold and seal your Official Backup Ballot.
3. Put both inside this envelope, and mail it to your election office. The address can be found at FVAP.gov.

1
Voter Information
2
Ballot
3
Voter Information
Official Ballot Private

Fold in half
Fold and seal
Mailing Envelope

Voter Information
Official Ballot Private

For election officials:
This is an official Federal Write-In Absentee Ballot authorized by 52 U.S.C. § 20301. If you have questions about it, contact your State officials.
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 14 of 39

From
(Your name and mailing address.)
International airmail postage is required if not mailed using the U.S. Postal Service, APO/FPO/DPO system, or diplomatic pouch.
I have enclosed my ballot for the __ /____ election.
MM YYYY
OFFICIAL ABSENTEE BALLOTING MATERIAL – FIRST CLASS MAIL
NO POSTAGE NECESSARY IN THE U.S. MAIL – DMM 703.8.0 To
(Fill in the address of your election office. The address can be found online at FVAP.gov.)

U.S. Postage Paid 39 USC 3406
PAR AVION

Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 15 of 39

EXHIBIT 14 Recommendations for Election Polling Locations,
published by the CDC
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 16 of 39

Coronavirus Disease 2019 (COVID-19)
Recommendations for Election Polling Locations
Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19)
Updated March 27, 2020
Summary of changes:
Encourage moving election polling locations away from long term care facilities and facilities housing older persons to minimize COVID-19 exposure among older individuals and those with chronic medical conditions. Updated EPA COVID Disinfectant link.
Background
There is much to learn about the novel coronavirus (SARS-CoV-2) that causes coronavirus disease 2019 (COVID-19). Based on what is currently known about SARS-CoV-2 and about similar coronaviruses, spread from person-to-person happens most frequently among close contacts (within about 6 feet). This type of transmission occurs via respiratory droplets. Transmission of SARS-CoV-2 to persons from surfaces contaminated with the virus has not been documented. Transmission of coronavirus in general occurs much more commonly through respiratory droplets than through contact with contaminated surfaces. Current evidence suggests that SARS-CoV-2 may remain viable for hours to days on surfaces made from a variety of materials. Cleaning of visibly dirty surfaces followed by disinfection is a best practice measure for prevention of COVID-19 and other viral respiratory illnesses in election polling locations.
Purpose
This guidance provides recommendations on the routine cleaning and disinfection of polling location areas and associated voting equipment (e.g., pens, voting machines, computers). It suggests actions that polling station workers can take to reduce the risk of exposure to COVID-19 by limiting the survival of the virus in the environment. This guidance will be updated if additional information becomes available.
De nitions:
Community settings (e.g. polling locations, households, schools, daycares, businesses) encompass most non-healthcare settings and are visited by the general public. Cleaning refers to the removal of dirt and impurities including germs from surfaces. Cleaning alone does not kill germs. But by removing them, it decreases the number of germs and therefore any risk of spreading infection. Disinfecting kills germs on surfaces. Disinfecting works by using chemicals to kill germs on surfaces. This process does not necessarily clean dirty surfaces or remove germs. But killing germs remaining on a surface after cleaning further reduce any risk of spreading infection.
Actions for elections o cials in advance of election day
Encourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations.
Encourage mail-in methods of voting if allowed in the jurisdiction. Encourage early voting, where voter crowds may be smaller throughout the day. This minimizes the number of individuals a voter may come in contact with. Encourage drive-up voting for eligible voters if allowed in the jurisdiction. Encourage voters planning to vote in-person on election day to arrive at o -peak times. For example, if voter crowds are lighter mid-morning advertise that in advance to the community
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 17 of 39

 
 crowds are lighter mid-morning, advertise that in advance to the community. Encourage relocating polling places from nursing homes, long-term care facilities, and senior living residences, to minimize COVID-19 exposure among older individuals and those with chronic medical conditions. Consider additional social distancing and other measures to protect these individuals during voting.
Preventive actions polling workers can take
Stay at home if you have fever, respiratory symptoms, or believe you are sick Practice hand hygiene frequently: wash hands often with soap and water for at least 20 seconds. If soap and water are not readily available, use an alcohol-based hand sanitizer that contains at least 60% alcohol. Practice routine cleaning of frequently touched surfaces: including tables, doorknobs, light switches, handles, desks, toilets, faucets, sinks, etc. Disinfect surfaces that may be contaminated with germs after cleaning: A list of products with EPA-approved emerging viral pathogens claims  is available. Products with EPA-approved emerging viral pathogens claims are expected to be e ective against the virus that causes COVID-19 based on data for harder to kill viruses. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, use of personal protective equipment). Clean and disinfect voting-associated equipment (e.g., voting machines, laptops, tablets, keyboards) routinely. Follow the manufacturer’s instructions for all cleaning and disinfection products.
Consult with the voting machine manufacturer for guidance on appropriate disinfection products for voting machines and associated electronics. Consider use of wipeable covers for electronics. If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to clean voting machine buttons and touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Preventive action polling stations workers can take for themselves and the general public
Based on available data, the most important measures to prevent transmission of viruses in crowded public areas include careful and consistent cleaning of one’s hands. Therefore:
Ensure bathrooms at the polling station are supplied adequately with soap, water, and drying materials so visitors and sta can wash their hands.. Provide an alcohol-based hand sanitizer with at least 60% alcohol for use before or after using the voting machine or the nal step in the voting process. Consider placing the alcohol-based hand sanitizer in visible, frequently used locations such as registration desks and exits. Incorporate social distancing strategies, as feasible.Social distancing strategies increase the space between individuals and decrease the frequency of contact among individuals to reduce the risk of spreading a disease. Keeping individuals at least 6 feet apart is ideal based on what is known about COVID-19. If this is not feasible, e orts should be made to keep individuals as far apart as is practical. Feasibility of strategies will depend on the space available in the polling station and the number of voters who arrive at one time. Polling station workers can:
Increase distance between voting booths. Limit nonessential visitors. For example, poll workers should be encouraged not to bring children, grandchildren, etc. with them as they work the polls. Remind voters upon arrival to try to leave space between themselves and others. Encourage voters to stay 6 feet apart if feasible. Polling places may provide signs to help voters and workers remember this. Discourage voters and workers from greeting others with physical contact (e.g., handshakes). Include this reminder on signs about social distancing.
Recommendations for processing mail-in ballots
Workers handling mail in ballots should practice hand hygiene frequently
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 18 of 39

g

p

yg

qy

No additional precautions are recommended for storage of ballots

References
Community Mitigation Guidance for COVID-19 Response in the United States: Nonpharmaceutical Interventions for Community Preparedness and Outbreak Response Handwashing: Clean Hands Save Lives Protect Yourself & Your Family
Page last reviewed: March 10, 2020

Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 19 of 39

EXHIBIT 15 The 2014 EAC Election Administration and Voting Survey Comprehensive Report (Table 39), published
by the U.S. Election Assistance Comm’n
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 20 of 39

U.S. ELECTION ASSISTANCE COMMISSION
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 21 of 39

THE 2014 EAC ELECTION ADMINISTRATION AND VOTING SURVEY COMPREHENSIVE REPORT

2014 Election Administration and Voting Survey

Table 39. Number and Ages of Poll Workers

State

Election Juris. in Survey

Number of Poll Workers
Total

Alabama

67

Alaska

1

2,716

Arizona

15

9,203

Arkansas

75

8,443

California

58

81,146

Colorado

64

3,974

Connecticut

169

4,423

Delaware

3

4,060

District of Columbia

1

1,743

Florida

67

41,902

Georgia

159

16,379

Hawaii

4

5,423

Idaho

44

5,134

Illinois

110

44,537

Indiana

92

18,308

Iowa

99

8,613

Kansas

105

7,187

Kentucky

120

14,940

Louisiana

64

16,900

Maine

500

5,082

Maryland

24

22,639

Massachusetts

351

13,164

Michigan

83

31,546

Minnesota

87

28,665

Mississippi

82

6,721

Missouri

116

15,931

Montana

56

3,809

Nebraska

93

6,976

Nevada

17

4,455

Cases 0 1 14 72 57 64
169 3 1 67
150 4 44
105 78 99 105 120 64 490 24 351 83 87 56 114 56 93 17

Under 18
Total Pct. … …
183 2.0 0 0.0
9,101 11.2 99 2.5 … 481 11.8 0 0.0 80 0.2 369 2.3 … 19 0.4 … 233 1.3 … … … … 29 0.6 130 0.6 … 928 2.9 … 0 0.0 150 0.9 15 0.4 69 1.0 209 4.7

18 to 25

Total

Pct.

…

…

129

1.4

28

0.3

6,930

8.5

69

1.7

…

168

4.1

0

0.0

830

2.0

928

5.7

…

111

2.2

…

384

2.1

…

…

…

…

86

1.7

935

4.1

…

1,445

4.6

…

48

0.7

192

1.2

54

1.4

68

1.0

114

2.6

26 to 40

Total

Pct.

…

…

314

3.4

112

1.3

7,743

9.5

180

4.5

…

199

4.9

0

0.0

1,984

4.7

1,432

8.7

…

319

6.2

…

749

4.1

…

…

…

…

376

7.4

1,816

8.0

…

2,241

7.1

…

921

13.7

388

2.4

205

5.4

334

4.8

258

5.8

41 to 60

Total

Pct.

…

…

715

7.8

429

5.1

20,883

25.7

798

20.1

…

1,017

25.0

0

0.0

9,079

21.7

4,323

26.4

…

1,489

29.0

…

2,330

12.7

…

…

…

…

1,497

29.5

8,444

37.3

…

9,024

28.6

…

439

6.5

2,457

15.4

977

25.6

1,543

22.1

1,146

25.7

61 to 70

Total

Pct.

…

…

1,983

21.5

755

8.9

15,578

19.2

1,047

26.3

…

723

17.8

0

0.0

10,005

23.9

5,262

32.1

…

1,824

35.5

…

2,473

13.5

…

…

…

…

1,728

34.0

7,100

31.4

…

10,234

32.4

…

405

6.0

3,536

22.2

1,462

38.4

2,318

33.2

1,209

27.1

71 and Over

Total

Pct.

…

…

2,220

24.1

851

10.1

12,266

15.1

525

13.2

…

608

15.0

0

0.0

10,916

26.1

3,730

22.8

…

1,372

26.7

…

1,946

10.6

…

…

…

…

1,366

26.9

4,214

18.6

…

7,674

24.3

…

290

4.3

3,376

21.2

1,096

28.8

2,644

37.9

965

21.7

Balance (See Notes)

Total 0
2,716 3,659 6,268 8,645 1,256 4,423
864 1,742 9,008
335 5,423
0 44,537 10,193 8,613 7,187 14,940 16,900
0 0 13,164 0 28,665 4,618 5,832 0 0 554

Pct. …
100.0 39.8 74.2 10.7 31.6 100.0 21.3 99.9 21.5 2.0 100.0 0.0 100.0 55.7 100.0 100.0 100.0 100.0 0.0 0.0 100.0 0.0 100.0 68.7 36.6 0.0 0.0 12.4

247 • A REPORT TO THE 114TH CONGRESS • JUNE 30, 2015
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 22 of 39

THE 2014 EAC ELECTION ADMINISTRATION AND VOTING SURVEY COMPREHENSIVE REPORT

2014 Election Administration and Voting Survey

Table 39. Number and Ages of Poll Workers (continued)

State

Election Juris. in Survey

Number of Poll Workers
Total

New Hampshire

320

2,392

New Jersey

21

21,142

New Mexico

33

3,550

New York

62

57,812

North Carolina

100

19,296

North Dakota

53

1,910

Ohio

88

41,524

Oklahoma

77

6,241

Oregon

36

Pennsylvania

67

Rhode Island

39

3,797

South Carolina

46

13,489

South Dakota

66

1,597

Tennessee

95

15,079

Texas

254

31,542

Utah

29

10,974

Vermont

246

2,678

Virginia

133

18,321

Washington

39

235

West Virginia

55

9,455

Wisconsin

3,589

32,815

Wyoming

23

2,061

American Samoa

1

356

Guam

1

290

Puerto Rico

0

Virgin Islands

1

351

Sum of Above

8,200

730,926

States Included

Question

D3

Cases 320 17 33 62 100 53 88 77 0 0 39 46 28 95 231 29 246 130 37 55
3,589 23 1 1 0 1
7,889

Under 18
Total Pct. … … … …
239 1.2 …
1,524 3.7 0 0.0 … … …
1,153 8.5 …
136 0.9 91 0.3
… 13 0.5 648 3.5 0 0.0 0 0.0 397 1.2 19 0.9
… 0 0.0
… … 16,315 2.2 31 D4a

18 to 25

Total

Pct.

…

…

…

…

403

2.1

…

1,888

4.5

36

0.6

…

…

…

…

6

0.4

411

2.7

149

0.5

…

13

0.5

422

2.3

8

3.4

168

1.8

451

1.4

18

0.9

…

76

26.2

…

…

16,568

2.3

31

D4b

26 to 40

Total

Pct.

…

…

…

…

1,105

5.7

…

1,777

4.3

108

1.7

…

…

…

…

27

1.7

691

4.6

508

1.6

…

63

2.4

1,021

5.6

10

4.3

569

6.0

1,450

4.4

55

2.7

…

79

27.2

…

…

27,034

3.7

31

D4c

41 to 60

Total

Pct.

…

…

…

…

5,919

30.7

…

9,825

23.7

922

14.8

…

…

…

…

195

12.2

3,211

21.3

1,397

4.4

…

602

22.5

5,042

27.5

85

36.2

1,577

16.7

6,974

21.3

481

23.3

…

98

33.8

…

…

102,918

14.1

31

D4d

61 to 70

Total

Pct.

…

…

…

…

6,927

35.9

…

10,002

24.1

2,059

33.0

…

…

…

…

276

17.3

5,113

33.9

1,988

6.3

…

756

28.2

5,818

31.8

97

41.3

1,486

15.7

12,598

38.4

814

39.5

…

33

11.4

…

…

115,609

15.8

31

D4e

71 and Over

Total

Pct.

…

…

…

…

4,703

24.4

…

8,252

19.9

3,116

49.9

…

…

…

…

426

26.7

4,508

29.9

1,853

5.9

…

344

12.8

3,911

21.3

25

10.6

973

10.3

10,733

32.7

423

20.5

…

4

1.4

…

…

95,330

13.0

31

D4f

Balance (See Notes)

Total 2,392 21,142 3,550 57,812
0 1,910 8,256
0 0 0 3,797 12,336 667 1,009 25,556 10,974 887 1,459 10 4,682 212 251 356 0 0 351 357,151 42 calc

Pct. 100.0 100.0 100.0 100.0
0.0 100.0 19.9
0.0 … … 100.0 91.5 41.8 6.7 81.0 100.0 33.1 8.0 4.3 49.5 0.6 12.2 100.0 0.0 … 100.0 48.9

248 • A REPORT TO THE 114TH CONGRESS • JUNE 30, 2015
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 23 of 39

THE 2014 EAC ELECTION ADMINISTRATION AND VOTING SURVEY COMPREHENSIVE REPORT

TABLE 39. NUMBER AND AGES OF POLL WORKERS

Questions D3, D4. Number of poll workers used and age category.

Question D3

Arizona
California DC Florida

Maricopa County also hired 116 citizen board troubleshooters that do not serve as polling place board workers but are assigned several specific polling place locations to assist the board workers at these locations with any issues that come up on Election Day. This quantity of additional workers (116) is NOT reflected in the Maricopa’s D3 grand total.
One county noted that its D3 figure does not include reserve workers and couriers (46 cases). Another county commented that its D3 figure includes poll workers and rover/super rovers.
The DC Board of Elections tracks the ages of poll workers by percentage, rather than number.
Bay County lost a large number of poll workers midcycle and had to continually recruit additional workers.

Indiana
Minnesota New Hampshire Texas

One jurisdiction commented that its poll worker total includes Election Day and satellite workers.
One county noted that their figure for D3 is an estimate.
Minimum required.
Three jurisdictions reported that their D3 figures included only Election Day workers, while four jurisdictions indicated that their totals included both workers for both Election Day and early voting. One jurisdiction commented that its Election Day workers were the same as its early voting workers. Another jurisdiction noted that its total included workers who were exclusively ballot board, central count, temporary workers, security, or IT. One jurisdiction included both typical and student election workers in its count. One jurisdiction commented that its figure for D3 is an estimate. One jurisdiction commented, “Double the total of D3a if primary, there is never less than three persons at a polling place, if a particular polling place is heavy Hispanic then an interpreter is added, even if there is an interpreter at the main election office.”

249 • A REPORT TO THE 114TH CONGRESS • JUNE 30, 2015
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 24 of 39

THE 2014 EAC ELECTION ADMINISTRATION AND VOTING SURVEY COMPREHENSIVE REPORT

Vermont

One jurisdiction reported that it held 2-hour shifts for four ballot workers throughout the day, and its total also includes BCA counters. A different jurisdiction noted that its D3 total does not include one individual who came to help count only. Another jurisdiction indicated that its total includes both volunteer and paid vote counters (hand count town). One jurisdiction indicated that its total includes the town clerk and the assistant town clerk, while a different jurisdiction reported that it did not include its town clerk or assistant town clerk in its total. One jurisdiction noted that its total does not include the people who helped count votes.

Wyoming

One jurisdiction indicated that its total for D3 includes polling place workers, absentee board members, test board members, canvass board members, and alternate workers.

250 • A REPORT TO THE 114TH CONGRESS • JUNE 30, 2015
Case 1:20-cv-00457-WO-JLW Document 12-8 Filed 06/05/20 Page 25 of 39

THE 2014 EAC ELECTION ADMINISTRATION AND VOTING SURVEY COMPREHENSIVE REPORT

TABLE 39. NUMBER AND AGES OF POLL WORKERS

Questions D3, D4. Number of poll workers used and age category.

Question D4

Arkansas

One jurisdiction commented that most of its election workers are over 40 years old, while another jurisdiction commented that most of its election workers are between 61 and 70 years old.

Indiana

Arizona California Colorado

Maricopa County implemented a student poll workers program back in 2008. Since its inception, it has realized a steady increase in participation among students. For the 2014 election, of the 3,848 workers in Maricopa County, over 152 of these board workers were students.
Thirteen counties indicated that the poll worker data was unavailable for certain groups of poll workers; one county indicated that it did not have age data for any poll workers. One jurisdiction noted that it was entirely vote by mail, so it did not have any poll workers.
Seven jurisdictions commented that poll worker age information was unavailable. One jurisdiction commented that it had 31 student judges, but otherwise, it does not track by age.

Louisiana
Minnesota
New Hampshire

The average age of poll workers in Clay County was 60.58. Another jurisdiction estimated that the average age of its poll workers was between 45 and 70; two other jurisdictions estimated the average age to be between 45 and 60. One jurisdiction commented that it “had a lot more [poll workers] over 71, but they could not work. This includes alternates.” Another jurisdiction reported that its oldest poll worker was 88 years old. Two jurisdictions reported that their average poll worker ages skewed high. Data not available.
Minnesota does not collect age data.
Data not available.

251 • A REPORT TO THE 114TH CONGRESS • JUNE 30, 2015
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THE 2014 EAC ELECTION ADMINISTRATION AND VOTING SURVEY COMPREHENSIVE REPORT

New York
South Carolina South Dakota
Texas

New York does not capture demographic information regarding poll workers.
Age data not available for poll workers 18 years of age and older.
One jurisdiction indicated that it did not have age data for 12 of its poll workers.
One jurisdiction reported that it does not collect age data. Another jurisdiction reported that it included age counts for both Election Day and early voting election workers. One jurisdiction indicated that it only had age data available for its student election workers; similarly, another jurisdiction commented, “While no exact figures are readily available, the bulk of election workers are in the older three groupings, with a handful of younger adults and six student clerks.” One jurisdiction reported that most of its poll workers are over 65 years of age. Two jurisdictions reported that their D4 figures were estimates.

Vermont Washington West Virginia
Wyoming

One jurisdiction commented that all of its poll workers appear to be over 40 years old. Another jurisdiction noted that its figures for QD4 were mostly estimates. A fourth jurisdiction indicated that the individual who came in to count was in the 61 to 70 age range category.
One jurisdiction commented that its figures for D4 do not include permanent staff, only temporary staff hired specifically to work at an accessible voting center.
One jurisdiction estimated its age breakdown to be 10% for 26–40, 70% for 41–60, and 20% for 61–70. Another jurisdiction indicated that its responses for D4 are approximate totals. Two jurisdictions commented that the majority of its poll workers were between 41 and 60 years of age.
One jurisdiction reported that its oldest worker was 84, and its youngest worker was 35. Another jurisdiction commented that “most will be unable to serve in 2 years.” A third jurisdiction reported that it had one student judge, but it does not track the ages of its other poll workers.

252 • A REPORT TO THE 114TH CONGRESS • JUNE 30, 2015
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EXHIBIT 16 Voting Rights and Election Administration in North Carolina: Field Hearing Before the Subcomm. on Elections of the H. Comm. on House Administration
(Apr. 18, 2019)
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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Testimony of Tomas Lopez Executive Director, Democracy North Carolina
Before the Committee on House Administration, Subcommittee on Elections, U.S. House of Representatives
Field Hearing on Voting Rights and Election Administration in North Carolina April 18, 2019
Chair Fudge, Ranking Member Davis, and Members:
Thank you for the opportunity to submit this testimony for your field hearing on voting rights and election administration in North Carolina, and to share the experiences of this state’s voters, who in recent years have been subjected to consistent attacks on voting access and deliberate, extreme racial and partisan gerrymanders. These measures have undermined both the ability for voters to participate in elections and the effectiveness of participation itself— by design. North Carolina’s experience underscores the necessity of congressional action to both restore the full protections of the Voting Rights Act and establish new standards to facilitate meaningful access to the political process.
My name is Tomas Lopez, and I am the executive director of Democracy North Carolina. We are a nonpartisan, nonprofit organization that works to, among other goals, protect the right to vote in our state. As part of this work, we seek to bring North Carolinians – especially historically underrepresented people of color – into the political process and encourage their participation and leadership through voting, monitoring the election process, and issue advocacy. We also author original research on election administration, help coordinate a statewide nonpartisan poll monitoring and voter assistance network, and advocate for policies and practices that we believe will increase voter access and participation. Prior to this position, I was a voting rights attorney at the Brennan Center for Justice at NYU School of Law, where I litigated voting rights cases in the federal courts, contributed to research on election law and administration, and supported election reform efforts in several states.
This submission addresses several issues: • Repeated efforts to restrict voting access through several means, including strict photo identification requirements and reductions to early voting; • The voting experience in North Carolina, especially as to voters subjected to dysfunction and intimidation; • The perpetuation of false narratives regarding voter fraud; and • Extreme racial and partisan gerrymandering.
Many of these issues are the results of a concerted, years-long effort to limit voter participation and impact for the sake of short-term, perceived political advantage. All damage the vitality of our state and its democracy by harming the public’s ability to meaningfully take part in the political process.
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the case. As written, the law requires universities, colleges, and community colleges to attest under penalty of perjury as to citizenship verification procedures outside of the scope of their work and within the scope of existing procedures under state and federal law, and imposes other administrative challenges that discouraged North Carolina campuses from complying, such as requiring that school staff take ID photographs themselves and modify their ID documentation.5 From the passage of the legislation, institutions were given less than three months to determine their ability to comply with these requirements and submit their attestation letters to state officials. As of this submission, 37 community colleges, colleges, and universities out of over 100 eligible institutions submitted documentation to the State Board of Elections in order to have their student ID cards approved for voting use in 2020. Of those, 11 campuses were denied – 10 constituent universities of the University of North Carolina system, including the flagship in Chapel Hill, and one HBCU. The General Assembly is currently considering legislation that would modify these requirements, including by removing the attestation requirement for institutions; that measure passed the North Carolina House, but faces uncertain prospects in the Senate.6
We are concerned that, in practice, the ID law will work in much the same way as its predecessor— by imposing both a formal barrier for eligible voters, and an informal one that deters them from casting ballots due to confusion, misinformation, misapplication of the law, or intimidation. Indeed, the introduction of student IDs as another potentially-eligible ID for voting, but one that requires the institution to receive pre-approval by the State Board of Elections, increases the likely impact of both of these barriers on young voters in 2020.
Reductions to Early Voting
Restrictions to early voting have been another hallmark voter suppression tactic since 2013, when H589 cut a week off of North Carolina’s early voting period. North Carolina county boards of elections (BOEs) hold significant power over voting access in this state through their ability to set polling locations, determine early voting schedules, and train poll workers on current law. During the 2014 and 2016 election cycles, these county bodies implemented changes to local election procedures that resulted in reduced access for voters of color:
• In 2014, the Lincoln County Board of Elections passed an early voting plan that reduced voting hours from 2010, a move that was overridden by the State Board of Elections. As a result, hours had to be added to the early voting site in Lincolnton, the county seat – something the BOE chair strongly objected to because “it would have been favorable to the Democratic Party.” Although only 13% of the county population lives in Lincolnton, it is the home of 31% of the county’s African American voters.7
• In 2014, over the objections of community members, the Forsyth County Board of Elections adopted an early voting plan that moved early voting sites outside of the urban center of Winston-Salem, where the majority of Black voters live, to whiter, more conservative suburbs. The plan removed an early voting site from Winston Salem State University, a HBCU that had been an early voting location in 2012, 2010, and 2008, and did not replace it with any other sites
5 N.C.G.S. § 163A-1145.2. 6 House Bill 646 (2019). 7 Sharon McCloskey, “Lincoln County voters fight for hours at early voting sites,” The Progressive Pulse (NC Policy Watch), Oct. 31, 2014, http://pulse.ncpolicywatch.org/2014/10/31/lincoln-county-voters-fight-for-hours-at-early-voting-sites/.
3
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in eastern Winston-Salem, although multiple alternatives were suggested. “Our African American community has been hurt,” testified a local Democratic party official before the BOE.8 • In 2014 and 2016, the Chavis Heights Community Center precinct in Southeast Raleigh in Wake County demonstrated the effect that having out-of-precinct voting available as an option and its correct implementation by precinct officials can have on access for voters of color. In 2014, when North Carolina did not have out-of-precinct voting in place, our poll monitors counted over 300 voters, mostly African-American, turned away from the poll and sent to other polling locations. In many cases, voters told monitors they would not be able to get to another polling place – one person had used their last money on bus fare to Chavis Heights.9 In 2016, when outof-precinct voting was permitted following the Fourth Circuit’s ruling, poll monitors reported that the chief judge at the polling place refused to offer provisional ballots to out-of-precinct voters. When voters demanded an out-of-precinct provisional, as was their right, precinct officials discouraged them from casting a ballot, saying, “it won’t count anyway.”10 • In 2016, in an attempt to blunt the impact of the Fourth Circuit’s decision to restore the first week of early voting, many of the Republican-led county BOEs adopted early voting plans with fewer hours and sites during the first restored week. There were dramatic reductions in early voting hours in Guilford (-660), Mecklenburg (-282), Brunswick (-165), Craven (-141), Johnston (-124), Robeson (-121), and Jackson (-113) counties. Of those, Guilford, Craven, and Robeson counties were previously covered under Section 5 of the Voting Rights Act, and Mecklenburg and Johnston have significant Black voting populations, 33% and 16% of all registered voters (as of October 22, 2016) respectively.
A second troubling development is a June 2018 law, S325, which mandates a 12-hour early voting schedule during the week and requires those same hours across all sites.11 While uniformity may present theoretical benefits, the extended 12-hour day required by S325 has in practice increased the costs of early voting for counties and, in turn, reduced the total availability of early voting, particularly weekend hours.
North Carolina law requires counties to make early voting available at a minimum of one location and permits counties to establish additional early voting locations. In past cycles counties, especially in low-resourced areas, made early voting available at different times across a variety of locations during the early voting window— for instance, by having some sites open only on the weekends, or offering Sunday voting at only one or two locations. The 2018 law makes this impossible by requiring that counties keep any given early voting site open on the same days and same hours as all others. Additionally, the mandatory 12-hour weekday schedule forces counties to staff sites at hours when voters do not typically vote, thus reducing the total number of sites counties can afford to staff without increasing the number of usable voting hours.
This has produced several consequences in practice:12 • 43 counties reduced the number of early voting sites in 2018 compared to 2014.
8 Meghann Evans, “Forsyth elections board approves early voting plan” Winston-Salem Journal, July 22, 2014, http://www.journalnow.com/news/local/forsyth-elections-board-approves-early-voting-plan/article_7cbf2a6a-11d3-11e4b1fa-001a4bcf6878.html. 9 Isela Gutierrez and Bob Hall, Democracy North Carolina, Alarm Bells from Silenced Voters (June 2015), https://democracync.org/wp-content/uploads/2017/06/SilencedVoters.pdf. 10 Isela Gutierrez, Democracy North Carolina, From the Voter’s View: Lessons from the 2016 Election (January 2018), https://democracync.org/wp-content/uploads/2018/01/PostElectionReport_DemNC_web.pdf. 11 S.L. 2018-112. As originally written, the statute removed the final Saturday of early voting beginning in 2018; this was subsequently postponed. 12 Democracy North Carolina has compiled these figures for use in this submission and in future reporting.
4
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• 51 counties reduced the number of weekend days offered. • 67 counties – over two-thirds of North Carolina’s 100 counties – reduced the number of
weekend hours. • Of the eight counties where a majority of voters are Black, four reduced sites, seven
reduced weekend days, and all eight reduced the number of weekend hours during early voting. None saw increases in sites or weekend options. • A ProPublica and WRAL analysis of Early Voting sites elimination found that about 1 in 5 rural voters saw the distance to an Early Voting site increase by more than a mile— and in some counties, like Halifax, the average distance between voters and Early Voting sites increased by as much as 6 miles.13
Despite these reductions, North Carolina voters turned out in impressive number in last year’s midterm election. But high overall turnout does not necessarily mean widespread or equitable access. Indeed, the three counties where turnout rates (the percentage of registered voters who cast ballots) decreased compared to 2014 are telling. Two were Jones and Pamlico, which received federal assistance after Hurricane Florence. The other was Halifax, the site of this field hearing, which had three Early Voting locations in 2012, 2014, and 2016, but only one in 2018. Halifax also saw the greatest increase in the average distance from voters to Early Voting Sites due to S325.
Elimination of the Last Saturday of Early Voting
Starting in 2019, S325 also eliminates the popular final Saturday of early voting for all future elections. It was traditionally the only weekend voting day offered in all 100 counties, and the turnout numbers bore that out— that day has traditionally been one of the highest turnout days of the entire voting period, despite the fact that many counties keep sites open for shorter periods that day than during the work week. We anticipate that this will result in the majority of North Carolina counties having no weekend Early Voting options, which are crucial for voters who work Monday through Friday. Without the last Saturday in 2018, 63 counties would have had no weekend option for voters to cast their ballots. Or, if weekend hours are offered, they will be offered at a minimal number of sites, which would be especially harmful to rural voters in sprawling counties without public transportation.
And in addition to being hugely popular with voters overall, this last Saturday has been disproportionately used by Black voters in North Carolina at the statewide level and in a sizable majority of the state’s 100 counties in the last five election cycles. In 2018, Black voters made up 22% of registered voters, but 27% of those who cast ballots on the last Saturday of Early Voting.
The Voting Experience in North Carolina
As in many states, election administration challenges affect voting access in North Carolina by making voting a more complicated and intimidating experience than it needs to be. We have observed this in action through our voter protection program; during every major election year, we work closely with partner organizations to recruit, train, and place hundreds of volunteer poll monitors at polling locations across the state. These poll monitors survey voters departing locations, and assist those who report problems by connecting them to a hotline locally staffed by volunteer attorneys. In 2018, the program’s 800 volunteers were present at 279 precincts in 55 counties on Election Day: a total that amounted to 1 in 10 polling places in the state. We use the information they collect to report on the voting experience and inform our policy recommendations.
13 Tyler Dukes, “Early voting changes hit NC rural voters hardest. But will it matter in 2018?” WRAL, Nov. 1, 2018, https://www.wral.com/early-voting-changes-hit-nc-rural-voters-hardest-but-will-it-matter-in-2018-/17959224/.
5
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EXHIBIT 17 Bipartisan Furor as North Carolina Election Law
Shrinks Early Voting Locations by Almost 20 Percent (Sept. 24, 2018), written by
Blake Peterson and published by ProPublica
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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NORTH CAROLINA
Bipartisan Furor as North Carolina Election Law Shrinks Early Voting Locations by Almost 20 Percent
Nearly half of the state’s counties are shutting down polling places, in part because of a law passed in June.
by Blake Paterson, Sept. 24, 2018, 5 a.m. EDT
A voter at a polling place in Raleigh, North Carolina, in 2012. County election o icials across the state say a new law setting polling hours has hamstrung their ability to best serve voters. (Shawn Rocco/Raleigh News & Observer/MCT via Getty Images)
In June, the North Carolina General Assembly passed legislation mandating that all early voting sites in the state remain open for uniform hours on weekdays from 7 a.m. to 7 p.m., a move supporters argued would reduce confusion and ultimately make early voting easier and more accessible. But with the start of early voting only weeks away, county election oﬃcials across the state — who previously had control over setting polling hours in their jurisdictions — say the new law has hamstrung their ability to best serve voters. Some oﬃcials in rural counties say they’ve had to shrink the number of early voting locations to accommodate the law’s longer hour requirements and stay within their budgets.
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A ProPublica analysis of polling locations shows that North Carolina’s 2018 midterm election will have nearly 20 percent fewer early voting locations than there were in 2014. Nearly half of North Carolina’s 100 counties are shutting down polling places, in part because of the new law. Poorer rural counties, often strapped for resources to begin with, are having a particularly diﬃcult time adjusting to the new requirement.
The closure of polling locations increases the time it takes for voters to travel to the polls, and it could result in lower turnout, making matters worse for a state already dealing with Hurricane Florence. Early voting in North Carolina begins on Oct. 17.
We interviewed more than two dozen county election oﬃcials across North Carolina. None said they were in favor of the new law, and none said they were contacted by state lawmakers for counsel on the legislation. Some referred to the policy as “overkill,” a waste of resources and an “unfunded mandate,” particularly burdensome for cash-strapped counties.
“We know our county. We know when most people go to vote early. The 12hour, 7-a.m.-to-7-p.m. requirement just ties our hands when coming up with a catered approach that ﬁts our county best,” said Steve Stone, the Republican chair of the Robeson County Board of Elections.
Republican state lawmakers, who championed the new law, argue that the consistency it provides will eliminate uncertainty among voters and expand early voting by increasing hours and allowing those who work fulltime jobs to vote before or after work.
“The purpose of the uniformity is to make it easier and more convenient and more accessible for the voter to participate,” said David Lewis, a state representative who supported the bill. “I think that access to the polls, access to the ballots in a uniform fashion, is more important than poll worker or election worker convenience.”
Lewis says the law has led to an increase in the number of aggregate polling hours across the state. Indeed, polls for early voting will be open 49,696 hours in 2018, a substantial jump from the 25,887 hours oﬀered in 2014, according to a preliminary analysis from the North Carolina State Board of Elections & Ethics Enforcement.
But according to Robert Stein, a professor of political science at Rice University, aggregate hours are not nearly as important a factor to voter access as the number of early voting locations oﬀered by a county.
“There is a lot of good research to suggest that when it comes to having a positive eﬀect on early voting turnout, the important things are not the hours of operation but the location of the polling place and the distance and travel time it takes a voter to get there,” Stein said.
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For many counties, the trade-oﬀ for more polling hours is fewer early voting locations. Take Gaston County, near Charlotte. In 2014, the county opened one main polling place at 8 a.m. and three additional ones at 10 a.m. According to Adam Ragan, the county’s nonpartisan director of elections, there are very few voters in the county eager to cast ballots early in the morning. The county, therefore, typically maximizes its resources by staggering voting hours across multiple locations.
“In elections administration, we have what we consider ‘nonusable hours,’” Ragan explained. “There are some locations where people won’t come at 7 a.m. or 8 a.m. That’s why we’ve always opened our auxiliary sites at 10 a.m.”
The county originally planned to open ﬁve early voting locations, but with the new policy it can now only aﬀord to operate three.

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While county election oﬃcials from both parties have expressed near uniform discontent over the new requirements, state lawmakers were split along partisan lines on the measure, with support coming exclusively from GOP lawmakers.

“It will put a strain on local boards,” Democratic Rep. Marcia Morey said on the ﬂoor of the North Carolina House of Representatives. “We need local ﬂexibility, not the strong arm of the state for political purposes to suppress the vote.”

North Carolina’s Democratic Gov. Roy Cooper originally vetoed the bill, writing in a statement that “we should be making it easier for people to vote, not harder,” but GOP state lawmakers have veto-proof majorities in both chambers of the General Assembly and handily overrode the veto.

In addition to setting uniform polling hours, the original legislation also eliminated the ﬁnal Saturday of early voting, a day that historically

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attracts a large number of black voters, opening legislators up to further charges of voter suppression.
Republican lawmakers subsequently backed oﬀ on this and restored the popular voting day. Lewis acknowledged the move was a mistake, though he said it had been proposed to give counties more time prepare for Election Day. Still, given the sordid history of voting rights violations in North Carolina, many Democrats remain skeptical of GOP lawmakers’ dedication to expanding access to early voting.
“I do not see it as an isolated event, but rather a part of a larger voter suppression eﬀort,” said Al Daniels, a Democratic member of the Bladen County Board of Elections, of the uniform-hours law. “I see it as anti-voter, period.”
In 2013, the GOP-led General Assembly passed far-reaching legislation in the name of combating voter fraud that cut back on early voting, established a photo ID requirement and did away with pre-registration of high school students, same-day registration and out-of-precinct voting. A federal appeals court struck down the law, labeling it an unconstitutional attempt to “target African Americans with almost surgical precision.”
The 2013 law was passed in the wake of the Supreme Court decision in Shelby County v. Holder, which weakened a provision of the Voting Rights Act that had required a handful of jurisdictions — including parts of North Carolina — to submit voting law changes to the federal government to determine whether those changes had a discriminatory eﬀect or purpose. Now, laws like North Carolina’s uniform-voting legislation don’t need to be given preclearance from the federal government before they can take eﬀect.
“Given the context of the GOP legislature, it makes you want to raise your eyebrows that this just wasn’t some neutral requirement to have consistent voting hours around the state,” said Philip Lehman, the Democratic vice chair of Durham County’s Board of Elections and a former member of the state’s General Assembly.
Other arguments in favor of the law have only advanced suspicion of lawmakers’ motives. State Sen. Ralph Hise, one of a dozen Republican sponsors of the bill, said in an interview with ProPublica that the law was meant, in part, to rein in partisan maneuvering on county election boards. He said that, in previous elections, certain counties would strategically leave speciﬁc early voting sites open for longer to “impact the election.” When asked to provide an example of such conduct, during the interview and subsequently, however, Hise did not do so.
The new law came as a surprise to many local election oﬃcials who had already ﬁnalized their budgets. Elections in North Carolina, unlike some other states, are funded entirely at the county level, leaving some
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administrators scrambling to ﬁgure out how to work within the conﬁnes of their budgets while accommodating the new law.
“I’m a full-ﬂedged Republican and a Republican supporter, and I’m just disappointed in the General Assembly for not reaching out to election oﬃcials in the state and asking, ‘What do you think would work well for this early voting law?’” said Stone, the chair of the Robeson County Board of Elections.
The law appears to have exacerbated the divide between urban and rural counties, putting a greater strain on poorer, less populous counties, which often have smaller budgets, fewer full-time employees and an older voting population that is less willing to volunteer for what could be a 12-hour poll worker shift.
Take Bladen County. When it approved its operating budget this year, election oﬃcials set aside funds for four early voting sites. Though sparsely populated, Bladen County is large — the state’s fourth biggest by area — and local election administrators wanted to provide ample access to voters across the region.
Their plan had precedent. In every statewide election over the past decade, Bladen voters could cast their ballots at one of four early voting locations spread out across the county. Now, with the strict hours requirement, Bladen County can only aﬀord to staﬀ and operate one early voting site.
“We’re a small county and the law has aﬀected us pretty badly,” said Bobby Ludlum, the GOP chair of Bladen County’s Board of Elections.
Wealthier, more populous counties appear to be doing better at weathering the changes. Still, election oﬃcials acknowledged that the law may adversely aﬀect their rural counterparts.
“One size does not necessarily ﬁt all,” said Michael Dickerson, the nonpartisan director of elections in Mecklenburg County, North Carolina’s most populous. “I’m very fortunate in this county. I’ve got over a million people living here, so we can ﬁnd poll workers.”
The legislation has contributed to an already chaotic and uncertain year for election administrators in North Carolina. In addition to the diﬃculties they will encounter getting elections up and running in a state dealing with a major natural disaster, election oﬃcials are still scrambling to deal with man-made crises. A federal court in late August ruled that the state’s congressional maps were unconstitutionally gerrymandered and ordered they be redrawn immediately, sparking widespread confusion among election oﬃcials on whether the general election would move forward as planned. The court later clariﬁed that the current maps should be used for the coming election.
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A separate series of court battles over ballot language delayed the preparation and printing of election ballots, and the reduced timeline has left little ﬂexibility in case ballots need to be reprinted. Adding to all of this, federal prosecutors in early September issued subpoenas to 44 county election boards asking that millions of voter records be handed over to immigration authorities by the end of the month. While North Carolina has a handful of consequential congressional races in this fall’s election — the Cook Political Report rates four as competitive — most oﬃcials who spoke to ProPublica worry about how the early-voting changes and other laws might aﬀect 2020, when the swing state will vote for president, governor and senator. “It seems that every time we have an election, the rules are diﬀerent,” said Jake Quinn, a Democratic member of the Buncombe County Board of Elections. “We’re looking at diﬀerent district boundaries, or we have to have voter IDs, or you can’t vote out of precinct, or the hours have to be changed. This is a problem. When you change the rules for voting every single election, some people are going to get discouraged by that,” he said. “All of this is very destabilizing.” Filed under: Politics
Blake Paterson
Blake Paterson is the reporting fellow for ProPublica’s Electionland project. blake.paterson@propublica.org @blakepater
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EXHIBIT 18 Letter from Yancey County Board of Elections to
Karen Brinson Bell
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
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Gary Boone, Chairman Julia Tipton, Secretary Charles Mccurry, Member Brenda Wilson, Member Joey Miller, Member Mary Beth Tipton, Director
Yancey County Board of Elections
P.O. Box 763 · 30 East US Hwy 19E By-Pass· Burnsville, NC 28714 Phone: (828) 682-3950 · Fax: (828) 682-2209 E-mail: boe@yanceycountync.gov
Ms. Brinson Bell,
I am writing to request a temporary transfer of voters for the June 23 CD11 Primary. The Board and I want to bring to your attention several reasons for making this request, share our thoughts behind requesting the transfers and explain our game plan for making the June 23 CD11 Primary a successful and safe election for our voters in Yancey County.
First of all, due to the pandemic of COVID 19 and a large number of our poll workers bei ng the high risk age, we do not have enough people to cover all of our normal 11 precincts. Second, our local school board has asked that we not use schools as polling locations. They are preparing and delivering breakfast and lunch for our children during this outbreak and want to keep the risk of contamination down as much as possible. Currently 4 of our polling site are located in schools. Third, our county's budget is under a lot strain due to the unforeseen cost of
a COVID 19 and there is no way to predict how much cost they will incur before this is over. Fourth, couple of our
polling locations are in small buildings. Green Mountain and Brush Creek could not hold 3 judges and comply with
the 6 ft. order. When you add voter~ to these two places, with all safety measures in place, there is still no way to
vote and be in compliance. Last, we do not anticipate a large in person voter turnout. I have attached along with this letter the statics for the past Second Primaries in Yancey County. You will see that the three polling locations will meet our voter's needs.
The minute we received news of a Second Primary we began planning on how we could successfully hold a safe election. It is our main goal to protect our voter's rights and do so while keeping everyone involved in the process as safe as possible. We divided our voters out into three separate parts, West Yancey, Central Yancey and East Yancey. Once we got that division settled our goal was to narrow it down to largest and most central polling location within the three divisions. West Yancey polling location was decided to be in Cane River Precinct. One reason being Prices Creek is located in a school, both Egypt and Ramseytown vote in the same small fire station. When the school system closed down Bee Log Elementary School that was the only place we had for Egypt voters
to vote. Cane River voters vote in a new fire station with a 4000 sq. ft. meeting room. Central Yancey was decided
to be in Burnsville, but the current Burnsville polling place is in a school. We contacted the Town of Burnsville who is going to allow us to use t heir recently bu ilt Town Center. The Burnsville Town Center is located within the Burnsville precinct, all the Municipal Elections are held there. Each eligible voter in the Burnsville precinct will receive notification of the temporary move. Jacks Creek precinct is located in a school, Green Mountain votes in a small voting house that is a 12' x 14' building and Pensacola is located in a small fire station. The transfer of these
voters into Burnsville will make the largest polling location we will have so the 4500 sq. ft. ofthe Town Center will
ensure everyone is safe. East Yancey polling location was our easiest to determine. Crabtree Precinct is located in the middle of both South Toe and Brush Creek voters. Crabtree voters vote in a new fire department that has a
3800 sq. ft meeting room. South Toe is located in a school and Brush Creek vote in a small community center
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 2 of 33

where space will be an issue. We have really looked at every possible scenario and feel that these three polling locations will best serve our voter's, citizens and poll worker's safety with as little travel time as possible.
Each precinct will be kept separately in the polling locations. Ballots will be printed by precinct and D5200 will be burned to read all precincts into one tabulator. We will be using labels and ATV forms, which will be kept in separate books for each precinct. There will be one OVRD laptop in each polling location to look up the voter and locate their precinct. This will keep all lines moving smoothly and help keep confusion down as well. Once their precinct is located the voter will proceed to the check in station to state their name and verify their information. When the voter signs the ATV form they will go to the ballot station to receive their appropriate ballot. They were some concern from board members about voters getting the wrong ballot, so along with the barcode scanners we will use our 1-Stop workers at the ballot stations in all three polling locations. They are use to handling multiple ballot styles at 1-Stop and will require little to no training.
We are all in this together and want what's best for everyone involved in the election process. The Yancey County Board of Elections feel the temporary transfer of voters will help ease the struggle of finding poll workers, allow for both poll workers and voters to have enough space to be safe, and help with the financial side as well.
Sincerely,
Mary Beth ~ipton, Director
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 3 of 33

EXHIBIT 19 Letter from Madison County Board of Elections to
Karen Brinson Bell
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 4 of 33

MADISON COUNTY BOARD OF ELECTIONS
5707 US 25-70 HWY P.O. Box 142 Marshall, NC 28753
Phone: 828-649-3731 Email: madison.boe@madisoncountync.gov
April 16, 2020
Karen Brinson Bell, Executive Director North Carolina State board of Elections 430 N Salisbury Street Raleigh, NC 27603
Dear Executive Director Brinson Bell,
The COVID 19 pandemic and urgent need to protect the public and poll workers from spread of the virus during the June 23, 2020 2"d Republican Primary Election compels the Board of Elections to request voter transfers and changes in precinct polling locations to minimize COVID 19 exposure, reduce the risk of disease transmission during in-person voting, and to assist other county entities with providing much needed COVID 19 related services and facilities needs during this time.
In developing its plan, the Board of Elections consulted with poll workers and other county leadership and departments to gather needed information and consider the challenges that are directly tied to COVID 19 risks and responses. Key points of the discussion and plan development are as follows:
• Of Madison County's 12 precincts, 4 precinct polling sites (Hot Springs, Mars Hill, North Marshall, and Walnut) are located within schools. Madison County Schools Superintendent Will Hoffman requested that we obtain other non-essential sites as polling locations if at all possible as 3 of the 5 schools are providing 1,600 meals per day for delivery and pickup for children and sending supplemental food home to family on yellow buses. He continues that all schools are providing remote online learning material for 2,300 students for pick up and drop off and providing Wifi access for students and families in school parki ng lots. Additionally one school is producing protective masks for county health care providers. He concluded by adding that it is uncertain whether th e school year will be extended or remained closed beyond May 15.
5 precinct polling sites (Beech Glen, Ebbs Chapel, Grapevine, Laurel, and Spring Creek) are located within senior meal sites, all of which are currently preparing and packing meals for pickup and delivery for senior citizens who otherwise would go without. Polling sites at these locations will require a major disruption to this critical service as sites w ill need to be cleaned and set up prior to Election Day and deep cleaned and vacated on the day following. Using senior meal sites for polling sites also presents a high risk activity that could result in COVID 19
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 5 of 33

contamination and transmission among one of our most vulnerable populations. As a result, the Community Services Director is requesting that we obtain other non-essential sites as polling locations if at all possible and is communicating with the County Manager and County Health Director regarding the risks.
Of the 3 remaining precincts Sand Mush and South Marshall Precincts are located in vacant county owned buildings and Revere Rice Cove is a privately organized community center.
The Sandy Mush Precinct Building does not contain sufficient area (approximately 190 square ft) for COVID related social distancing standards and there are no other potential polling sites available in the community thus requiring a temporary precinct transfer of voters and change in poliing site. An adjacent precinct transfer is not feasible as both adjacent precincts also are requiring temporary transfer of voters and polling site changes. The only option is to transfer Sandy Mush voters to the nearby North Marshall Precinct and utilize its polling site on Election Day.
The Ebbs Chapel Precinct cannot be transferred to an adjacent precinct as the adjacent precincts (Grapevine and Beech Glen) are senior meal sites and requiring voter transfers and polling site changes. The only option is to transfer the Ebbs Chapel voters to the nearby Mars Hill Precinct and utilize its polling site on Election Day.
The remaining Revere Rice Cove Precinct has only 99 voters that are eligible to vote in this election, and had less than 10 voters cast a ballot in the last comparable second primary election dated June 7, 2016.
Important to note is that aside from the schools and senior meal sites, Madison County Board of Elections has extremely limited options for adequate polling sites even during the best of times, and county entities must coordinate and share its limited facilities and meeting venues, especially during times of crisis.
• No less important is the challenge COVID 19 presents in the county's ability to recruit and train poll workers. Additional training will now be required for poll workers in proper sanitation and social distancing procedures. Finding facilities and venues with enough space to train groups of poll workers will be challenging to say the least and require multiple bookings.
The majority of Madison County poll workers is over the age of 65 and considered high risk for complications if they contract the virus. Even though 90 percent of them currently indicate they will be available to work during the June 23'' 2°' Primary Election, the reality remains that many of them will choose not to serve as Election Day approaches and COVID 19 is still a threat.
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The need to minimize the number of poll workers needed across the county and/or in a given polling site at any given time is paramount to implement social distancing requirements and to reduce the chance of transmission or contamination.
• Madison County is a poor county with very limited resources and capacity to generate income. The response to COVID 19 is draining the county's coffer. County departments have been asked to delay payments, put a hold on ordering supplies, and cancel travel plans, among other directives to help extend the county's capacity to respond to the COVID 19 crisis.
• Finally, the Board of Elections reviewed data and considered the likelihood of a low voter turnout (less than 400 Republican and Unaffiliated voters across the county in the last comparable 2°' Primary on June 7, 2016 (See attached report.)
After much consideration and discussion of the aforementioned information and challenges, the Board of Elections began to look closely at utilizing its 3 early one stop voting sites during this election as a means to provide an adequate number of safe voting environments that minimize the risk of transmission of the virus and staff them with an adequate number of trained and experienced poll workers. It is also noteworthy to add that county level Republican Party leadership has been consulted by Board of Election members and agreed with implementing the following plan to:
• Establish 3 strategically located, consistent voting sites across the county for both early one stop and Election Day in-person voting that does not interfere with the critical needs of other county services or compromises the health, safety, and wellbeing of our citizens and that provides the greatest opportunity to provide safe, convenient in-person voting for this election. The selected sites have been utilized successfully as municipal election and early one stop voting sites for several years and county voters are familiar with them and their locations;
• Open the 3 voting sites for 14 days of voting including Election Day and spread out the in-person voter traffic over the greatest amount of time thus mitigating the need for large venues on Election Day that are now unavailable in our county due to COVID 19 issues;
• Maintain consistent early one stop voting and Election Day sites to reduce confusion regarding the polling site locations on Election Day;
• Utilize the same trained and experienced judges and poll workers for both early one-stop voting and Election Day, thus providing seamless experiences in all election activities and sanitation procedures across all 3 sites and eliminating the need to recruit and train more poll workers. The judges and poll workers have been identified, contacted, and agreed to staff the plan if approved, contingent upon being provided proper Personal Protective Equipment [PPE) and the implementation of proper sanitation and social distancing procedures;
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 7 of 33

• Secure and dedicate the polling sites to be used solely as polling sites across both the early one stop and Election Day in-person voting windows, thus reducing the need to deep clean, equip, and prepare additional COVID 19 compliant Election Day sites;
• Implement proper procedures and equipment to minimize the number of voters and poll workers in a given site at a given time so that social distancing and sanitation requirements can be observed. Some of the systems under consideration are barriers/shields at check-in stations, pagers or burner phones for voters that may choose to wait in the car rather than stand in line, floor spacers, line dividers, disposable pens for marking ballots, sanitizing surface areas before each voter, and the use of table spacers between voters and staff;
• Provide 3 judges of election at each site on Election Day and 2 early one stop voting poll workers at each site at all times during early voting.
• Provide sites on Election Day with a ring binder that will contain 30-up labels for the 4 assigned precincts (separated) and one OVRD laptop that will be available for voter lookup and street searches (if needed). Additionally, each site will have one tabulator coded to accept ballots from all 4 of the assigned precincts;
• Notify all affected voters of the temporary precinct transfers and polling site changes for this election through a USPS mailing alert and the local newspaper; and
• Save the county $8,650.00 (when compared with the cost of 1 early voting one stop site and 12 precincts) in much needed funds for other critical non-election related COVID 19 expenses (see attached budget comparison worksheet).
In closing, the Board of Elections believes this plan will provide the best opportunity to provide highly trained staff, a safe voting environment, and the greatest opportunity for in-person voting during this election, and that it has no other viable options other than sequester buildings and/or disrupt other critically needed county services during the COVID 19 crisis. Further, the plan will maximize the limited resources and funding available to the county for both election and non-election related COVID 19 needs. Any consideration you give the plan is greatly appreciation. Please do not hesitate to contact the Board of Elections if you have questions or to provide feedback.
e~ Respectfully yours, "M, ,CERA,N~~
Director of Electio ns
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 8 of 33

EXHIBIT 20 Letter from the Director of the Jackson County
Board of Elections to Karen Brinson Bell
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 9 of 33

,fACKSON COUNTY BOARD OF ELECTIONS 876 SKYLAND DR, SUITE 1
SYLVA,NC28779 Pl!ONE 828-586-7538 • FAX 828-586-1951
04/29/2020
Karen Brinson State Board of Elections Executive Director
Dear Mrs. Brinson:
The Jackson County Board of Elections is requesting to temporary transfer voterdor the 05/23/2020 2nd Primary to ensure safe practices with a sufficient number of precinct workers. No one can predict the health environment in the next several months and each county may have possible fluctuating conditions. The Board feels they can eliminate some of the chances of inadequate staffing on Election Day by combining locations, even if conditions deteriorate only days before Election Day. The polling locations were also chosen for their open areas inside and immediately outside the voting enclosures that will allow for appropriate social distancing while completing the voting process. Thank You,
Lisa Lovedahl Director Jackson County
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 10 of 33

EXHIBIT 21 Request by Macon County Board of Elections to Temporarily Transfer Voters to Another Precinct
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 11 of 33

MACON COUNTY BOARD OF ELECTIONS 5 WEST MAIN STREET, FRANKLIN, NC 28734 PHONE: 828-349-2034 FAX: 828-349-2557

Date: April 23, 2020

ATTENTION: NCSBOE

SUBJECT:

Resolution to combine the Voters from 12 Precincts {North Franklin, South Franklin, East Franklin, lotla, Union1 Millshoa!, Ellijay, Sugarfork, Smithbridge, Cartoogechaye, Burningtown and Cowee) into 1 Precinct for the June 23'd 2020 2nd Primary Election due to the COVlD-19 virus

This Resolution states that the Board Members of the Macon County Board of Elections has urianimously voted on this day, Thursday, April 23'd, 2020 to combine North Franklin, South Frankf!n,
East Franklin, lotla, Union, Millshoal1 Ellijay, Sugarfork, Smithbridge, Cartoogechaye, Burningtown and Cowee Precincts, for the Second Primary Election to be held on Tuesday, June 23rd, 2020. Voters wlll vote at the Robert Carpenter Building (the Community Building). The Community Building ls a central location in Macon County used for the Union Precinct on Election Day in other Elections; it is also used to hold One-Stop Early Voting prior to alt Elections. lt is located at 1288 Georgia Road, Franklin, NC 28734,

A notice will be given to the Voters in Macon County in our local newspapers and we will also be sending

a postcard by mail to all voters that are eligible to vote in the above Election.

)

.

\!lvwc; ~t/a'/::~/\4 Kathy Tinsley LI-/~ //"\

~

Chairman

~ Gary Dills

/

Vice Chairman

Jeffrey Grnette

John Vanhook

Member

Lynne Garrison

Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 12 of 33

Complete a separate form for each transfer polling place. _Attach a map of all precincts and mark which precinct polling place will be open~ and which polling p/ace(s) will be transferred.

REQUEST TO TRANSFER VOTERS WITHIN COUNTY (COMPLETE TABLE BELOW)

PCTl

PCT 2

PCT3

Yes D No

Yes D No

~ NJi!RTH CAR()UNA
~ s1:i1c1\borrdtiflHOOhim>

,i,. [j],{e, D No G

DYes D No

DYesDNo
Revised 2020.04

Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 13 of 33

REQUEST TO TEMPORARILY TRANSFER VOTERS TO ANOTHER PRECINCT 2020 SECOND PRIMARY

~ 1/d 3/a-t)~() Resolution was adopted on----''--,,f-"--1.,..._.."---"-----

When such a resolution has been adopted by the county board of elections to assign voters from more than one precinct to the same precinct, then the county board of elections shall maintain separate registration and voting records, .. . , so as to properly identify the precinct in which such voters reside.

I w!J.1.provide separate: r0'AlV labels
0 OVRD laptop
OOther_ __ _

Ballots will be coded by style and actual precinct will be recorded on ballots
D Ballots will be coded by precinct
The board shall give 45 days' notice thereof prior to the next primary or election
{Check to confirm all methods ofnotice that you will use to comply with this requirement):
~ i c e shall be given by advertisement in a newspaper having general circulation in the county; ~osting a copy of the resolution at the courthouse door and at the office of the county board of elections;
lB""~ by mailing a copy of the resolution to the chairman of every political party in the county.
~Notice will additionally be made on a radio or television station or both, but such notice shall be in addition tot ewspaper and other required notice.
No later than 30 days prior to the primary or election, the county board of elections shall mail a notice of precinct change to each registered voter who as a result of the change will be assigned to a different voting place.

I have provided the SBOE with a copy of the board resolution/agreement. Other supporting information is

at~ed describing why this request is being made.

~I have entered the contest AND all candidates in Election Setup.

s;gna~ tu"LJ#~~/ County

•

Director's

Date

APPROVED BY
~

::::CTOR;{d,f ren Brinson ~

Revised 2020.04
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 14 of 33

May 8, 2020

Macon County Board of Elections
5 WEST MAIN STREET, FRANKLIN, NC 28734 PHONE: 828-349-2034 FAX: 828-349-2557
EMAIL: mthibault@maconnc.org

Ms. Karen Brinson Bell, Executive Director North Carolina State Board of Elections 430 Salisbury Street - Raleigh, North Carolina 27601
REQUEST FOR CONSOLIDATION(S) AND COLLABORATION OF AVAILABLE RESOURCES IN RESPONSE TO THE COVID 19 PANDEMIC
Dear Executive Director Brinson Bell: Macon County Board of Elections Board Members (approved April 23, 2020), Macon County Manager, Derek Roland, and Board of Elections staff are in agreement that the COVID 19 pandemic causes an emergency plan of action to be initiated for the upcoming Second Primary Election. Our ultimate goal is to ensure voter validation, maintain safe voting environments, and create a cost-effective managenient process that results in a successful election experience for everyone. We have assessed the data and voting history which is based on the deliberations described below.
• Macon County plans to combine our original fifteen (15) precincts into three (3) for voters on Election Day, June 23, 2020. Many of the current precincts are located in community centers or public buildings of which are dosed due to COVlD 19. In addition the majority of these smaller community sites have less than 200 square feet of designated voter space, which does not allow standard social distancing requirements.
• North Franklin Precinct- is located in the downstairs of the Franklin Town Hall building in a room less than 200 square feet of space, not enough space for the social distancing.

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4 of the poll workers out of the 5 that we use on Election Day are in the high risk category and in good contentious we could not allow them to work.
• South Franklin Precinct- is located in a small room off of the entrance of the Macon County library; it is Jess than 200 square feet of space, not enough space for the social distancing. 3 of the poll worker's are in the high risk category.
• East Franklin Precinct- is located in the Environmental building in Franklin and the building has less than 200 square feet of space, not enough space for social distancing. 2 of the poll workers are in the high risk category.
• lotla Precinct- is located in a small room in the Macon County Airport and has less than 200 square feet of space. 3 of the poll workers are in the high risk category. 2 are willing to work on Election Day if it is held in a larger location.
• Millshoal Precinct- is located in a Community Center in Franklin. The facility is over 100 years old. It has less than 200 square feet of space, not enough space for social distancing. All 5 of the poll workers we use on Election Day is this precinct are over the age of 75 and are in the high risk category.
• Ellijay Precinct- is located in a small room above the Cullasaja Fire department. The room has less than 200 square feet of space, not enough space for social distancing. 3 of the poll workers are over the age of75 and are in the high risk category.
• Sugarfork Precinct-is located in the old Pine-Grove School house. This building is over 100 years old and has less than 100 square feet of space, not enough for social distancing. 2 of the poll workers are over the age of 75.
• Smithbridge Precinct- is located in a room above the Otto Fire department; this room is closed due to COVID-19 concerns.
• Cartoogechaye Precinct- is located in a room off of the Macon Fire and Rescue; this room is closed due to COVID-19 concerns.
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 16 of 33

• Burningtown Precinctw is located in an old Fire department; this room is dosed due to COVID19 concerns.
• Cowee Precinct· is located in a room in the old Cowee School. This room is less than 200 square feet of space, not enough space for social distancing. 4 ofthe 5 poll workers are over the age of75 and are at high risk.
• Our plan is to combine North Franklin, South Franklin, and East Franklin, lotla, Union, Millshoal, Ellijay, Sugarfork, Smithbridge, Cartoogechaye, Burningtown and Cowee communities and set up a central voting location in the Macon County Robert Carpenter Community Center located at 1288 Georgia Road, Franklin, NC. This location is now used for Macon County as an early voting site and is used on Election Day for the Union precinct. The site is approximately 2500 square feet. It has recently been renovated and meets the social distancing requirements, accommodates driVe·in voting as needed, and ensures a manageable and _safe election operation during this unprecedented COVJD 19 pandemic.
• We will combine the Highlands and Flats precincts based on their geographic proximity to vote at the Highlands Civic Center located at 600 N. 4th Street, Highlands, NC 28741. These two precincts are approximately nine minutes apart. Based on the 2016 primary voter statistics, these two precincts made up 4.'9% of votes. In the 2016 second Primary the Flats precinct had 34 ballots cast on Election Day. The Civic Center site has 1500 square feet which is ample room for social distancing requirements.
• The Nantahala precinct will remain separate as that area is remote and only 565 voters are located in the Nantahala community. The 2016 primary voter statistics shows 3.9% of votes came from Nantahala.
• The Macon County Board of Elections recent research reflects out of our 103 poll workers, 73 are willing to serve only if social distancing protocols and proper PPE supplies are available. The remaining 30 poll workers fall into the high~risk category for virus contraction, and by combining precincts we would have ample workers to cover all
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 17 of 33

voting sites. These poll workers are already trained in election procedures and would only require minimal COVID 19 sanitation procedure training.
• Operating fifteen (15) precincts creates a burdensome budget issue that affects both the Macon County Board of Elections finances and the county budget as well. Currently our BOE budget that expires June 30, 2020, is at 85-100% of its maximum spending costs due to concurrent expenses as a result of the COVID 19 pandemic. In addition we had the expense of the postponement of the Second Primary and cost of ballots that were printed, only to be discarded. Combining the precincts will maximize overall voting operations and eliminate budget shortfalls.
• Macon County consists of a high percentage of retirees who are abiding by the Governor's stay-at-home orders and have not left their homes since the COVID 19 pandemic began. We have had an increase in phone calls in the past few weeks requesting Absentee by Mail ballots. I predict the majority of our voters will use the One-Stop Early Voting or Absentee by mail for this particular election due to the pandemic risks.
• If our plan is approved our staff on Election Day will have separate area books, labels, and machines (MlOO) for each of the precincts in the two temporary precincts.
• Voters will be notified of precinct changes in the local newspaper's and by a mass post card mailing. Our BOE website and social media announcements-will be kept up to date so voters can understand the changes in effect and stay informed of voting details and announcements.
Combining the precincts is a logical solution for several reasons:
1) Combining precincts will minimize COVID 19 exposure and ensure maximum safety of voters and workers;
2) The plan will utilize facility locations that meet safety standards and social distancing requirements;
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 18 of 33

3) All parties will combine resources and minimize financial burdens to the Board of Elections and Macon County;
4) The proposed plan will protect poll workers and cover voting sites with qualified workers who only need minimal training within an urgent timeline;
5) All parties agree that this plan meets the NC State Board of Elections Emergency Executive Order requirements.
Please feel free to contact me if you need further justification. I look forward to your approval of our plan to temporarily transfer voters and ensure a safe and efficient election during the June 23, 2020 Second Republican Primary in Macon County. As we follow social distancing practices during this extraordinary situation across our state and our nation, may we all stay safe and face the future with valuable and historical lessons learned. Sincerely,
Melanie Thibault Macon County Board of Elections Director
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EXHIBIT 22 State Board, DMV Partner to Expand Online Voter
Registration Service (Mar. 30, 2020), published by the
N.C. State Board of Elections
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 20 of 33

N�RTH CAROLINA
State Board of Elections

Press Releases

Release: IMMEDIATE Date: 3/30/2020

State Board, DMV Partner to Expand Online Voter Registration Service
Raleigh, N.C. - The State Board of Elections and N.C. Division of Motor Vehicles have launched a service to allow NCDMV customers to apply to register to vote or update existing voter registration information online.

This is a standalone service that does not require the user to complete a NCDMV transaction, such as a license renewal or duplicate, at the same time.

The free service comes at a time when many county boards of elections have limited access or are closed to the public, and while residents are being asked to stay home because of the spread of COVID-19.

Existing NCDMV customers with a North Carolina driver's license or NCDMV-issued ID may apply to register to vote or update voter address or political party information through the NCDMV Voter Registration web 1;2ag.§.... The application currently does not allow voters to change their name.

All voter registration services are free.

"We're excited for this new service. It's another way we can help North Carolina voters while we practice social distancing," said Karen Brinson Bell, executive director of the State Board of Elections.

"The NCDMV already offered online voter registration services to customers completing transactions," said NCDMV Commissioner Torre Jessup. "It made sense to collaborate with the State Board of Elections to now offer that same process without requiring a transaction so we could provide a valuable and convenient service for North Carolinians."

https://www.ncsbe.gov/Press-Releases?udt_2226_param_detail=2195

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Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 21 of 33

Press Releases
Individuals using the online process will authorize the signature NCDMV has on file for them to be affixed to their voter registration application. NCDMV's vendor, Paylt, is hosting the service. A link to the voter registration service also is available through the State Board of Elections' website here: htti;is://www.ncsbe.gov/Voters/Registering-to-Vote . County boards of elections will continue to confirm the eligibility of online registrants through standard procedures, including verification mailings. Eligible North Carolina residents who are not NCDMV customers must still fill out a paper voter registration form and return it to their county board of elections to register to vote or make changes to their voter registration. To check your N.C. voter registration, go here: htti;is://vt.ncsbe.gov/RegLkuP-L_.
###
«
Media Kits
Topic Link to Portal Congressional District 9 Hearing Link
Copyright (c) 2020 NCSBE I Privacy Statement I Terms Of Use

https://www.ncsbe.gov/Press-Releases?udt_2226_param_detail=2195

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EXHIBIT 23 North Carolina's COVID-19 Response for Individuals and Families, N.C. Dep't of Health and
Human Services
Exhibit to Declaration of Allison J. Riggs in support of Plaintiffs Motion for a Preliminary Injunction
Case 1:20-cv-00457-WO-JLW Document 12-9 Filed 06/05/20 Page 23 of 33

NCDHHS COVID-19

Select Language T

Individuals and Families
Stay Home, Save Lives
North Carolina has moved into a Safer At Home Phase 2 (https://www.nc.gov/covid-19/staying-ahead-curve). as outlined in Executive Order 141 (https://files.nc.gov/govemor/documents/files/E0141-Phase-2.pdf). Phase 2 Lifts the Stay At Home order moving into a Safer At Home recommendation. especially for people at high risk {/information/individuals-families-communities/individuals-higher-risk). for serious illness. Teleworking is also urged when possible. Read the FAQ� (https://files.nc.gov/govemor/documents/files/Phase-2-FAQ.pdf) for more information.
View What Phase 2 Means for NC (https://files.nc.gov/covid/documents/Phases­ List.pdf)
Staying healthy
There are some common sense measures (https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html? CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Fprevention.html) everyone can take to protect themselves and others from the spread of respiratory illnesses Like COVID-19.
• Avoid close contact with people who are sick and put distance between yourself and other people.
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• SUP-P-Orting Individuals with Autism Through Uncertain Times
(https://afirm.fpg.unc.edu/supporting-individuals-autism-through-uncertain-times) is a free UNC
toolkit available in multiple Languages that includes resources (https://afirm.fpg.unc.edu/sites/afirm.fpg.unc.edu/files/covid­ resources/Supporting%20Individuals%20with%20Autism%20through%20Uncertian%20Times%20Full%20l for families and caregivers supporting individuals, including young children, with autism spectrum disorder.
Coping with Stress
• HeLP-ing Children CoP-e with Changes Resulting from COVID-19 (https://www.nasponline.org/resources-and-publications/resources-and-podcasts/school-climate-safety-and­ crisis/health-crisis-resources/helping-children-cope-with-changes-resulting-from-covid-19) from the National Association of School Psychologists provides tips on helping families adjust to a "new normal."
• The Parent/Caregiver Guide to HeLP-ing Families CoP-e with the Coronavirus Disease (https://www.nctsn.org/sites/default/files/resources/fact-sheet/outbreak_factsheet_1.pdt) from the National Child Traumatic Stress Network includes age-appropriate tips for helping children cope with stress and uncertainty.
• TiP-S for Parents during Times of Trauma (https://parentsasteachers.org/news/2020/4/1/tips-for-parents-during-times-of-trauma) , available from Parents As Teachers, outlines ways caregivers can maintain routines and respond to children's needs. Parents and caregivers can also search (https://parentsasteachers.org/program-locator-1) for a Parents As Teachers program in their area.
Parenting & Caregiving Courses, Training, & Online Communities
• American Academy of Pediatrics (https://www.healthychildren.org/English/Pages/default.aspx) has information on children and coronavirus and helpful parenting tips.
• TriP-Le P Online (https://www.triplep-parenting.com/nc-en/fmd-help/triple-p-online/toddlers-to-tweens/? itb=d9a5cf487c8317dba2cc8fafcf8al 8a8&gclid=CjwKCAjwhODOBRAQEiwAK7JHmFQLtNt33zO_ffnaO� is a free parenting course that provides flexible, practical ways to develop skills, strategies and confidence to handle any parenting situation. The course now includes a Parenting During COVID-19 module and tip sheets. Resources are available in English and Spanish.
• Prevent Child Abuse NC provides resources (https://preventchildabuse.org/coronavirus-resources/) for staying connected, remaining active and engaged as a family, and managing stress and anxiety.
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457 MOTION TO INTERVENE

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,

Proposed Intervenors.

Case 1:20-cv-00457-WO-JLW Document 16 Filed 06/10/20 Page 1 of 4

MOTION TO INTERVENE BY HON. PHILIP E. BERGER, IN HIS OFFICIAL CAPACITY AS PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE,
AND HON. TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES Pursuant to Federal Rule of Civil Procedure 24, Philip E. Berger, President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, Speaker of the North Carolina House of Representatives, respectfully move to intervene to oppose Plaintiffs’ challenges to North Carolina election law. The motion should be granted for the reasons stated in the accompanying brief in support. Proposed Intervenors also request that their motion be granted expedited consideration to ensure they can participate as parties in the preliminary injunction proceedings. Plaintiffs filed their preliminary injunction motion on June 5, 2020, and in that motion they requested expedited consideration, asking that the response be due within 14 days and the reply within 7 days of the response. See Doc. 9 at 7. On June 8, the Court directed the parties to file a joint status report with the Court setting forth a proposed briefing schedule by 5 p.m. on June 10. Whatever the briefing schedule ends up being, Proposed Intervenors need to be admitted into the case in advance of the response deadline to ensure that they can submit evidence in opposition to Plaintiffs’ motion, which is supported by hundreds of pages of exhibits. And they also need to be a party to ensure that they can file a notice of appeal if the preliminary injunction motion is granted. For these reasons, Proposed Intervenors request that their motion be considered on an expedited basis that allows them to participate fully as parties in the preliminary injunction proceedings.

Dated: June 10, 2020
/s/ Nicole J. Moss COOPER & KIRK, PLLC

Respectfully submitted,
COOPER & KIRK, PLLC David H. Thompson*
1

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Nicole J. Moss (State Bar No. 31958) 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 nmoss@cooperkirk.com Local Civil Rule 83.1 Counsel for Proposed Intervenors

Peter A. Patterson* Brian W. Barnes* Steven J. Lindsay* 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 dthompson@cooperkirk.com
Counsel for Proposed Intervenors *Notice of Appearance Forthcoming

2
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CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that, on June XX, 2020, I electronically filed the foregoing Motion and the accompanying Answer with the Clerk of the Court using the CM/ECF system.
/s/ Nicole J. Moss Nicole J. Moss
3
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457
ANSWER OF PROPOSED INTERVENORS 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.

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,

Proposed Intervenors.

1

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Proposed Intervenors 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, by and through counsel, answer Plaintiffs’ First Amended Complaint, Doc. 8, as follows:
1. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 1 of the First Amended Complaint; thus, they are deemed denied.
2. The allegations in Paragraph 2 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the remaining allegations in Paragraph 2 of the First Amended Complaint; thus, they are deemed denied.
3. The allegations in Paragraph 3 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 3 of the First Amended Complaint.
4. The allegations in Paragraph 4 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 4 of the First Amended Complaint.
5. The allegations in Paragraph 5 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 5 of the First Amended Complaint; thus, they are deemed denied.
6. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 6 of the First Amended Complaint; thus, they are deemed denied.
7. The allegations in Paragraph 7 of the First Amended Complaint contain
2
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conclusions of law which require no answer. Proposed Intervenors deny any remaining factual allegations in Paragraph 7 of the First Amended Complaint.
8. The allegations in Paragraph 8 of the First Amended Complaint contain
conclusions of law which require no answer. Sentence 3 in Paragraph 8 references statutes; those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 8 of the First Amended Complaint.
9. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 9 of the First Amended Complaint; thus, they are deemed denied.
10. The allegations in Paragraph 10 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 10 of the First Amended Complaint; thus, they are deemed denied.
11. The allegations in Paragraph 11 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 11 of the First Amended Complaint; thus, they are deemed denied.
12. The allegations in Paragraph 12 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 12 of the First Amended Complaint; thus, they are deemed denied.
13. Proposed Intervenors admit that venue is proper in this Court. Proposed
3
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Intervenors lack sufficient information to respond to any factual allegations in Paragraph 13 of the First Amended Complaint; thus, they are deemed denied.
14. Proposed Intervenors lack sufficient information to respond to the allegations
about the identity, purpose, and activities of Plaintiff Democracy North Carolina as alleged in Paragraph 14 of the First Amended Complaint; thus, they are deemed denied. Proposed Intervenors deny any remaining allegations in Paragraph 14 of the First Amended Complaint.
15. Proposed Intervenors lack sufficient information to respond to the allegations
about the identity, purpose, and activities of Plaintiff League of Women Voters of North Carolina as alleged in Paragraph 15 of the First Amended Complaint; thus, they are deemed denied. Proposed Intervenors deny any remaining allegations in Paragraph 15 of the First Amended Complaint.
16. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 16 of the First Amended Complaint; thus, they are deemed denied.
17. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 17 of the First Amended Complaint; thus, they are deemed denied.
18. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 18 of the First Amended Complaint; thus, they are deemed denied.
19. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 19 of the First Amended Complaint; thus, they are deemed denied.
20. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 20 of the First Amended Complaint; thus, they are deemed denied.
21. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 21 of the First Amended Complaint; thus, they are deemed denied.
4
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22. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 22 of the First Amended Complaint; thus, they are deemed denied.
23. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 23 of the First Amended Complaint; thus, they are deemed denied.
24. Proposed Intervenors admit that the North Carolina State Board of Elections is
the agency responsible for the administration of the election laws of the State of North Carolina as alleged in Paragraph 24 of the First Amended Complaint.
25. Proposed Intervenors admit that Damon Circosta is the Chair of the North
Carolina State Board of Elections and that he is sued in his official capacity as alleged in Paragraph 25 of the First Amended Complaint.
26. Proposed Intervenors admit that Stella Anderson is the Secretary of the North
Carolina State Board of Elections and that she is sued in her official capacity as alleged in Paragraph 26 of the First Amended Complaint.
27. Proposed Intervenors admit that Ken Raymond is a Member of the North
Carolina State Board of Elections and that he is sued in his official capacity as alleged in Paragraph 27 of the First Amended Complaint.
28. Proposed Intervenors admit that Jeff Carmon III is a Member of the North
Carolina State Board of Elections and that he is sued in his official capacity as alleged in Paragraph 28 of the First Amended Complaint.
29. Proposed Intervenors admit that David C. Black is a Member of the North
Carolina State Board of Elections and that he is sued in his official capacity as alleged in Paragraph 29 of the First Amended Complaint.
30. Proposed Intervenors admit that Karen Brinson Bell is the Executive Director
5
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of the North Carolina State Board of Elections and that she is sued in her official capacity as alleged in Paragraph 30 of the First Amended Complaint.
31. Proposed Intervenors admit that the North Carolina Department of
Transportation is the agency that implements the online voter registration system in the State of North Carolina as alleged in Paragraph 31 of the First Amended Complaint.
32. Proposed Intervenors admit that J. Eric Boyette is the Secretary of the North
Carolina Department of Transportation and that he is sued in his official capacity as alleged in Paragraph 32 of the First Amended Complaint.
33. Proposed Intervenors admit that the North Carolina Department of Health and
Human Services is the agency that administers online public benefits renewal in the State of North Carolina as alleged in Paragraph 33 of the First Amended Complaint.
34. Proposed Intervenors admit that Dr. Mandy Cohen is the Secretary of the North
Carolina Department of Health and Human Services and that she is sued in her official capacity as alleged in Paragraph 34 of the First Amended Complaint.
35. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 35 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 35 of the First Amended Complaint relies on documents produced by the World Health Organization, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
36. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 36 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 36 of the First Amended Complaint relies on documents produced by the U.S.
6
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Centers for Disease Control and Prevention, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
37. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 37 of the First Amended Complaint; thus, they are deemed denied.
38. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 38 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 38 of the First Amended Complaint relies on documents produced by the U.S. Centers for Disease Control and Prevention, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
39. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 39 of the First Amended Complaint; thus, they are deemed denied.
40. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 40 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 40 of the First Amended Complaint relies on documents produced by the U.S. Centers for Disease Control and Prevention and other scientific studies, those documents and studies speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
41. Proposed Intervenors admit that Governor of North Carolina Roy Cooper
declared a State of Emergency on March 10, 2020 as alleged in sentence 1 in Paragraph 41 of the First Amended Complaint. Proposed Intervenors lack sufficient information to respond to
7
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the other factual allegations in Paragraph 41; thus, they are deemed denied.
42. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 42 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 42 of the First Amended Complaint relies on documents produced by the Office of North Carolina Governor Roy Cooper, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
43. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 43 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 43 of the First Amended Complaint relies on documents produced by the Office of North Carolina Governor Roy Cooper, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
44. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 44 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 44 of the First Amended Complaint relies on documents produced by the North Carolina Department of Health and Human Services, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
45. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 45 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 45 of the First Amended Complaint relies on documents produced by the Office of North Carolina Governor Roy Cooper, those documents speak for themselves and are
8
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evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
46. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 46 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 46 of the First Amended Complaint relies on statements or documents produced by Dr. Anthony Fauci or the National Institute of Allergy and Infectious Diseases, those statements or documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
47. Proposed Intervenors admit that the general election for all federal offices,
including the presidential election, will be held on November 3, 2020 as alleged in sentence 1 in Paragraph 47 of the First Amended Complaint. Proposed Intervenors lack sufficient information to information to respond to any other factual allegations in Paragraph 47 of the First Amended Complaint; thus, they are deemed denied.
48. The allegations in Paragraph 48 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 48 of the First Amended Complaint; thus, they are deemed denied.
49. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 49 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 49 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs
9
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from this evidence, that characterization is denied.
50. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 50 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 50 of the First Amended Complaint relies on documents produced by Board of Election Officials from eleven counties in North Carolina’s 11th Congressional District, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
51. Sentences 3 and 4 in Paragraph 51 of the First Amended Complaint reference
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to any other factual allegations in Paragraph 51 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 51 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
52. Sentence 1 in Paragraph 52 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to any other factual allegations in Paragraph 52 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 52 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs
10
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from this evidence, that characterization is denied.
53. Sentences 1 and 2 in Paragraph 53 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to any other factual allegations in Paragraph 53 of the First Amended Complaint; thus, they are deemed denied.
54. Sentence 2 in Paragraph 54 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to any other factual allegations in Paragraph 54 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 54 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
55. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 55 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 55 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
56. The first half of sentence 2 in Paragraph 56 of the First Amended Complaint
references a statute; that statute speaks for itself. The allegations in the second half of sentence 2 in Paragraph 56 of the First Amended Complaint contain conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any other factual
11
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allegations in Paragraph 56 of the First Amended Complaint; thus, they are deemed denied.
57. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 57 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 57 of the First Amended Complaint relies on documents produced by the Wisconsin Elections Commission, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
58. Sentence 2 in Paragraph 58 of the First Amended Complaint contains
conclusions of law that require no answer. To the extent that Paragraph 58 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors lack sufficient information to respond to any other factual allegations in Paragraph 58 of the First Amended Complaint; thus, they are deemed denied.
59. Sentences 1 and 2 in Paragraph 59 of the First Amended Complaint reference
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors deny any remaining allegations in Paragraph 59 of the First Amended Complaint.
60. Paragraph 60 of the First Amended Complaint purports to characterize SB 683;
this document speaks for itself and is evidence of its contents and to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny the remaining allegations in Paragraph 60 of the First Amended Complaint.
12
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61. Sentence 2 in Paragraph 61 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors deny the remaining allegations in Paragraph 61 of the First Amended Complaint.
62. Sentence 1 in Paragraph 62 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors deny the remaining allegations in Paragraph 62 of the First Amended Complaint.
63. Sentence 2 in Paragraph 63 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors deny any remaining allegations in Paragraph 63 of the First Amended Complaint.
64. Paragraph 64 contains conclusions of law that require no answer. Proposed
Intervenors lack sufficient information to respond to the allegations in Paragraph 64 of the First Amended Complaint; thus, they are deemed denied.
65. Sentence 1 in Paragraph 65 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. To the extent that Paragraph 65 of the First Amended Complaint relies on documents produced by Karen Brinson Bell, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 65 of the First Amended Complaint.
66. Sentences 2 and 3 in Paragraph 66 of the First Amended Complaint reference
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to the allegations in Paragraph 66 of the First Amended Complaint; thus, they are deemed denied.
13
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67. Sentence 1 in Paragraph 67 of the First Amended Complaint references a
number of statutes; those statutes speak for themselves and are evidence of their contents. To the extent that Paragraph 67 of the First Amended Complaint relies on documents produced by the National Conference of State Legislatures and the U.S. Census Bureau, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 67 of the First Amended Complaint.
68. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 68 of the First Amended Complaint; thus, they are deemed denied.
69. Paragraph 69 of the First Amended Complaint includes conclusions of law that
require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 69 of the First Amended Complaint; thus, they are deemed denied.
70. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 70 of the First Amended Complaint; thus, they are deemed denied.
71. Paragraph 71 of the First Amended Complaint includes conclusions of law that
require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 71 of the First Amended Complaint; thus, they are deemed denied.
72. Paragraph 72 of the First Amended Complaint includes conclusions of law that
require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 72 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 72 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are
14
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evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
73. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 73 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 73 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
74. Paragraph 74 of the First Amended Complaint includes conclusions of law that
require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 74 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 74 of the First Amended Complaint relies on documents produced by the Centers for Disease Control and Prevention, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
75. Sentence 1 in Paragraph 75 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 75 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 75 of the First Amended Complaint relies on documents produced by the North Carolina State Board of Elections, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
15
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76. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 76 of the First Amended Complaint; thus, they are deemed denied. To the extent that Paragraph 76 of the First Amended Complaint relies on documents produced by the U.S. Election Assistance Commission, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied.
77. To the extent that Paragraph 77 of the First Amended Complaint relies on
letters sent from Karen Brinson Bell and Board of Election Members in Congressional District 11, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors lack sufficient information to respond to any other allegations in Paragraph 77 of the First Amended Complaint; thus, they are deemed denied.
78. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 78 of the First Amended Complaint; thus, they are deemed denied.
79. Sentence 2 in Paragraph 79 of the First Amended Complaint references
statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to any other allegations in Paragraph 79 of the First Amended Complaint; thus, they are deemed denied.
80. Paragraph 80 of the First Amended Complaint purports to characterize the
legislative history of North Carolina’s uniform hour requirement for voting sites; documents from the legislative history speak for themselves and are evidence of their contents, and to the extent that the characterization in the First Amended Complaint differs from this evidence,
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that characterization is denied. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 80 of the First Amended Complaint; thus, they are deemed denied.
81. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 81 of the First Amended Complaint; thus, they are deemed denied.
82. Sentences 2, 3, and 4 in Paragraph 82 of the First Amended Complaint
reference statutes; those statutes speak for themselves and are evidence of their contents. Proposed Intervenors lack sufficient information to respond to any other allegations in Paragraph 82 of the First Amended Complaint; thus, they are deemed denied.
83. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 83 of the First Amended Complaint; thus, they are deemed denied.
84. Proposed Intervenors reallege and reincorporate the responses to the
allegations in Paragraphs 1 through 83 of this Answer.
85. To the extent that Paragraph 85 of the First Amended Complaint purports to
characterize the Supreme Court’s decision in Burdick v. Takushi, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 85 of the First Amended Complaint.
86. To the extent that Paragraph 86 of the First Amended Complaint purports to
characterize the Supreme Court’s decision in Clingman v. Beaver and the Fourth Circuit’s decision in NAACP v. McCrory, those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining
17
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allegations in Paragraph 86 of the First Amended Complaint.
87. The allegations in Paragraph 87 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 87 of the First Amended Complaint.
88. The allegations in Paragraph 88 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 88 of the First Amended Complaint.
89. The allegations in Paragraph 89 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 89 of the First Amended Complaint.
90. The allegations in Paragraph 90 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 90 of the First Amended Complaint.
91. The allegations in Paragraph 91 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 91 of the First Amended Complaint.
92. The allegations in Paragraph 92 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 92 of the First Amended Complaint.
93. The allegations in Paragraph 93 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 93 of the First Amended Complaint.
94. The allegations in Paragraph 94 of the First Amended Complaint contain
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conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 94 of the First Amended Complaint.
95. The allegations in Paragraph 95 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations in Paragraph 95 of the First Amended Complaint regarding the individual Plaintiffs; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 95 of the First Amended Complaint.
96. The allegations in Paragraph 96 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 96 of the First Amended Complaint.
97. The allegations in Paragraph 97 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations in Paragraph 97 of the First Amended Complaint regarding the individual Plaintiffs; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 97 of the First Amended Complaint.
98. The allegations in Paragraph 98 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 98 of the First Amended Complaint purports to characterize the Supreme Court’s decision in Burdick v. Takushi, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 98 of the First Amended Complaint.
99. The allegations in Paragraph 99 of the First Amended Complaint contain
19
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conclusions of law which require no answer. To the extent that Paragraph 99 of the First Amended Complaint purports to characterize the Supreme Court’s decision in Clingman v. Beaver and the Fourth Circuit’s decision in NAACP v. McCrory, those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 99 of the First Amended Complaint.
100. The allegations in Paragraph 100 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 100 of the First Amended Complaint; thus, they are deemed denied.
101. The allegations in Paragraph 101 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 101 of the First Amended Complaint.
102. The allegations in Paragraph 102 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 102 of the First Amended Complaint.
103. The allegations in Paragraph 103 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 103 of the First Amended Complaint purports to characterize the Northern District of Illinois’ decision in Ury v. Santee and the Sixth Circuit’s decision in League of Women Voters of Ohio v. Brunner, those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph
20
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103 of the First Amended Complaint.
104. The allegations in Paragraph 104 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 104 of the First Amended Complaint; thus, they are deemed denied.
105. The allegations in Paragraph 105 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 105 of the First Amended Complaint.
106. The allegations in Paragraph 106 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 106 of the First Amended Complaint purports to characterize the Northern District of Illinois’ decision in Ury v. Santee, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 106 of the First Amended Complaint.
107. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 107 of the First Amended Complaint; thus, they are deemed denied.
108. The allegations in Paragraph 108 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 108 of the First Amended Complaint.
109. The allegations in Paragraph 109 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations regarding the Plaintiffs in Paragraph 109 of the First Amended
21
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Complaint; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 109 of the First Amended Complaint.
110. The allegations in Paragraph 110 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 110 of the First Amended Complaint.
111. The allegations in Paragraph 111 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 111 of the First Amended Complaint.
112. The allegations in Paragraph 112 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 112 of the First Amended Complaint.
113. Proposed Intervenors reallege and reincorporate the responses to the First
Amended Complaint’s allegations in Paragraphs 1 through 112 of this Answer.
114. The allegations in Paragraph 114 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 114 of the First Amended Complaint.
115. The allegations in Paragraph 115 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 115 of the First Amended Complaint.
116. The allegations in Paragraph 116 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 116 of the First Amended Complaint purports to characterize the Eleventh Circuit’s decision in McCabe v. Sharrett, the Sixth Circuit’s decision in Kallstrom v. City of Columbus, and the Supreme
22
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Court’s decision in Dunn v. Blumstein, those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 116 of the First Amended Complaint.
117. The allegations in Paragraph 117 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 117 of the First Amended Complaint purports to characterize the Supreme Court’s decision in Missouri v. McNeely and the Sixth Circuit’s decision in Guertin v. Michigan, those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 117 of the First Amended Complaint.
118. The allegations in Paragraph 118 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 118 of the First Amended Complaint purports to characterize the Sixth Circuit’s decision in Guertin v. Michigan, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 118 of the First Amended Complaint.
119. The allegations in Paragraph 119 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 119 of the First Amended Complaint; thus, they are deemed denied.
120. The allegations in Paragraph 120 of the First Amended Complaint contain
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conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 120 of the First Amended Complaint.
121. The allegations in Paragraph 121 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 121 of the First Amended Complaint.
122. Proposed Intervenors reallege and reincorporate the responses to the First
Amended Complaint’s allegations in Paragraphs 1 through 121 of this Answer.
123. The allegations in Paragraph 123 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 123 of the First Amended Complaint purports to characterize the Supreme Court’s decision in Norman v. Reed, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 123 of the First Amended Complaint.
124. The allegations in Paragraph 124 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations regarding the Plaintiffs in Paragraph 124 of the First Amended Complaint; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 124 of the First Amended Complaint.
125. The allegations in Paragraph 125 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 125 of the First Amended Complaint.
126. Proposed Intervenors reallege and reincorporate the responses to the First
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Amended Complaint’s allegations in Paragraphs 1 through 125 of this Answer.
127. The allegations in Paragraph 127 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 127 of the First Amended Complaint purports to characterize the Fourteenth Amendment of the United States Constitution, the Fourth Circuit’s decision in United States v. Baker, and the Sixth Circuit’s decision in Wilkinson v. Austin, the text of the Constitution and those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 127 of the First Amended Complaint.
128. The allegations in Paragraph 128 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 128 of the First Amended Complaint purports to characterize the Fourth Circuit’s decision in Snider International Corp. v. Town of Forest Heights, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 128 of the First Amended Complaint.
129. The allegations in Paragraph 129 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 129 of the First Amended Complaint purports to characterize the Fourth Circuit’s decision in Snider International Corp. v. Town of Forest Heights, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 129 of the First Amended Complaint.
25
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130. The allegations in Paragraph 130 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 130 of the First Amended Complaint purports to characterize the Fourth Circuit’s decisions in Snider International Corp. v. Town of Forest Heights and Sciolino v. City of Newport News, Va., those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 130 of the First Amended Complaint.
131. The allegations in Paragraph 131 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 131 of the First Amended Complaint purports to characterize the Supreme Court’s decision in Cleveland Board of Education v. Loudermill and the Fourth Circuit’s decision in Sciolino v. City of Newport News, Va., those decisions speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 131 of the First Amended Complaint.
132. The allegations in Paragraph 132 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent that Paragraph 132 of the First Amended Complaint purports to characterize the Supreme Court’s decision in Gill v. Whitford, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining allegations in Paragraph 132 of the First Amended Complaint.
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133. The allegations in Paragraph 133 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 133 of the First Amended Complaint.
134. The allegations in Paragraph 134 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 134 of the First Amended Complaint.
135. The allegations in Paragraph 135 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations regarding the Plaintiffs in Paragraph 135 of the First Amended Complaint; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 135 of the First Amended Complaint.
136. The allegations in Paragraph 136 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 136 of the First Amended Complaint.
137. The allegations in Paragraph 137 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 137 of the First Amended Complaint.
138. The allegations in Paragraph 138 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 138 of the First Amended Complaint.
139. The allegations in Paragraph 139 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 139 of the First Amended Complaint.
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140. Proposed Intervenors reallege and reincorporate the responses to the First
Amended Complaint’s allegations in Paragraphs 1 through 139 of this Answer.
141. The allegations in Paragraph 141 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent Paragraph 141 purports to characterize Title II of the Americans with Disabilities Act, that Act speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 141 of the First Amended Complaint.
142. The allegations in Paragraph 142 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent Paragraph 142 purports to characterize the Fourth Circuit’s decision in Heiko v. Colombo Savings Bank, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 142 of the First Amended Complaint.
143. The allegations in Paragraph 143 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations regarding the Plaintiffs in Paragraph 143 of the First Amended Complaint; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 143 of the First Amended Complaint.
144. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 144 of the First Amended Complaint; thus, they are deemed denied. To the extent Paragraph 144 of the First Amended Complaint purports to characterize unnamed documents or statements produced by the Centers for Disease Control and Prevention, those documents
28
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or statements speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 144 of the First Amended Complaint.
145. The allegations in Paragraph 145 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations regarding Plaintiff Hutchins in Paragraph 145 of the First Amended Complaint; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 145 of the First Amended Complaint.
146. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 146 of the First Amended Complaint; thus, they are deemed denied. To the extent Paragraph 146 of the First Amended Complaint purports to characterize unnamed documents produced by the Centers for Disease Control and Prevention, those documents speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 146 of the First Amended Complaint.
147. The allegations in Paragraph 147 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations in Paragraph 147 of the First Amended Complaint regarding Plaintiff Hutchins; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 147 of the First Amended Complaint.
148. The allegations in Paragraph 148 of the First Amended Complaint contain
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conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 148 of the First Amended Complaint.
149. Proposed Intervenors reallege and reincorporate the responses to the First
Amended Complaint’s allegations in Paragraphs 1 through 148 of this Answer.
150. The allegations in Paragraph 150 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent Paragraph 150 purports to characterize Section 504 of the Rehabilitation Act, that Act speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 150 of the First Amended Complaint.
151. The allegations in Paragraph 151 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors admit that the State of North Carolina receives federal funding to conduct its elections as stated in Paragraph 151 of the First Amended Complaint. Proposed Intervenors deny any remaining factual allegations in Paragraph 151 of the First Amended Complaint.
152. The allegations in Paragraph 152 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent Paragraph 152 of the First Amended Complaint seeks to characterize the Fourth Circuit’s decision in Heiko v. Colombo Savings Bank, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 152 of the First Amended Complaint.
153. The allegations in Paragraph 153 of the First Amended Complaint contain
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conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to any factual allegations in Paragraph 153 of the First Amended Complaint; thus, they are deemed denied.
154. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 154 of the First Amended Complaint; thus, they are deemed denied.
155. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 155 of the First Amended Complaint regarding Plaintiff Hutchins; thus, they are deemed denied. To the extent Paragraph 155 of the First Amended Complaint references statutes, those statutes speak for themselves and are evidence of their contents. Proposed Intervenors deny any remaining factual allegations in Paragraph 155 of the First Amended Complaint.
156. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 156 of the First Amended Complaint regarding the Plaintiffs; thus, they are deemed denied. To the extent Paragraph 156 of the First Amended Complaint purports to characterize unnamed documents or statements produced by the Centers for Disease Control and Prevention, those documents or statements speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 156 of the First Amended Complaint.
157. The allegations in Paragraph 157 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations in Paragraph 157 of the First Amended Complaint regarding the Plaintiff Hutchins; thus, they are deemed denied. Proposed Intervenors deny any remaining
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factual allegations in Paragraph 157 of the First Amended Complaint.
158. The allegations in Paragraph 158 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 158 of the First Amended Complaint.
159. Proposed Intervenors reallege and reincorporate the responses to the First
Amended Complaint’s allegations in Paragraphs 1 through 158 of this Answer.
160. The allegations in Paragraph 160 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent Paragraph 160 purports to characterize Title II of the Americans with Disabilities Act, that Act speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 160 of the First Amended Complaint.
161. The allegations in Paragraph 161 of the First Amended Complaint contain
conclusions of law which require no answer.
162. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 162 of the First Amended Complaint regarding Plaintiffs; thus, they are deemed denied. To the extent Paragraph 162 of the First Amended Complaint purports to characterize unnamed documents or statements produced by the Centers for Disease Control and Prevention, those documents or statements speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 162 of the First Amended Complaint.
163. The allegations in Paragraph 163 of the First Amended Complaint contain
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conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 163 of the First Amended Complaint.
164. The allegations in Paragraph 164 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 164 of the First Amended Complaint.
165. Proposed Intervenors reallege and reincorporate the responses to the First
Amended Complaint’s allegations in Paragraphs 1 through 164 of this Answer.
166. The allegations in Paragraph 166 of the First Amended Complaint contain
conclusions of law which require no answer. To the extent Paragraph 166 purports to characterize Section 504 of the Rehabilitation Act, that Act speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 166 of the First Amended Complaint.
167. The allegations in Paragraph 167 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors admit that the State of North Carolina receives federal funding to conduct its elections. Proposed Intervenors deny any remaining factual allegations in Paragraph 167 of the First Amended Complaint.
168. Proposed Intervenors lack sufficient information to respond to the allegations
in Paragraph 168 of the First Amended Complaint regarding Plaintiffs; thus, they are deemed denied. To the extent Paragraph 168 of the First Amended Complaint purports to characterize unnamed documents or statements produced by the Centers for Disease Control and Prevention, those documents or statements speak for themselves and are evidence of their contents; to the extent that the characterization in the First Amended Complaint differs from
33
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this evidence, that characterization is denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 168 of the First Amended Complaint.
169. The allegations in Paragraph 169 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 169 of the First Amended Complaint.
170. The allegations in Paragraph 170 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 170 of the First Amended Complaint.
171. Proposed Intervenors reallege and reincorporate the responses to the First
Amended Complaint’s allegations in Paragraphs 1 through 170 of this Answer.
172. Paragraph 172 of the First Amended Complaint contains conclusions of law
that require no answer. To the extent Paragraph 172 of the First Amended Complaint references Section 208 of the Voting Rights Act, that Act speaks for itself and is evidence of its contents. Proposed Intervenors deny any factual allegations in Paragraph 172 of the First Amended Complaint.
173. Paragraph 173 of the First Amended Complaint contains conclusions of law
that require no answer. To the extent Paragraph 173 of the First Amended Complaint references the Voting Rights Act, that Act speaks for itself and is evidence of its contents. To the extent Paragraph 173 of the First Amended Complaint references the Fifth Circuit’s decision in OCA-Greater Houston v. Texas, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 173 of the First Amended Complaint.
34
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174. Paragraph 174 of the First Amended Complaint contains conclusions of law
that require no answer. To the extent Paragraph 174 of the First Amended Complaint references the Voting Rights Act, that Act speaks for itself and is evidence of its contents. To the extent Paragraph 174 of the First Amended Complaint references the Fifth Circuit’s decision in OCA-Greater Houston v. Texas, that decision speaks for itself and is evidence of its contents; to the extent that the characterization in the First Amended Complaint differs from this evidence, that characterization is denied. Proposed Intervenors deny any factual allegations in Paragraph 174 of the First Amended Complaint.
175. The allegations in Paragraph 175 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 175 of the First Amended Complaint.
176. The allegations in Paragraph 176 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 176 of the First Amended Complaint.
177. The allegations in Paragraph 177 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors lack sufficient information to respond to the allegations in Paragraph 177 of the First Amended Complaint regarding Plaintiff Hutchins; thus, they are deemed denied. Proposed Intervenors deny any remaining factual allegations in Paragraph 177 of the First Amended Complaint.
178. The allegations in Paragraph 178 of the First Amended Complaint contain
conclusions of law which require no answer. Proposed Intervenors deny any factual allegations in Paragraph 178 of the First Amended Complaint.
179. The unnumbered paragraph on page 74 of the First Amended Complaint under
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“PRAYER FOR RELIEF” consists of a prayer for relief that does not require a response. To the extent a response is required, Proposed Intervenors deny that Plaintiffs are entitled to, or that this Court has jurisdiction to grant, the relief described.
180. Proposed Intervenors deny each and every allegation not expressly admitted
herein. First Affirmative Defense
Plaintiffs’ First Amended Complaint, in whole or in part, fails to state a claim upon which relief can be granted and should be dismissed.
Second Affirmative Defense Plaintiffs lack standing to assert the claims in their First Amended Complaint.
Third Affirmative Defense Plaintiffs’ claims are not ripe.
WHEREFORE, Proposed Intervenors respectfully request that this Court dismiss Plaintiffs’ claims with prejudice, deny Plaintiffs’ prayer for relief, order Plaintiffs to pay Proposed Intervenors’ costs and attorneys’ fees, and grant other relief deemed just and proper.

Dated: June 10, 2020
/s/ Nicole J. Moss COOPER & KIRK, PLLC Nicole J. Moss (State Bar No. 31958) 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 nmoss@cooperkirk.com Local Civil Rule 83.1 Counsel for Proposed Intervenors

Respectfully submitted,
/s/ David H. Thompson COOPER & KIRK, PLLC David H. Thompson* Peter A. Patterson* Brian W. Barnes* Steven J. Lindsay* 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600
36

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dthompson@cooperkirk.com Counsel for Proposed Intervenors *Notice of Appearance Forthcoming
37 Case 1:20-cv-00457-WO-JLW Document 16-1 Filed 06/10/20 Page 37 of 37

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457 [PROPOSED] ORDER

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,

Proposed Intervenors.

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It is hereby ORDERED that Proposed Intervenors’ Motion to Intervene is GRANTED.

SO ORDERED.

DATED: ______________________

______________________ William L. Osteen, Jr. United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457
PROPOSED INTERVENORS’ BRIEF IN SUPPORT OF THEIR MOTION TO INTERVENE

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,

Proposed Intervenors.

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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .......................................................................................................... ii STATEMENT OF SUBJECT MATTER BEFORE THE COURT.................................................1 QUESTIONS PRESENTED............................................................................................................3 STATEMENT OF FACTS ..............................................................................................................3 ARGUMENT ...................................................................................................................................7
I. Proposed Intervenors are Entitled to Intervene as of Right ...........................................7 A. Proposed Intervenors Motion is Timely ..................................................................8 B. Proposed Intervenors Have a Significantly Protectable Interest in the Subject of This Suit ...................................................................................................................8 C. The Disposition of This Case May Impair Proposed Intervenors’ Significantly Protectable Interest.................................................................................................11 D. The Existing Defendants Will Not Adequately Protect Proposed Intervenors’ Interests. ................................................................................................................11
II. Alternatively, Proposed Intervenors Should be Allowed to Intervene Permissively...17 CONCLUSION ..............................................................................................................................18
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TABLE OF AUTHORITIES

Cases

Page

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ......................................................................................................10, 11

Carcano v. McCrory, 315 F.R.D. 176 (M.D.N.C. 2016) ..............................................................17

Cooper v. Berger, 809 S.E.2d 98 (N.C. 2018) ..............................................................................15

Feller v. Brock, 802 F.2d 722 (4th Cir. 1986) .....................................................................7, 16, 18

Gregory v. Ashcroft, 501 U.S. 452 (1991) .......................................................................................1

Hollingsworth v. Perry, 570 U.S. 693 (2013) ...........................................................................9, 10

Karcher v. May, 484 U.S. 72 (1987) .........................................................................................9, 10

Marshall v. United States, 414 U.S. 417 (1974) .....................................................................10, 11

Newport News Shipbuilding & Drydock Co. v. Peninsula Shipbuilders’ Ass’n, 646 F.2d 117 (4th Cir. 1981) ...................................................................................................16, 17

North Carolina v. North Carolina State Conf. of the NAACP, 137 S. Ct 27 (2016) ...............15, 16

North Carolina v. North Carolina State Conf. of the NAACP, 137 S. Ct 1399 (2017) .................16

North Carolina State Conference of NAACP v. Berger, No. 19-2273 (4th Cir.).............................8

North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) ...................................................................................................15

Spring Const. Co. v. Harris, 614 F.2d 374 (4th Cir. 1980) ............................................................8

Students for Fair Admissions Inc. v. Univ. of North Carolina, 319 F.R.D. 490 (M.D.N.C. 2017) ............................................................................................18

Teague v. Bakker, 931 F.2d 259 (4th Cir. 1991)..............................................................................8

Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) ................................11, 13, 14, 16

United Guaranty Residential Ins. Co. of Iowa v. Philadelphia Sav. Fund Soc., 819 F.2d 473 (4th Cir. 1987) ..................................................................................2, 11, 13, 14

Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019) .....................................9, 10

Constitutions, Statutes, and Rules
U.S. CONST. art. I § 4. ............................................................................................................6, 9, 10
FED. R. CIV. P. 24.............................................................................................3, 7, 8, 11, 16, 17, 18
N.C. GEN. STAT.
§ 1-72.2 ..................................................................................................................................... 9 § 114-2(10).......................................................................................................................... 9, 10 § 120-32.6 ........................................................................................................................2, 9, 12 § 163-19 ...................................................................................................................................15 § 163-22 ...................................................................................................................................12

ii

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§ 163-226.3 ..........................................................................................................................4, 15 § 163-227.6 ..........................................................................................................................4, 15 § 163-230.2 ......................................................................................................................3, 4, 12 § 163-231 ...................................................................................................................................4 Legislative Materials H.B. 1169, 119th Leg., Reg. Sess. (N.C. 2020) ...........................................................................6, 7 Other Authorities CARES Act Request and Clarification to Recommendations to Address Election-Related Issues Affected by COVID-19, Karen Brinson Bell, Ex. 2 to Decl. of Allison J. Riggs in Supp. of Pls. Mot. for a Prelim. Inj., Doc. 12-7 (April 22, 2020) (“Riggs Decl.”)................5, 14 Order, ACLU v. Tata, No. 13-1030, Doc. 43 (4th Cir. Jan. 14, 2014).............................................8 Order, North Carolina State Conference of NAACP v. Cooper, No. 18-1034, Doc. 116 (M.D.N.C. Nov. 27, 2019) .............................................................................................17 Order, North Carolina State Conference of NAACP v. Raymond, No. 20-1092, (4th Cir. Mar. 27, 2020) ...................................................................................................................8 Mem. Op. and Order, North Carolina State Conference of NAACP v. Cooper, No. 18-1034, Doc 56 (M.D.N.C. June 3, 2019) .....................................................................................................8 Mem. Op. and Order, North Carolina State Conference of NAACP v. Cooper, No. 18-1034, Doc. 100 (M.D.N.C. Nov. 7, 2019) ..........................................................................................................8 Press Release, Hon. Roy Cooper, Office of the Governor of North Carolina (May 22, 2017) .....16 Recommendations to Address Election-Related Issues Affected by COVID-19, Karen Brinson Bell, Ex. 1 to Riggs Decl., Doc. 12-7 (Mar. 26, 2020) ................................................5, 14
iii
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STATEMENT OF SUBJECT MATTER BEFORE THE COURT “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Here, the laws of North Carolina could not be clearer in designating Proposed Intervenors as necessary and primary agents of the State in exercising the government authority of defending the laws of the State from attack in cases like this. This Court should honor the sovereign choice of the State of North Carolina and grant Proposed Intervenors’ motion to intervene. Under Article I, § 4 of the United States Constitution, the North Carolina General Assembly is the sole entity in the State authorized to prescribe the times, places, and manner of elections for federal office in the State. The General Assembly’s task is particularly important this year, as the novel coronavirus presents novel questions about how to conduct an election during a global pandemic. And the General Assembly is hard at work seeking to answer those questions, which involve balancing interests in the integrity of elections, access to the polls, and poll worker and voter health. Bipartisan legislation to amend North Carolina election law in light of the COVID-19 pandemic known as H.B. 1169 was introduced in the North Carolina House of Representatives on May 22, passed that body by a 116-3 vote on May 28, and is currently pending in the Senate. Plaintiffs in this action, however, are seeking to cut short this legislative process and wrest away the General Assembly’s constitutional authority over prescribing the manner of elections in the State. On May 22, 2020—the same day H.B. 1169 was introduced—Plaintiffs filed this lawsuit, which challenges a panoply of North Carolina election laws alleged to be unconstitutional or otherwise unlawful in application during the COVID-19 pandemic. And on June 5, Plaintiffs filed a motion for a preliminary injunction seeking judicial sanction for their wish-list of reforms.
1
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Defendants have their own views on the administration of elections during these unusual times. Defendant Karen Brinson Bell, the Executive Director of Defendant State Board of Elections, has twice sent letters to legislative leaders including Proposed Intervenors, President Pro Tempore Berger and Speaker Moore, requesting numerous statutory changes to address the impact of the COVID-19 pandemic on elections. Many of these changes are also sought by Plaintiffs in this action. Attorney General Josh Stein, whose office represents Defendants in this case, likewise has written to Proposed Intervenors and other legislators seeking changes similar to those sought by Plaintiffs.
This confluence of interests between Plaintiffs and Defendants—and the absence of any party in the case representing the constitutional authority of the General Assembly to set the ground rules for conducting elections—undermines the adequacy of the current parties for the effective conduct of this litigation. Fortunately, federal and state law work together to provide a solution to this problem. Federal Rule of Civil Procedure 24 grants a right to intervene in federal litigation to those whose substantial interests in the case are inadequately represented by the existing parties. Fourth Circuit case law makes clear that potential divergences of interest much less acute than that present in this case satisfy Rule 24’s liberal standards. See United Guaranty Residential Ins. Co. of Iowa v. Philadelphia Sav. Fund Soc., 819 F.2d 473 (4th Cir. 1987). And North Carolina law designates Proposed Intervenors as necessary agents of the State in litigation challenging the validity of State law and grants them final decision-making authority over the defense of that litigation. See, e.g., N.C. GEN. STAT. § 120-32.6.
Under these provisions of federal and state law, Proposed Intervenors are entitled to intervene in this case. Proposed Intervenors therefore move to intervene as defendants, and they
2
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request that this Court act on their request promptly so that they can participate fully in the response to Plaintiffs’ request for a preliminary injunction.
QUESTION PRESENTED Whether Proposed Intervenors should be granted leave to intervene in this case either as of right under Fed. R. Civ. P. 24(a) or permissively under Rule 24(b).
STATEMENT OF FACTS Under a variety of legal theories, Plaintiffs assail a wide-ranging array of provisions of North Carolina election law which, they say, “in the context of the [COVID-19] pandemic, taken individually or in combination,” violate federal law. Doc. 8, First Amend. Compl. at 75 (June 5, 2020). These provisions include: • The requirement that requests for absentee ballots may not be “completed, partially or in whole, or signed by anyone other than the voter, or the voter’s near relative or verifiable legal guardian.” N.C. GEN. STAT. § 163-230.2(e). Members of multi-partisan teams (“MATs”) trained and authorized by county boards of elections may also assist, id., and a person in need of assistance “due to blindness, disability, or inability to read or write” may request the assistance of the person of his or her choice if “there is not a near relative or legal guardian available.” Id. at § 163-230.2(e1). • The requirement that absentee ballot requests be physically returned to county board of elections offices, and that the delivery must be made by the voter, the voter’s near relative or legal guardian, a MAT member, the postal service, or a designated delivery service. See N.C. GEN. STAT. § 163-230.2(e)(4).
3
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• The requirement that voters requesting an absentee ballot identify themselves with a North Carolina driver’s license number, special identification card number, or the last four digits of their Social Security number. See N.C. GEN. STAT. § 163-230.2(a)(4), (f).
• The requirement that only a near relative, verifiable legal guardian, or MAT member may assist a voter with marking an absentee ballot. Id. at § 163-226.3(a)(4).
• The requirement that absentee ballots must be marked and sealed “[i]n the presence of two persons who are at least 18 years of age,” or a notary public. Id. at § 163-231(a).
• The requirement that absentee ballots must be mailed at the voter’s expense or delivered in person, by the voter or the voter’s near relative or verifiable legal guardian. Id. at § 163231(b)(1).
• The requirement that every precinct must be staffed by precinct assistants, a majority of whom must reside in the precinct itself. Id. at § 163-42(b).
• The “uniform hours” requirement for one-stop early voting sites within a county. Id. at § 163-227.6(c).
• The requirement that county boards of elections must provide public notice of alteration or consolidation of precincts at least 45 days before an election.
• The lack of a requirement that personal protective equipment be provided for use by poll workers or voters during in-person voting. Plaintiffs have asserted their claims against the executive branch officials and agencies
charged with administering the State’s elections, and Defendants are represented in this litigation by members of the office of Attorney General Josh Stein. These officials also have been seeking changes to North Carolina election law similar to those sought by Plaintiffs. Defendant Brinson Bell, Executive Director of Defendant State Board of Elections, has written to lawmakers,
4
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including Proposed Intervenors, on two separate occasions. See CARES Act Request and Clarification to Recommendations to Address Election-Related Issues Affected by COVID-19, Karen Brinson Bell, Ex. 2 to Decl. of Allison J. Riggs in Supp. of Pls. Mot. for a Prelim. Inj., Doc. 12-7 (April 22, 2020) (“Riggs Decl.”); Recommendations to Address Election-Related Issues Affected by COVID-19, Karen Brinson Bell, Ex. 1 to Riggs Decl., Doc. 12-7 (Mar. 26, 2020). Writing on behalf of the State Board of Elections, Executive Director Bell called for laws that would, among other things:
• Expand options for absentee requests (i.e. allow requests by fax and email); • Establish an online portal for absentee requests; • Establish a fund to pay for postage for outbound and returned absentee ballots; • Allow voters to use alternative personal identification in an absentee ballot requests, if
unable to provide their driver’s license number or last four digits of their Social Security number; • Reduce or eliminate the witness requirement for absentee ballots; • Temporarily modify restrictions on absentee-ballot assistance in care facilities; • Eliminate the requirement that a majority of pollworkers reside in the precinct; and • Modify one-stop site and hour requirements. All of these proposals mirror claims for relief in this case. Attorney General Stein also has proposed many of the same changes to lawmakers. See Letter from Attorney General Josh Stein, to Hon. Phil Berger et al. (May 29, 2020), Ex. A. His requests included: • Relaxing identification requirements for absentee ballot requests;
5
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• Allowing county boards to prefill ballot request forms, contrary to the current restriction of assistance to relatives, guardians, and MAT members;
• Providing prepaid postage on returned absentee ballots; and • Repealing the uniform-hour requirements for one-stop voting sites.
While Plaintiffs, Defendants, and Attorney General Stein have expressed their own views, the General Assembly, the entity charged by the Constitution with prescribing the times, places and manners of elections, U.S. CONST. art. I, § 4, has been hard at work on legislation to address how North Carolina election law should be altered to address the COVID-19 pandemic. On May 22—the same day Plaintiffs’ filed this lawsuit—H.B. 1169, “The Bipartisan Elections Act of 2020,” was introduced in the House. The Bill is sponsored by two Democratic and two Republican legislators, and on May 28 it passed the House by a vote of 116–3. See H.B. 1169, 119th Leg., Reg. Sess. (N.C. 2020), available at https://bit.ly/2YckPfO. It has cleared three Senate committees and is calendared for a full vote on June 10, 2020. In its current form it would amend state law in numerous ways for the 2020 elections, including by, among other things:
• Allowing absentee ballot requests to be sent to a voter by mail, email, or fax, and posted in blank form online, H.B. 1169 Edition D at § 5(a), https://bit.ly/2YckPfO;
• Allowing absentee ballot requests to be submitted by email or fax, id. at § 2(a); • Authorizing a new procedure of online request of absentee ballots, id. at § 7(a); • Requiring only one witness for absentee voting, id. at § 1(a); • Requiring the Department of Health and Human Services and the State Board of Elections
to develop guidance for safe assistance of voters in care facilities by MATs, id. at § 2(b); • Requiring only one assistant at each precinct to reside in the precinct and allowing precincts
to employ assistants who reside elsewhere in the county, id. at § 1(b); and
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• Appropriating over $26 million to the State Board of Elections “to prevent, prepare for, and respond to the coronavirus pandemic during the 2020 federal election cycle,” to be used for a variety of measures, including investing substantial sums for maintaining and expanding clean and accessible one-stop early voting sites and election day voting, id. at §§ 11.1-11.3. The Bill, of course, has not yet been enacted, and if and when it is it may have undergone
amendment from its current form. But its existence demonstrates that the General Assembly is working in a bipartisan manner to address voting and the COVID-19 pandemic. Proposed Intervenors seek to intervene to defend North Carolina law and protect the constitutional prerogatives of the General Assembly.
ARGUMENT I. Proposed Intervenors are Entitled to Intervene as of Right.
Under Rule 24(a), a court “must permit anyone to intervene who” (1) makes a timely motion to intervene, (2) has an “interest relating to the property or transaction that is the subject of the action,” (3) is “so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest,” and (4) shows that he is not “adequately represent[ed]” by “existing parties.” FED. R. CIV. P. 24(a). Proposed Intervenors meet these requirements, particularly given the Fourth Circuit’s “liberal” approach to intervention. Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986). Indeed, the Fourth Circuit has authorized Proposed Intervenors to intervene in cases challenging North Carolina law, and this Court should do the
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same. See Order, North Carolina State Conference of NAACP v. Raymond, No. 20-1092, Doc. 43 (March 27, 2020); Order, ACLU v. Tata, No. 13-1030, Doc. 43 (4th Cir. Jan. 14, 2014).1
A. Proposed Intervenors’ Motion is Timely.
Proposed Intervenors have timely filed this motion. Plaintiffs filed the complaint on May
22, less than three weeks ago, see Doc. 1, Compl., and they amended it on June 5, less than a week
ago. Plaintiffs’ request for a preliminary injunction is only days old, as it also was filed on June 5.
See Doc. 9, Mot. for Prelim. Inj.. Nothing else of substance has happened in the case. For the
timeliness requirement of Rule 24, “[t]he most important consideration is whether the delay has
prejudiced the other parties.” Spring Const. Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980).
Proposed Intervenors have not delayed in presenting themselves to protect their interests at stake
in this suit, and their intervention would not in any way impede the progress of the suit.
B. Proposed Intervenors Have a Significantly Protectable Interest in the Subject of the Suit.
Rule 24(a)(2)’s requirement of an “interest” in the “subject of the action” refers to
“significantly protectable interest.” Teague v. Bakker, 931 F.2d 259, 261 (4th Cir. 1991) (quoting
Donaldson v. United States, 400 U.S. 517, 531 (1971)). Proposed Intervenors have two
independent significantly protectable interests that entitle them to intervene: (1) the interest of the
State in defending the constitutionality of the challenged laws; and (2) the interest of the General
Assembly in defending its legislative enactments and authority, including its authority under
1 Judge Biggs denied intervention to Proposed Intervenors in district court the North Carolina State Conference of NAACP case, see Mem. Op. and Order, North Carolina State Conference of NAACP v. Cooper, No. 18-1034, Doc. 56 (June 3, 2019); Mem. Op. and Order, North Carolina State Conference of NAACP v. Cooper, No. 18-1034, Doc. 100 (Nov. 7, 2019), but this denial is on appeal before the same panel that granted Proposed Intervenors’ motion to intervene in the appeal of Judge Biggs’ order granting a preliminary injunction. See North Carolina State Conference of NAACP v. Berger, No. 19-2273 (4th Cir.). For the reasons in their briefing in the NAACP case, Proposed Intervenors submit that Judge Biggs erred to the extent her reasoning and conclusions were inconsistent with those presented by Proposed Intervenors here.
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Article I, §4 of the Constitution to “prescribe[ ]” the “Manner of holding Elections for Senators and Representatives.” See U.S. CONST. art. I, §4, Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (treating interests of state and legislature as two separate interests).
1. The State of North Carolina has an interest in “defend[ing] the constitutionality of its statute[s].” Bethune-Hill, 139 S. Ct. at 1951. And since the “State of North Carolina” only can act through its authorized agents, the “State must be able to designate agents to represent it in federal court.” Id. Further, it is within the State’s sovereign prerogative to authorize members of the General Assembly to serve as those agents and therefore “to litigate on the State’s behalf.” Id.; see also Karcher v. May, 484 U.S. 72, 81 (1987); Hollingsworth v. Perry, 570 U.S. 693, 709–10 (2013).
Consistent with this authority, North Carolina law expressly, repeatedly, and emphatically designates Proposed Intervenors as agents of the State to defend the State’s laws from attack in federal court in cases like this one. See N.C. GEN. STAT. § 120-32.6; N.C. GEN. STAT. § 1-72.2(b); N.C. GEN. STAT. § 114-2(10). Indeed, State law goes much further than merely designating Proposed Intervenors as its agents in this type of litigation by making clear that Proposed Intervenors are the State’s necessary and primary agents for defense of its laws. “Whenever the validity or constitutionality of an act of the General Assembly . . . is the subject of an action in any State or federal court,” North Carolina law provides, “the Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State through the General Assembly, shall be necessary parties.” N.C. GEN. STAT. § 120-32.6 (emphases added). And in “such cases, the General Assembly through the Speaker of the House of Representatives and President Pro Tempore of the Senate jointly shall possess final decision-making authority with respect to the defense of the challenged act of the General Assembly.” N.C. GEN. STAT. § 120-32.6 (emphasis
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added). The Attorney General is expressly directed to “abide by and defer to [this] final decisionmaking authority.” N.C. GEN. STAT. § 114-2(10).
In sum, North Carolina has an “interest in the continued enforceability of” the numerous laws challenged here and the State may vindicate that interest through any officials it so designates. Hollingsworth, 570 U.S. at 709–10; see Karcher, 484 U.S. at 82. North Carolina has so designated Proposed Intervenors, which means that one of the interests at stake for the purposes of intervention are the interests of the State in defending its democratically enacted laws.
2. Proposed Intervenors have an additional significantly protectable interest entitling them to defend the laws challenged here: the interest of the General Assembly itself in defending its enactments and its legislative authority. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2665 (2015); cf. Bethune-Hill, 139 S. Ct. at 1953–54. Proposed Intervenors represent both houses of the General Assembly in ensuring that their enactments are not “nullified.” Ariz. Indep. Redistricting Comm’n, 135 S. Ct. at 2665 (quotation marks omitted). And the laws Plaintiffs seek to nullify are not just any run-of-the-mill laws; rather, they are laws that govern the times, places, and manner of holding elections for Senators and Representatives, among other offices. The power to “prescribe” such matters is vested by the Constitution “in each State by the Legislature thereof.” U.S. CONST. art. I, § 4. Plaintiffs are seeking to usurp this authority for themselves by asking the Court to impose upon the State Plaintiffs’ preferred elections procedures “with respect to any election in the state during the COVID-19 pandemic.” Am. Compl. at 76. Proposed Intervenors have a substantial interest in defending the General Assembly’s authority from this frontal assault.
In the present public health emergency, the General Assembly’s interest in its authority to legislate is only heightened. When a legislature “undertakes to act in areas fraught with medical
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and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices.” Marshall v. United States, 414 U.S. 417, 427 (1974). The General Assembly must be able to pass appropriate statutes to safeguard both the integrity of North Carolina’s elections and the health of North Carolina’s citizens. These are matters of grave importance to the State and its people, and the General Assembly has a substantial interest in defending its authority to address them.
C. The Disposition of this Case May Impair Proposed Intervenors’ Significantly Protectable Interest.
The threat posed by this case to Proposed Intervenors’ significant interests is stark and easily satisfies the Rule 24 requirement that Proposed Intervenors’ ability to protect its interests may be impaired “as a practical matter.” FED. R. CIV. P. 24(a)(2). Here, if the Court rules in Plaintiffs’ favor, the State’s and the General Assembly’s interests in enforcing the duly enacted laws of the State will have been undermined and “completely nullified” with respect to the host of provisions that Plaintiffs seek to enjoin. See Ariz. Indep. Redistricting Comm’n, 135 S. Ct. at 2665 (quotation marks omitted). And the General Assembly’s constitutionally granted authority to prescribe elections regulations will have been eviscerated during this critical time.
D. The Existing Defendants Will Not Adequately Protect Proposed Intervenors’ Interests.
“The requirement of [inadequate representation] is satisfied if the applicant shows that representation of his interest may be inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (emphasis added; quotation marks omitted). This standard is satisfied, for example, when interests overlap but are not identical. See United Guaranty Residential Ins. Co. of Iowa v. Philadelphia Sav. Fund Soc., 819 F.2d 473, 476 (4th Cir. 1987). Proposed Intervenors clear this low hurdle.
11
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1. As an initial matter, this Court should hold that the executive branch officers and agencies named as defendants are inadequate representatives of the State’s and General Assembly’s interests as a matter of law. This conclusion flows directly from North Carolina law designating Proposed Intervenors as necessary and primary agents in defending the validity of the State’s statutes. As explained above, North Carolina law provides that Proposed Intervenors are “necessary parties” in challenges to State statutes, and it grants them “final decision-making authority” in the litigation. N.C. GEN. STAT. § 120-32.6. In light of those provisions, it is not possible to hold that the State’s and General Assembly’s interests are being adequately represented if their necessary and primary defenders are not allowed to participate as parties in the case.
2. Even apart from these provisions of North Carolina law, Defendants are not adequate representatives of Proposed Intervenors’ interests because both Defendants and Proposed Intervenors have unique interests. Defendants, on the one hand, are executive branch officers and agencies with an interest in the administration of state elections. In other litigation, this has prompted the State Board of Elections, a named defendant here, to explain that “a primary objective for the State Board is to expediently obtain clear guidance on what law, if any, will need to be enforced.” State Defs.’ Resp. to Pls.’ Mot. for Prelim. Inj. at 13, Holmes v. Moore, 18-cvs15292 (N.C. Super. Ct. Wake Cty., June 19, 2019), Ex. B. It stands to reason that the State Board and its officials will have a similar objective here, as it is the agency charged with administering the State’s elections in accordance with law. See N.C. GEN. STAT. § 163-22.
Proposed Intervenors also have a unique interest not shared by Defendants—to defend the General Assembly’s constitutional prerogative in prescribing the times, places, and manner of elections. This is an interest held exclusively by the General Assembly, not by the various executive branch officers and agencies that are named defendants in this action.
12
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These diverging interests satisfy the “inadequacy of representation” requirement for intervention under binding Supreme Court and Fourth Circuit precedent. In Trbovich, the Secretary of Labor instituted an action to set aside an election of officers of the United Mine Workers of America. The union member whose complaint led the Secretary to sue sought to intervene in the action. The district court denied his motion to intervene and the court of appeals affirmed, but the Supreme Court reversed. The Court reasoned that, while the Secretary of Labor was charged with representing the union member’s interest in the litigation, it also was charged with protecting the “vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.” Trbovich, 404 U.S. at 539. Because of the presence of this additional interest and its potential to affect the Secretary’s approach to the litigation it was “clear” to the Court “that in this case there is sufficient doubt about the adequacy of representation to warrant intervention.” Id. at 538.
The Fourth Circuit’s decision in United Guaranty follows and is of a piece with Trbovich. That case involved a suit seeking to nullify mortgage insurance policies held by various purchasers of mortgage loans originated by a mortgage company that allegedly lied in its applications for mortgage insurance. The trustee for the holder of the mortgage certificates representing the interest of the purchasers of the loans, The First National Bank of Maryland, was a party, but the largest purchaser, Philadelphia Savings Fund Society, sought to intervene to defend its own interests. The district court denied intervention based on adequacy of representation, but the Fourth Circuit reversed. The Bank, the Fourth Circuit reasoned, “ha[d] a broader interest in protecting all of the certificate holders than [did] Philadelphia’s narrow interest in protecting its own mortgage certificates.” United Guaranty, 819 F.2d at 476. Although Philadelphia’s interests were a subset of the Bank’s, the Bank’s “multiple interests [had] the potential of dictating a different approach
13
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to the conduct of the litigation.” Id. at 475. The court therefore held that the Bank was not an adequate representative of Philadelphia’s interests, and that Philadelphia was entitled to intervene.
The case for inadequate representation is even stronger here than in Trbovich and United Guaranty, for as just explained Proposed Intervenors have an interest in the General Assembly’s prerogatives that is not represented by Defendants at all, which was not the case in Trbovich and United Guaranty. If the Secretary’s representation was inadequate in Trbovich, and the Bank’s in United Guaranty, it follows a fortiori that Defendants’ representation is inadequate here.
3. For the foregoing reasons, Proposed Intervenors have shown inadequate representation even if there were absolutely zero reason to question the resoluteness with which Defendants would defend the laws being challenged in this case. But as it happens there is reason to question. Both Defendant Bell, the Executive Director of the State Board of Elections, and Attorney General Stein, head of the office representing Defendants, have both recently lobbied the General Assembly to change North Carolina law along some of the same lines as the relief Plaintiffs request in this suit.
In her letters, addressed to Proposed Intervenors among others, Executive Director Bell sought many of the same changes to North Carolina law as Plaintiffs seek here. She advocated repeal of absentee ballot request regulations to allow requests by mail; action to “[r]educe or eliminate the witness requirement for absentee ballots”; repeal of restrictions on assistance with requesting, completing, and returning absentee ballots; elimination of the “requirement that a majority of pollworkers reside in the precinct”; establishment of an online portal for absentee ballot requests; and modification of one-stop voting hours. See CARES Act Request and Clarification to Recommendations to Address Election-Related Issues Affected by COVID-19, Karen Brinson Bell, Ex. 2 to Riggs Decl., Doc. 12-7 (April 22, 2020); Recommendations to Address Election-Related
14
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Issues Affected by COVID-19, Karen Brinson Bell, Ex. 1 to Riggs Decl., Doc. 12-7 (Mar. 26, 2020). Plaintiffs have asked the Court to rewrite North Carolina’s laws in the same way.
Attorney General Stein has also taken the highly unusual step of lobbying the legislature for his preferred election policy reforms. Less than two weeks ago, and subsequent to the filing of the initial Complaint in this litigation, Attorney General Stein wrote a letter to legislative officials, including Proposed Intervenors, seeking changes to the State’s elections laws similar to those sought by Plaintiffs here. See Letter from Attorney General Josh Stein, to Hon. Phil Berger et al. (May 29, 2020), Ex. A. Attorney General Stein proposed (among other things) relaxing restrictions on who can assist voters with completing mail-in absentee ballot request forms and abolishing the requirement that one-stop voting sites all maintain the same generous hours of operation. Id. These two features of North Carolina law, codified at N.C. GEN. STAT. § 163-226.3(a)(4) and § 163227.6(c), respectively, are both challenged by Plaintiffs here. See Am. Compl. at 77.
Executive Director Bell’s and Attorney General Stein’s policy positions call into question the adequacy of their representation of the State’s and General Assembly’s interests in this case. To make matters worse, Attorney General Stein and Governor Cooper (who appoints the members of and controls the State Board of Elections, see Cooper v. Berger, 809 S.E.2d 98 (N.C. 2018); N.C. GEN. STAT. § 163-19) have a demonstrated history of inadequately defending laws that they oppose as a policy matter. In North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016), the Fourth Circuit struck down a statute that prescribed voter ID requirements and made other changes to North Carolina election laws. The State filed a cert petition and sought a stay from the Supreme Court before Governor Cooper and Attorney General Stein took office. Four Justices—the same number as required to grant cert—indicated that they would have granted a stay of the Fourth Circuit’s mandate in whole or in part. See North Carolina
15
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v. North Carolina State Conf. of NAACP, 137 S. Ct. 27 (2016). Yet after taking office Governor Cooper and Attorney General Stein actively sought to thwart the State’s cert petition, with Attorney General Stein moving to dismiss the petition on the Governor’s behalf. See North Carolina v. North Carolina State Conference of NAACP, 137 S. Ct. 1399, 1399 (2017); Press Release, Attorney General Josh Stein, AG Stein Moves to Dismiss Case on Voting Law (Feb. 21, 2017), Ex. C. Proposed Intervenors sought to intervene to save the petition, but the effort ultimately was for naught. In a statement respecting the denial of the petition, Chief Justice Roberts cited “the blizzard of filings” precipitated by the Governor’s motion, and admonished that “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” Id. at 1400 (quotation marks omitted). Governor Cooper meanwhile issued a press release celebrating the cert denial that put the final nail in the coffin of the North Carolina law he was charged with faithfully executing. See Governor Roy Cooper, Gov. Cooper Issues Statement on SCOTUS Voter Access (May 15, 2017), Ex. D.
All of this is not to say that there will be a repeat in this case. But given Executive Director Bell’s and Attorney General Stein’s letters, there certainly is a risk, and Rule 24 requires a showing only that the defendant’s representation “may be inadequate, and the burden of making that showing should be treated as minimal.” Trbovich, 404 U.S. at 538 n.10 (emphasis added). For the foregoing reasons, Proposed Intervenors easily clear this low bar here.
4. One final point bears emphasis, and that is that participating in this case as an amicus rather than as a party will not provide adequate protection for Proposed Intervenors’ interests, because only as a party will Proposed Intervenors be guaranteed the right to participate fully in the development of a record in this case and, if necessary, file a notice of appeal. See, e.g., Feller v. Brock, 802 F.3d 722, 730 (4th Cir. 1986); Newport News Shipbuilding & Drydock Co. v. Peninsula
16
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Shipbuilders’ Ass’n, 646 F.2d 117, 121–22 (4th Cir. 1981). The inadequacy of amicus status was brought into sharp focus in the North Carolina Conference of NAACP voter ID litigation. In that case, Judge Biggs denied Proposed Intervenors’ motion to intervene and ordered that the expert reports they had proffered in opposition to the plaintiffs’ preliminary injunction motion be stricken from the record. See Order, North Carolina State Conference of NAACP v. Cooper, No. 18-1034, Doc. 116 (Nov. 27, 2019). Because the defendants in that action—the members of the State Board of Elections, represented by the North Carolina Attorney General’s office—did not themselves offer any expert reports in opposition to the preliminary injunction motion, that motion was decided on the basis of a record that included zero expert reports rebutting plaintiffs’ many experts.
These events—along with the events surrounding the cert petition in the McCrory litigation—demonstrate why Proposed Intervenors must be able to intervene as a party and must be allowed to do so expeditiously. It is only as a party that Proposed Intervenors will be guaranteed the right to build a record and, if necessary, file a notice of appeal or a cert petition in this case. Proposed Intervenors therefore ask that their motion to intervene be granted on an expedited basis to allow them to participate with full party rights in opposing Plaintiffs’ preliminary injunction motion. II. Alternatively, Proposed Intervenors Should Be Allowed to Intervene Permissively.
This Court has previously permitted Proposed Intervenors to intervene under Rule 24(b) to defend North Carolina law. See Carcaño v. McCrory, 315 F.R.D. 176, 177 (M.D.N.C. 2016). Under Rule 24(b), the Court “may permit anyone to intervene who” files a timely motion and who “has a claim or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1)(B). The Court also “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Id. at 24(b)(3).
17
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These requirements are satisfied here. Timeliness is measured by the same three criteria used for intervention as of right: “how far the suit has progressed,” “the prejudice that delay might cause other parties,” and the reason for the delay (if any) in the motion. Students for Fair Admissions Inc. v. Univ. of North Carolina, 319 F.R.D. 490, 494 (M.D.N.C. 2017). The purpose of this requirement is merely “to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal.” Id. (quoting Scardelleti v. Debarr, 265 F.3d 195, 202 (4th Cir. 2001)). As explained above, Proposed Intervenors have acted expeditiously, and their intervention threatens no prejudice to the parties.
Moreover, as shown in the Proposed Answer, Proposed Intervenors’ defenses share with the “main action” questions of both law and fact. FED. R. CIV. P. 24(b)(2)(B). Plaintiffs claim that North Carolina voting laws violate federal constitutional and statutory requirements in light of the COVID-19 pandemic, and Proposed Intervenors deny those claims. These arguments present completely overlapping questions of fact and law, and Proposed Intervenors do not seek to inject any new claims into the case.
Proposed Intervenors therefore satisfy all requirements for permissive intervention, and the Court should grant their request to intervene. See Feller, 802 F.2d at 729 (“[L]iberal intervention is desirable to dispose of as much of a controversy involving as many apparently concerned persons as is compatible with efficiency and due process.” (quotation marks omitted)).
CONCLUSION This Court should expeditiously permit Proposed Intervenors to intervene as defendants.

Dated: June 10, 2020
/s/ Nicole J. Moss COOPER & KIRK, PLLC Nicole J. Moss (State Bar No. 31958)

Respectfully submitted,
COOPER & KIRK, PLLC David H. Thompson* Peter A. Patterson*
18

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1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 nmoss@cooperkirk.com Local Civil Rule 83.1 Counsel for Proposed Intervenors

Brian W. Barnes* Steven J. Lindsay* 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 dthompson@cooperkirk.com
Counsel for Proposed Intervenors *Notice of Appearance Forthcoming

19 Case 1:20-cv-00457-WO-JLW Document 17 Filed 06/10/20 Page 23 of 25

CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1), the undersigned counsel hereby certifies that the foregoing Memorandum, including body, headings, and footnotes, contains 5,629 words as measured by Microsoft Word.
/s/Nicole J. Moss Nicole J. Moss
Case 1:20-cv-00457-WO-JLW Document 17 Filed 06/10/20 Page 24 of 25

CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that, on June 10, 2020, I electronically filed the foregoing Notice of Appearance with the Clerk of the Court using the CM/ECF system.
/s/ Nicole J. Moss Nicole J. Moss
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457
DECLARATION IN SUPPORT OF PROPOSED INTERVENORS’ MOTION TO INTERVENE

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,

Proposed Intervenors.

Case 1:20-cv-00457-WO-JLW Document 17-1 Filed 06/10/20 Page 1 of 2

DECLARATION OF NICOLE J. MOSS IN SUPPORT OF THE AUTHENTICITY OF THE EXHIBITS ATTACHED TO
PROPOSED INTERVENORS’ MOTION TO INTERVENE

Nicole J. Moss hereby declares as follows under penalty of perjury:

1. I am an attorney at the law firm of Cooper & Kirk, PLLC, counsel for

Proposed Intervenors. I submit this Declaration in support of the authenticity of the exhibits

attached to Proposed Intervenors’ motion to intervene.

2. Proposed Intervenors’ memorandum in support references 4 exhibits.

3. Exhibit A is a true and accurate copy of a May 29, 2020 letter from Attorney

General Josh Stein to Hon. Phil Berger et al.

4. Exhibit B is a true and accurate copy of the State Defendants’ Response to

Plaintiffs’ Motion for Preliminary Injunction, in Holmes v. Moore, 18-cvs-15292 (N.C.

Super. Ct. Wake Cty., June 19, 2019).

5. Exhibit C is a true and accurate copy of Attorney General Stein’s Press

Release from February 21, 2017.

6. Exhibit D is a true and accurate copy of Governor Roy Cooper’s Press

Release from May 15, 2017.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on June 10, 2020

s/Nicole J. Moss Nicole J. Moss

Attorney for Proposed Intervenors

1
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EXHIBIT A
Case 1:20-cv-00457-WO-JLW Document 17-2 Filed 06/10/20 Page 1 of 4

JOSH STEIN ATTORNEY GENERAL

May 29, 2020

The Honorable Phil Berger Senate President Pro Tempore 16 West Jones Street, Rm. 2007 Raleigh, NC 27601

The Honorable Dan Blue Senate Democratic Leader 16 West Jones Street, Rm. 1129 Raleigh, NC 27601

The Honorable Tim Moore House Speaker 16 West Jones Street, Rm. 2304 Raleigh, NC 27601

The Honorable Darren G. Jackson House Democratic Leader 300 N. Salisbury Street, Rm. 506 Raleigh, NC 27603

Dear President Pro Tempore Berger, Senator Blue, Speaker Moore, and Representative Jackson:

I write regarding the North Carolina General Assembly’s efforts to address the effects of the COVID-19 virus on our elections this year. I am pleased to know that members of the General Assembly are working together on a bipartisan basis to address this global health crisis. I have reviewed House Bill 1169, entitled 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 (HB 1169), which passed in the House of Representatives yesterday. Many of the provisions in HB 1169 are a step in the right direction towards ensuring that every eligible North Carolinian has the opportunity to exercise the right to vote in November. However, there are a number of outstanding areas that would benefit from the General Assembly’s attention. Addressing these considerations, in particular the use of prepaid postage for absentee ballot envelopes, would serve to further the safe exercise of the franchise for the approximately 7 million registered voters in North Carolina.

 Proof-of-residence for Absentee Ballots: Currently, when requesting an absentee ballot, a voter must provide either their driver’s license number or last four digits of

WWW.NCDOJ.GOV

114 W. EDENTON STREET, RALEIGH, NC 27603 P. O. BOX 629, RALEIGH, NC 27601

919.716.6400

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their Social Security number.1 Many voters—and, particularly, senior citizens— may not have access to a driver’s license number or may be unable to easily locate their Social Security number. These voters are often the same voters for whom it is infeasible or unsafe to vote in-person. Allowing voters to use a copy of a current utility bill, bank statement, government check, paycheck, or other government document showing the name and address of the voter would help ensure that these voters, who may be most at-risk for contracting the COVID-19 virus, are able to safely exercise their right to vote.
 County Assistance With Filling Out Absentee Ballot Requests: HB 1169 would allow voters to request absentee ballots electronically. However, voters would not be able to request the assistance of anyone other than a near relative or guardian or a member of a multipartisan elections team to fill out these request forms. Allowing county boards of elections to pre-fill the request forms with the voters’ name and address would reduce the need for those who require in-person assistance— particularly those who are at high risk—to subject themselves and others to the risk of contracting or spreading the COVID-19 virus.
 Pollworker Pay: HB 1169 allows money from the federal CARES Act funding to be used by county boards of elections to increase pay for official pollworkers, who are employed on a temporary basis during election season. While this is a step in the right direction, pollworkers should have the assurance that any unemployment benefits they may be receiving would not be affected by service as an official pollworker.
 Prepaid Postage for Absentee Ballots: The part of HB 1169 that allows for voters to request absentee ballots by email and fax would help increase access to absentee ballots by voters for whom it may be infeasible or unsafe to vote inperson. But any voter who requests an absentee ballot, even electronically, must still acquire postage to be able to return the ballot to the appropriate county board of elections if it is unsafe or infeasible for them to personally deliver it to the appropriate county board. Sometimes obtaining proper postage is difficult, especially for those with limited mobility and those at higher risk from COVID-19. Given the restrictions in movement and social-distancing requirements that may be in place in November, providing prepaid postage on returned absentee ballots would eliminate the need for a voter to leave their residence to acquire postage and would decrease the need for the voter to turn over their ballot to another individual for delivery to the appropriate county board. Prepaid postage for absentee ballots would also help facilitate North Carolinians living in assisted-living facilities to return their ballots safely.
 One-Stop Requirements: Currently, if any one-stop site in a county is open, all one-stop sites in that county must be open from 8:00 am to 7:30 pm. Providing county boards of elections flexibility to set different hours for one-stop sites would allow them to appropriately respond to the public-health considerations and social-

1 N.C. Gen. Stat. § 163-230.2.

WWW.NCDOJ.GOV

114 W. EDENTON STREET, RALEIGH, NC 27603 P. O. BOX 629, RALEIGH, NC 27601

919.716.6400

Case 1:20-cv-00457-WO-JLW Document 17-2 Filed 06/10/20 Page 3 of 4

distancing requirements to prevent the contraction and spread of the COVID-19 virus that may exist in November. I am pleased that the General Assembly is endeavoring to address the global pandemic and its effect on the 2020 elections. I hope to be able to work together with you to ensure that all eligible North Carolinians are able to vote safely in November.
Regards,
Josh Stein

WWW.NCDOJ.GOV

114 W. EDENTON STREET, RALEIGH, NC 27603 P. O. BOX 629, RALEIGH, NC 27601

919.716.6400

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EXHIBIT B
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STATE OF NORTH CAROLINA WAKE COUNTY

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 18 CVS 15292

JABARI HOLMES, FRED CULP, DANIEL )

E. SMITH, BRENDON JADEN PEAY, )

SHAKOYA CARRIE BROWN, and PAUL )

KEARNEY, SR.,

)

)

Plaintiffs,

)

v.

)

)

TIMOTHY K. MOORE in his official capacity )

as Speaker of the North Carolina House of )

Representatives; PHILLIP E. BERGER in his )

official capacity as President Pro Tempore of )

the North Carolina Senate; DAVID R. LEWIS, )

in his official capacity as Chairman of the )

House Select Committee on Elections for the )

2018 Third Extra Session; RALPH E. HISE, in )

his official capacity as Chairman of the Senate )

Select Committee on Election for the 2018 )

Third Extra Session; THE STATE OF NORTH )

CAROLINA; and THE NORTH CAROLINA )

STATE BOARD OF ELECTIONS,

)

)

Defendants.

)

_____________________________________

STATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY
INJUNCTION
(Three-Judge Court Pursuant to N.C. Gen. Stat. § 1-267.1)

NOW COME Defendants the State of North Carolina and the North Carolina State Board

of Elections (collectively, “State Defendants”), and hereby respond to Plaintiffs’ Motion for

Preliminary Injunction, which seeks to enjoin implementation of North Carolina Session Law

2018-144, as amended by Session Law 2019-4 and Session Law 2019-22 (“Photo ID Law” or

“SB 824”).

The Photo ID Law’s mandatory implementation has now been in place for a period of

roughly six month since the law went into effect. The State Board of Elections, (“State Board”),

the agency charged with administering many aspects of the Photo ID Law, began the process of

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implementing the General Assembly’s directives related to the requirements of photographic voter identification. Much work still remains to be completed by the State Board prior to the elections cycle of 2020, when the photographic identification requirements for voting are scheduled to go into effect.1 To address the impact of a preliminary injunction and to assist the Court in weighing the equities associated with a preliminary injunction, the Board’s response highlights:
 The timing and substance of various legislative mandates impacting statewide implementation of the Photo ID Law;
 The State Board’s progress towards compliance with the statutory deadlines and directives; and,
 Critical aspects of election administration that could be adversely impacted by the requested injunction. PROCEDURAL BACKGROUND
Plaintiffs filed a Complaint seeking to invalidate and enjoin enforcement of the Photo ID Law, which implements a recently adopted amendment to the North Carolina Constitution requiring voters to present photographic identification before voting in person. Compl. ¶¶ 2–3.
Plaintiffs are six North Carolina voters who allege that the new Photo ID law is unconstitutional both facially, and as applied to their particular circumstances. See Compl. ¶ 6. Plaintiffs assert six constitutional claims regarding the Photo ID Law:
1 The Photo ID Law was originally scheduled to become effective, in large part, immediately upon becoming law. Sess. Law 2018-144, sec. 5. However, the effective date of certain provisions of the law was amended by N.C. Sess. Law 2019-4 (delaying photographic voter identification requirement for voting until 2020 elections cycle), and N.C. Sess. Law 2019-22 (delaying and relaxing certain photographic voter identification requirements for, e.g., colleges and universities). All other educational, outreach and implementation requirements and deadlines remain intact.
2
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I. The Photo ID Law was enacted with discriminatory intent against African-American and American-Indian voters, in violation of Article I, § 19.
II. The law unjustifiably and significantly burdens the fundamental right to vote, in violation of Article I, § 19.
III. The law creates classifications of voters—based on the possession of photo ID, whether the voter is in college, and whether the voter is over 65—and that those classifications determine how freely a voter can cast a ballot, in violation of Article I, § 19.
IV. The law imposes a cost for voting, in violation of Article I, § 10. V. The law imposes a property requirement for voting, in violation of Article I, § 10. VI. The law inhibits the freedom of expression for those not possessing acceptable ID, in
violation of Article I, §§ 12 and 14. All Defendants have moved to dismiss the Complaint. The Legislative Defendants moved to dismiss the Complaint in its entirety, while the State Defendants have moved to dismiss the facial constitutional challenges featured in Claims II through VI. Plaintiffs moved to transfer venue to a three-judge panel pursuant to N.C. Gen. Stat. § 1267.1, asserting that the Complaint alleged facial challenges to the Photo ID Law. See Am. Order of March 14, 2019. The Court referred the entire case to this panel for consideration of the facial challenges. See id. ¶¶ 14–15. Plaintiffs subsequently requested a preliminary injunction to halt the implementation of the law pending determination on the merits.
UPDATED FACTUAL BACKGROUND The parties have outlined their understanding of the relevant factual background in their respective briefs in support of pending motions to dismiss and for preliminary injunction. State Defendants rely upon and incorporate herein by reference their statement of facts as set forth in their brief in support of the motion to dismiss, filed on May 17, 2019. An update on the State Board’s efforts to implement the Photo ID Law, and an insight into critical aspects of election
3
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administration, is provided below to assist the Court as it deliberates on whether an injunction is appropriate.
A. General Provisions and Recent Changes The Photo ID Law was initially enacted on December 19, 2018, and was made effective
as of that date. See Sess. Law 2018-144, sec. 5. On March 14, 2019, the General Assembly postponed enforcement of photo ID requirement for in-person voting until the 2020 elections. See Sess. Law 2019-4, sec. 1.(a).
The Photo ID Law lists the ten types of ID that qualify for use during voting, which include a (1) drivers license; (2) DMV-issued nonoperators ID card; (3) passport; (4) voter ID card issued by a board of elections; (5) tribal enrollment card; (6) student ID card; (7) public employee ID card; (8) out-of-state drivers license or nonoperators ID card, but only if the person registered to vote within 90 days of the election; (9) military ID card; and, (10) veterans ID card. Sess. Law 2018-144, sec. 1.2.(a), § 163A-1145.1(a).
As originally enacted, the Photo ID law prescribed that by March 15, 2019, student IDs and state or local government employee IDs had to meet certain rigorous statutory criteria for approval. Id. sec. 1.2.(b), § 163A-1145.2(a). As a result, the State Board was able to certify IDs from only a limited number of educational institutions and government agencies as of the March deadline. See Affidavit of Karen Brinson Bell (“Bell Aff.”), Ex. D. On June 3, 2019, the General Assembly amended the approval requirements for these IDs, thereby making the approval process less stringent and providing for additional opportunities for these IDs to be approved prior to the 2020 elections. See Bell Aff. ¶ 12 & Ex. E. Institutions that had not sought approval before March may now do so before November 1, 2019; institutions that had their IDs
4
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rejected in March have until November 15, 2019 to reapply under the new requirements. Id. ¶ 12 & Ex. E.
B. Outreach and Training Since this lawsuit was filed in December 2018, the State Board has engaged in a number
of endeavors in anticipation of enforcement of the Photo ID Law. Those efforts include public outreach and education, and the training of local elections officials.
The State Board has prepared county boards to begin issuing free voter ID cards, pursuant to the Photo ID Law, and those cards are now available from each of the 100 county boards of elections in the State. Id. ¶ 9. To accomplish this, as of April 29, 2019, the Board adopted a temporary rule governing the issuance of these ID cards. Id. ¶ 7. The rule requires county boards to issue ID cards upon request from voters at the county board office, and it permits the county boards to go to other locations in the county to issue IDs upon a majority vote of the board. See 08 N.C.A.C. 17.0107(a) (attached as Exhibit A to the Bell Affidavit). A voter need only provide her full name, date of birth, and the last four digits of her Social Security Number to obtain such an ID card. Id. Every county board of elections has purchased a machine to print these IDs and is being reimbursed for that cost by the State Board. Bell Aff. ¶ 9. The State Board has also provided training to county staff on printing the ID cards. Id. ¶ 10 & Ex. C.
The State Board has formed a training and outreach team that is tasked with educating the public and county boards on Photo ID implementation. Id. ¶ 13. That team currently has five full-time employees and one temporary employee, and will soon hire two additional full-time staff members. Id. The team is led by the State Board’s Chief Learning Officer, who was with the Board during the implementation of photo ID in 2015 and 2016. Id.
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As of May 2019, the State Board’s outreach team began conducting public seminars on photo ID, in coordination with county boards. Id. ¶ 14. The team will host two such seminars in each county before September 1, 2019. Id. ¶ 14. The seminars are being advertised in local media. Id. As of June 18, 2019, 48 such seminars have been conducted, while 154 more have been scheduled. Id. ¶ 14 & Ex. F.
This year the State Board will conduct two mass-mailings to every household in North Carolina to inform the public of the requirements of the Photo ID Law. See Sess. Law 2018-144, sec. 1.5.(a)(9). Two additional mailings will go out in 2020. Id. The mailings will describe, at a minimum, the forms of acceptable photo ID, the options for provisional voting for voters who do not present photo ID, and a description of voting mail-in absentee. Id. The State Board has a pending request for proposal with the State Procurement Office to procure a vendor to conduct the two mass-mailings this year. Bell Aff. ¶ 18.
The State Board has also created a webpage devoted to photo ID information, which can be found at ncsbe.gov/voter-id (or alternatively, voterid.ncsbe.gov). Id. ¶ 15. The webpage displays which forms of ID are acceptable at the polls, and includes a link to a form that allows a voter to request a free photo ID from their county board. Id. That webpage also includes information on the aforementioned seminars. Id.
The State Board has created photo ID posters and informational handouts that will be provided to the county boards of elections to be placed in every precinct and one-stop early voting location for the 2019 elections. Id. Exhibit G of the Bell Affidavit displays one such handout. It explains that photo ID will be required in the 2020 elections, identifies which IDs are acceptable, and explains how a voter can obtain an acceptable ID if they do not have one. See Bell Aff., Ex. G. The handout also explains that a voter can cast a provisional ballot if they do
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not show ID, and that their ballot will count if they sign a reasonable impediment affidavit or later present their ID at the county board. Id. The handout will also be available in Spanish. Bell Aff. ¶ 15. A similar handout will be provided to college students when they obtain an ID card from their academic institution, if that institution’s ID card has been approved by the State Board. Id. ¶ 16; see Sess. Law 2018-144, sec. 1.2.(b), § 163A-1145.2(a)(1)h.
County board staff and local poll workers will be responsible for the on-the-ground implementation of the Photo ID Law when it comes time to vote. The State Board has scheduled a statewide conference for county board members and their staff at the end of July 2019, where State Board staff will provide presentations and training materials on photo ID implementation. Bell Aff. ¶ 19. The State Board is also drafting poll worker training documents that include information about the Photo ID Law. Id. This includes updating the official polling “station guide” to ensure uniform actions by poll workers related to photo ID in 2020. Id. ¶ 17. The “station guide” is essentially a handbook for poll workers distributed to every precinct.
Apart from the station guide, and in contemplation of the Photo ID law, the State Board is revising a number of other documents and forms that it uses for election administration. Id. This includes updating the official voter registration form to incorporate information about photo ID, and updating the provisional ballot application form to address photo ID provisions, including the reasonable impediment requirement. Id. The State Board is also in the process of updating its absentee ballot request form and absentee container return envelope in order to effectuate new photo ID requirements for absentee-by-mail voting. Id.
C. Technological Implementation and Deadlines As the State Board administers municipal and special elections in 2019, it is also
planning for changes to its systems that are required by the Photo ID Law. For instance, the
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Board operates the Statewide Elections Information Management System (SEIMS), which is the informational backbone of elections administration in the state. Id. ¶ 21. There are aspects of the SEIMS system that touch on photo ID, including the processing of absentee-by-mail ballot requests, which will require revisions to the computer coding and functionality of SEIMS. Id. Making changes to the SEIMS system takes approximately four months, from documenting business requirements, development, testing, and final production. Id.
SEIMS must be ready to implement the 2020 primary on the date that absentee primary ballots are mailed, which is January 13, 2020. Id. ¶ 22. Accordingly, because of the four-month development period for SEIMS, the State Board must initiate changes by mid-September in order for the system to be capable of carrying out the legal requirements of photo ID in January. Id. ¶ 23. In light of this litigation, the Board’s executive director has instructed the staff responsible for making changes to SEIMS to include the ability to return to the current version of SEIMS in the event of a court-ordered injunction against Photo ID implementation prior to the 2020 elections. Id. ¶ 21. Unless ordered otherwise by this Court, that instruction works to assist the State Board in incorporation of system changes due to the Photo ID Law into SEIMS, and helps the Board with any reversal of the incorporated changes (to the current version of the system) if the Photo ID Law is ultimately invalidated in the courts.
LEGAL STANDARD A preliminary injunction is an “extraordinary measure taken by a court to preserve the status quo of the parties during litigation.” DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 578, 561 S.E.2d 276, 281 (2002) (quoting Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977)). A preliminary injunction may issue only if: (1) the plaintiff shows a likelihood of success on the merits of the case, and (2) the plaintiff “is likely to sustain
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irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff’s rights during the course of litigation.” Id. (quoting Investors, Inc., 293 N.C. at 701, 239 S.E.2d at 574). The party moving for a preliminary injunction bears the burden of establishing entitlement to the relief. Pruitt v. Williams, 25 N.C. App. 376, 379, 213 S.E.2d 369, 371 (1975).
The issuance of a preliminary injunction “is a matter of discretion to be exercised by the hearing judge after a careful balancing of the equities.” Horner Int’l Co. v. McKoy, 232 N.C. App. 559, 561, 754 S.E.2d 852, 855 (2014) (quoting A.E.P. Indus., Inc. v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983)). However, “[a] preliminary injunction should not be granted if a serious question exists in respect of the defendant’s right to do what the plaintiffs seek to restrain and the granting thereof would work greater injury to the defendant than is reasonably necessary for the protection pendente lite of the plaintiffs’ rights.” Setzer v. Annas, 286 N.C. 534, 540, 212 S.E.2d 154, 157-58 (1975) (citing Huskins v. Hospital, 238 N.C. 357, 361, 78 S.E. 2d 116, 120 (1953); Board of Elders v. Jones, 273 N.C. 174, 182, 159 S.E. 2d 545, 551-552 (1968)). The hearing judge must consider the relative conveniences and inconveniences of the parties in determining the propriety of a preliminary injunction and the terms thereof. Id.
ARGUMENT I. ENJOINING THE PHOTO ID LAW WILL HALT THE STATE BOARD’S
EFFORTS TO EDUCATE THE PUBLIC AND LOCAL BOARDS ON THE LAW’S REQUIREMENTS. The State Board is in the middle of voter outreach and county board training for the implementation of the Photo ID Law. See Bell Aff. ¶¶ 6–16, 18–19. County boards have acquired the necessary equipment for printing free photo identification cards for voters, the State Board has trained local boards on the use of that equipment, and the State Board is in the process of reimbursing the county boards for that expense. Id. ¶¶ 9-10. The State Board has commenced
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a statewide public seminar campaign, as required by the Photo ID Law, to educate voters on the requirements of the Photo ID law. Soon, the State Board will make technical changes to its systems, processes, and forms so that elections administrators can enforce the photo ID requirement when the first ballots go out on January 13, 2020. See id. ¶¶ 17, 21–23.
The Photo ID Law requires the State Board to conduct “an aggressive voter education program concerning the provisions” of the law. Sess. Law 2018-144, sec. 1.5.(a). Outreach, public education, and training are now taking place, and some of these efforts will necessarily continue well into 2020. However, if the law is enjoined, certain activities will necessarily cease or be severely impacted, including:
 The requirement to coordinate “with each county board of elections so that at least two seminars are conducted in each county prior to September 1, 2019.” Id. § 1.5.(a)(4).
 The requirement to notify “each registered voter who does not have a North Carolina issued drivers license or identification card a notice of the provisions of this act by no later than September 1, 2019.” Id. § 1.5.(a)(8).
 The State Board’s timely mailing of “information to all North Carolina residential addresses, in the same manner as the Judicial Voter Guide, twice in 2019 and twice in 2020 that, at a minimum, describes forms of acceptable photo identification when presenting to vote in person, the options for provisional voting for registered voters who do not present the required photo identification, and a description of voting mailin absentee.” Id. § 1.5.(a)(9).
 The State Board’s ability to create “a list containing all registered voters of North Carolina who are otherwise qualified to vote but do not have a North Carolina drivers
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license or other form of identification containing a photograph issued by the Division of Motor Vehicles of the Department of Transportation, as of September 1, 2019.” Id. § 1.5.(b). The above represents a non-exhaustive list. If an injunction were imposed now, and then later lifted during a subsequent hearing by either this Court, or an appellate court, the State Board will likely be unable to timely meet all of the outreach and training efforts mandated by the law, including the training of local administrators, conducting of public educational seminars, and the dispatch of mass-mailings. Bell Aff. ¶ 24. For instance, an injunction may lead to an unequal distribution of public information among the State’s counties: some counties have already had an opportunity to start education of their residents on the photo ID requirements of the law through free public seminars coordinated by the State Board, while many other counties will be left with either no opportunity to timely educate their residents through free seminars, or with a delayed opportunity to do so. Id. ¶¶ 14-24. As explained supra, the State Board’s elections information management system, SEIMS, also requires sufficient lead time for proper design and testing. An injunction that exceeds the mid-September timeframe may severely disrupt development, testing, and production of SEIMS. That is so because while the Executive Director instructed the Board to make preparations to be able to reverse any SEIMS changes related to the Photo ID Law in case if this law is invalidate by the Court, the same is not true if incorporation of the Photo ID related changes is halted altogether. Any injunction that pauses incorporation of the Photo ID Law requirements past mid-September would likely result in the State Board not being able to incorporate those changes in time for 2020 election due to the design, development and testing requirements, even if the law is ultimately upheld.
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Naturally, future litigation outcomes cannot be precisely predicted. Nevertheless, it can be safely assumed that the imposition of an injunction that is subsequently vacated by this or another court will result in a severe impediment in the State Board’s efforts to prepare public, and prime the machinery of election administration, for the photo ID requirement. See Bell Aff. ¶ 24. A preliminary injunction, that is later lifted, will result in multiple adverse consequences upon the administration of elections by the State Board.
The likelihood of a harm to the State Board from an injunction is further highlighted by the State Defendants’ Motion to Dismiss Plaintiffs’ facial challenge to the Photo ID Law. With respect to Claims II through VI, the State Defendants have argued that Plaintiffs are unable to meet the high burden required to establish that the legislation is invalid on its face. Specifically, Plaintiffs are required to show there are no circumstances in which the State would be able to implement the Photo ID Law in a way that satisfies the requirements of the State constitution, and that as a consequence, the law is invalid as written. As argued in the State Defendants’ motion to dismiss, Plaintiffs have failed to meet that exacting standard. This reality weighs against the issuance of injunction: Plaintiffs’ inability to ultimately succeed on the merits will almost certainly subvert the State Board’s ability to comply with duly enacted legislation.
II. A SWIFT DECISION ON THE MERITS WILL WELL-SERVE THE STATE BOARD AND THE PUBLIC.
The State Board is justifiably wary of the consequences for election administration if an injunction is issued and later lifted. Meanwhile, the State Board also recognizes that if it were to continue implementation of the Photo ID law, only to find later that the Photo ID requirement is struck down, the Board will encounter different challenges and obstacles. The Board will have to expend its limited resources, both fiscal and available time, on retraining poll workers and county board staff on not requiring photo ID. This expenditure is compounded by the fact that
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the State Board will also have to re-educate voters that the photo ID requirements are no longer operative.
Recognizing that the path of litigation is unpredictable, a primary objective for the State Board is to expediently obtain clear guidance on what law, if any, will need to be enforced. With that in mind, if the Court is inclined to issue an injunction at this stage, the State Board requests that it be granted some flexibility in making technical preparations that will allow it to implement the law in the event the injunction were later vacated. This flexibility would include being permitted to develop updates to the SEIMS system to account for the administration of an election with, and without, photo ID, while also directing county boards not to discard pre-photo ID materials in anticipation of the possibility that those materials become necessary to use again.
CONCLUSION The State Defendants respectfully ask the Court to consider the outlined challenges faced by the State Board in determining whether an issuance of any injunction of the Photo ID Law is appropriate. If the Court ultimately leans in favor of injunctive relief, the State Defendants request to be permitted some flexibility to account for the possibility of enforcing the law in the future. Respectfully submitted, this 19th day of June, 2019.
JOSHUA H. STEIN Attorney General /s/ Paul M. Cox Paul M. Cox Special Deputy Attorney General N.C. State Bar No. 49146 Email: pcox@ncdoj.gov Olga E. Vysotskaya de Brito Special Deputy Attorney General N.C. State Bar No. 31846
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Email: ovysotskaya@ncdoj.gov Amar Majmundar Senior Deputy Attorney General N.C. State Bar No. 24668 Email: amajmundar@ncdoj.gov N.C. Department of Justice Post Office Box 629 Raleigh, NC 27602 Phone: (919) 716-0185 Counsel for the State Defendants
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the forgoing STATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION was served on the requesting parties by email, addressed as follows:
Allison J. Riggs allison@southerncoalition.com Jaclyn A. Maffetore jayclyn@southerncoalition.com
Jeffrey Loperfido jeff@southerncoalition.com Gregory Moss greg@southerncoalition.com
Southern Coalition for Social Justice 1415 W. Highway 54, Suite 101 Durham, NC 27707 Attorneys for Plaintiffs
Andrew J. Ehrlich aehrlich@paulweiss.com Richard Ingram ringram@paulweiss.com Apeksha Vora avora@paulweiss.com Patrick Kessock pkessock@paulweiss.com Ethan Merel emerel@paulweiss.com
Benjamin E. Moskowitz bmoskowitz@paulweiss.com Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 Attorneys for Plaintiffs
Pete Patterson ppatterson@cooperkirk.com Nicole Moss nmoss@cooperkirk.com
Joseph Masterman jmasterman@cooperkirk.com Haley Proctor hproctor@cooperkirk.com Cooper & Kirk, PLLC 1523 New Hampshire Avenue N.W. Washington, DC 20036
Attorney for Defendants Berger, Moore, Lewis and Hise
Nathan A. Huff Nathan.huff@phelps.com Phelps Dunbar LLP GlenLake One
4140 ParkLake Ave, Ste 100 Raleigh, NC 27612
Attorney for Defendants Berger, Moore, Lewis and Hise
This the 19th day of June, 2019.
/s/ Paul M. Cox Paul M. Cox Special Deputy Attorney General
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EXHIBIT C
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1/11/2019

News Releases & Advisories

AG STEIN MOVES TO DISMISS CASE ON VOTING LAW
Release date: 2/21/2017
For Immediate Release: Tuesday, Feb. 21, 2017
Contact: Laura Brewer (919) 716-6484
AG Stein Moves to Dismiss Case on Voting Law
(RALEIGH, NC) Attorney General Josh Stein today moved to dismiss the pending petition to the U.S. Supreme Court on the voting law passed in 2013.
“The right to vote is our most fundamental right,” said AG Stein. “Voting is how people hold their government accountable. I support efforts to guarantee fair and honest elections, but those efforts should not be used as an excuse to make it harder for people to vote.”
In addition to protecting voting rights for North Carolinians, AG Stein’s action seeks to save the state up to $12 million in potential liability. Attorneys representing the plaintiffs have agreed to waive up to $12 million of legal fees from the more than three-year litigation if the petition is dismissed and the litigation ends.
Background on this case:
· After the 2013 law was enacted, a unanimous panel of judges of the U.S. Fourth Circuit Court of Appeals struck it down, writing that “the new provisions target African Americans with almost surgical precision.” · Shortly before he left office, Gov. Pat McCrory filed a petition with the U.S. Supreme Court to overturn the Fourth Circuit Court’s ruling. · AG Stein’s action today moved to dismiss that petition, which if granted would mean that the Fourth Circuit Court’s ruling against the legislation would be final. · For more information on this case please view the attached fact sheet.
###
North Carolina Department of Justice / Josh Stein, Attorney General (919) 716-6400

https://www.ncdoj.gov/News-and-Alerts/News-Releases-and-Advisories/Press-Releases/AG-Stein-Moves-to-Dismiss-Case-on-Voting-Law.aspx

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EXHIBIT D
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1/11/2019

NC Gov Cooper: Gov Cooper Issues Statement on SCOTUS Voter Access Decision
GOVERNOR

Gov. Cooper Issues Statement on SCOTUS Voter Access Decision

RALEIGH
May 15, 2017
Today, Governor Cooper responded to the Supreme Court’s decision not to reinstate the voting restrictions law overturned in federal court last year:
“Today’s announcement is good news for North Carolina voters. We need to be making it easier to vote, not harder – and the Court found this law sought to discriminate against AfricanAmerican voters with “surgical precision.” I will continue to work to protect the right of every legal, registered North Carolinian to participate in our democratic process. “
In February, Governor Cooper and Attorney General Stein moved to end the case (http://www.wral.com/cooper-stein-move-to-end-voting-rights-case/16542573/) by withdrawing the state’s petition for appeal to the Supreme Court.
Contact Information
Ford Porter govpress@nc.gov (mailto:govpress@nc.gov) 919-814-2100

Donate to Hurricane Recovery (donate-florence-recovery) Case 1:20-cv-00457-WO-JLW Document 17-5 Filed 06/10/20 Page 2 of 2

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Civil Action No. 1:20-cv-457

DEMOCRACY NORTH CAROLINA, et al., )

)

Plaintiffs,

)

v.

)

)

THE NORTH CAROLINA STATE BOARD )

OF ELECTIONS; et al.,

)

)

Defendants.

)

RESPONSE TO MOTION TO INTERVENE
[DE 16]

NOW COME Defendants—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; Ken Raymond, 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; David C. Black, in his 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; the North Carolina Department of Transportation; J. Eric Boyette, in his official capacity as Transportation Secretary; the North Carolina Department of Health and Human Services; Mandy Cohen, in her official capacity as Secretary of Health and Human Services—and hereby respond to the Motion to Intervene filed on 10 June 2020 by Philip E. Berger, President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, Speaker of the North

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Carolina House of Representatives [DE 16]. Defendants do not take a position on the motion to intervene. Should the Court
determine that the Proposed Intervenors should be permitted to proceed as part of this action, the Proposed Intervenors should be allowed to do so under the permissive intervention provisions of Rule 24(b).
Plaintiffs filed this action on 22 May 2020. Through it, they challenge various provisions of North Carolina election law, alleging that in the context of the COVID-19 pandemic, those election law provisions infringe on their rights under the United State Constitution and federal statutes. Plaintiffs filed their First Amended Complaint [DE 8] and their Motion for Preliminary Injunction [DE 9] on 5 June 2020.
On 10 June 2020, President Pro Tempore of the North Carolina Senate, Phillip E. Berger, and Speaker of the North Carolina House of Representatives, Timothy K. Moore, moved to intervene in this action, asserting that defendants “are not adequate representatives of Proposed Intervenors’ interests,” and that “this Court should hold that the executive branch officers and agencies named as defendants are inadequate representatives of the State’s and General Assembly’s interests as a matter of law.” [Memorandum in Support of Motion to Intervene, DE 17 at 12]
Mandatory intervention is not appropriate here. Proposed Intervenors claim that they have “the interest of the State in defending the constitutionality of the challenged laws.” DE 17 at 8. But the State itself is not a defendant in this lawsuit. The named defendants are the State Board of Elections, its members sued in their official capacities, the Department of Transportation and its Secretary sued in his official capacity, and the
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Department of Health and Human Services and its Secretary sued in her official capacity— all for their connection to the enforcement of the statutory provisions challenged here. The Proposed Intervenors do not claim (nor could they) that they have any authority to direct the defense of the defendants here. At most, the Proposed Intervenors can press only the interests of the General Assembly in this lawsuit.
But it is not clear that those interests are significantly protectable to require the intervention of the Proposed Intervenors here. Indeed, this Court recently held, in a case challenging the constitutionality of a law requiring voters to present photo identification, that these same Proposed Intervenors “failed to demonstrate that they have a significantly protectable interest in likewise defending the constitutionality of S.B. 824 sufficient to warrant a right to intervene under Rule 24(a)(2).” NC NAACP v. Cooper, No. 18-cv-1034, DE 56 at 11 (M.D.N.C. June 3, 2019).
Defendants also dispute with the Proposed Intervenors’ contention that intervention is necessary or required under N.C. GEN. STAT. §§ 1-72.2 and 120-32.6. The interpretations of sections 1-72.2 and 120-32.6 that the Proposed Intervenors advance raise profound issues of state constitutional law, including separation of powers as guaranteed under the North Carolina Constitution. This is not the appropriate setting for those issues to be resolved, and the Court need not do so to resolve Proposed Intervenors’ Motion.
The Proposed Intervenors also challenge the ability of the current defendants to defend the case, as well as the ability of the Attorney General’s office to serve as counsel in the defense of the case. The Proposed Intervenors’ presentation of the conduct of the Attorney General’s office in this case and others is misleading.
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First, the Proposed Intervenors appear to press a view of North Carolina law that per se finds inadequate defense of state statutes by executive branch officers and agencies. [DE 17 at 12] This is a remarkable assertion. It is also rebutted by the fact that—as this Court recently held—federal courts are only requested to allow the legislative branch to participate; the legislative branch is “not automatically entitled to intervene as of right.” NC NAACP, No. 18-cv-1034, DE 56 at 11 (citing N.C. R. Civ. P. 19(d) and N.C. GEN. STAT. § 1-72.2). Again, however, it is not necessary for this Court to rule on the Proposed Intervenors’ interpretation of these state statutes at this time.
Second, the Proposed Intervenors’ assertion that Defendants only have an “interest in the administration of state elections,” [DE 17 at 12] is wrong. See, e.g., Judicial Watch, Inc. v. State of North Carolina, No. 3:20-cv-211, DE 29 at 2–3 (State Board of Elections and its members rejecting argument by proposed intervenors that the State Board defendants have an interest only in elections-administration). The Attorney General is the officer authorized by the North Carolina Constitution and North Carolina statutes to represent the interests of North Carolina, its agencies and executive officers, and the people of the State. Martin v. Thornburg, 320 N.C. 533, 359 S.E.2d 472 (1987); N.C. GEN. STAT. § 114-2.
Finally, the Proposed Intervenors assert that there is “reason to question the resoluteness with which Defendants would defend” the laws being challenged in this case because Executive Director Bell and Attorney General Stein both suggested policy changes to the General Assembly in its consideration of legislative changes to elections laws. [DE 17 at 14] The Executive Director’s and Attorney General’s policy suggestions are not
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material to the question of whether the Executive Director as a defendant and the Attorney General as counsel to the defendants would be able to adequately defend state law.
The Proposed Intervenors also claim that the positions that the Governor—who is not a party to this action—took in a separate litigation, involving an entirely different statute, somehow disqualify the State Board and its members from being able to defend the statutes challenged here, and in addition, disqualify the Attorney General, who represented the Governor in that separate action, from adequately representing the State Board and its members here. [DE 17 at 16] But a party does not become inadequate for purposes of intervention due to positions taken by a non-party in a separate case involving completely different legal issues. And certainly, a party does not become inadequate because its lawyer represented a different party that took different positions in a separate action involving completely different legal issues.
Nevertheless, the Defendants neither consent nor object to the Proposed Intervenors’ motion under Rule 24(b), and defer to the Court’s determinations regarding whether and in what capacity the Proposed Intervenors should be permitted to proceed as part of this action.1
1 As though the determination of adequacy of representation of interests is dependent on the quantity of litigation, as opposed to quality, the Proposed Intervenors claim that participation as amici would not adequately protect their interests because they would not be able to proffer evidence of their own. To support this contention, they claim that this Court granted the plaintiffs’ preliminary injunction motion in NC NAACP because this Court struck the Proposed Intervenors’ expert reports and the State Board members did not themselves offer expert reports rebutting the plaintiffs’ experts. [DE 17 at 17] Defendants note that the Proposed Intervenors were able to introduce into evidence these same expert reports in the companion case in state court challenging the same statute in Holmes v.
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This the 12th day of June, 2020.

JOSHUA H. STEIN Attorney General
/s/ Alexander McC. Peters Alexander McC. Peters N.C. State Bar No. 13654 Chief Deputy Attorney General Email: apeters@ncdoj.gov
Kathryne E. Hathcock N.C. State Bar No. 33041 Assistant Attorney General Email: khathcock@ncdoj.gov
N.C. Dept. of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919) 716-6900 Facsimile: (919) 716-6763

Moore, No. 18-cvs-15292 (N.C. Super. Ct. Wake Cty.). And in Holmes, the North Carolina Court of Appeals ordered the trial court to grant the plaintiffs’ motion for preliminary injunction, despite the introduction of these same expert reports. 840 S.E.2d 244, 266-67 (N.C. Ct. App. 2020).
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CERTIFICATE OF SERVICE I hereby certify that on this date I electronically served the foregoing RESPONSE TO MOTION TO INTERVENE with the Clerk of Court using the CM/ECF system, which will send notification of such to all counsel for record in this matter.

This the 12th day of June, 2020.

/s/ Alexander McC. Peters Alexander McC. Peters Chief Deputy Attorney General

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,
Plaintiffs,

vs.

Civil Action No. 20-cv-457

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendants.

PLAINTIFFS’ OPPOSITION TO PROPOSED INTERVENORS’ MOTION
TO INTERVENE

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INTRODUCTION The General Assembly seeks intervention in this case in order to represent “(1) the interest of the State in defending the constitutionality of the challenged laws; and (2) the interest of the General Assembly in defending its legislative enactments and authority.” Proposed Intervenors’ Br. in Supp. of their Mot. to Intervene (“Proposed Intervenors’ Br.”), ECF No. 17, at 8 (emphasis in original). Its intervention is necessary, it claims, to defend against a “frontal assault” to these asserted interests, because “Plaintiffs are seeking to usurp [its] authority [to regulate the time, place, and manner of elections under Article I, Section 4 of the U.S. Constitution] for themselves by asking the Court to impose upon the State Plaintiffs’ preferred elections procedures ‘with respect to any election in the state during the COVID19 pandemic.’” Id. at 10. The General Assembly’s arguments do not demonstrate an interest in this case, but rather a broader grievance with principles of federalism. Under those principles, Plaintiffs have a right to seek relief from federal courts for constitutional violations committed by states, Obergefell v.
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Hodges, 135 S. Ct 2584, 2605 (2015); federal courts have a duty to define “what the law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803); and “the federal judiciary is supreme in the exposition of the law of the Constitution,” Cooper v. Aaron, 358 U.S. 1, 18 (1958); see also U.S. Const. art. VI (“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land . . .”).
State legislatures unquestionably hold the right to pass legislation, but they do not have the right to pass unconstitutional legislation. See U.S. Const. amend. XIV, § 1 (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”). What is more, the Supreme Court has already indicated that state legislatures do not invariably have an interest in defending statutes in federal court. Cf. Hollingsworth v. Perry, 570 U.S. 693, 707 (2013) (holding that proponents of
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California’s Proposition 8 could not represent the state on appeal where they “have no role—special or otherwise—in the enforcement of Proposition 8” once it was duly enacted (emphasis added)); see also Planned Parenthood of Wis. v. Kaul, 942 F.3d 793, 798 (7th Cir. 2019) (denying legislature’s motion to intervene).
Given the General Assembly’s failure to identify a cognizable interest in this case, the Court should deny its Motion to Intervene.
FACTUAL BACKGROUND The North Carolina General Assembly, through the Speaker of the House and President Pro Tempore, has moved to intervene in this case as of right or, in the alternative, with permission from the Court, in order to defend the statutes challenged by Plaintiffs as unconstitutional if enforced during the COVID-19 pandemic. It asserts three grounds for intervention: to represent the State’s interests and its own interests, Proposed Intervenors’ Br., ECF No. 17, at 8; and “to participate fully in the development of a record in this case and, if necessary, file a notice of appeal,” id. at 16. It also expresses concern that Defendants will not adequately
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represent these interests, because Defendant Brinson Bell and the Attorney General have contacted the General Assembly to advocate for certain changes that the General Assembly contends are identical to the relief sought by Plaintiffs. See id. at 14–16.
ARGUMENT I. The General Assembly is not entitled to intervene as of
right. The General Assembly does not satisfy the requirements to intervene as of right in this matter. A party seeking to intervene under Federal Rule of Civil Procedure 24(a) must demonstrate “(1) timeliness, (2) an interest in the litigation, (3) a risk that the interest will be impaired absent intervention, and (4) inadequate representation of the interest by the existing parties.” Scott v. Bond, 734 F. App’x 188, 191 (4th Cir. 2018). Here, although the General Assembly’s motion is timely, it does not meet the remaining factors for intervention because it has no cognizable interest in this case and the current Defendants adequately represent the interests it asserts.
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A. The General Assembly has no identifiable interest. A proposed intervenor must hold a “significantly protectable interest” in the litigation it moves to join. JLS, Inc. v. Pub. Serv. Comm’n of W.Va., 321 F. App’x 286, 289 (4th Cir. 2009) (quoting Teague v. Bakker, 931 F.2d 259 (4th Cir. 1991)). This exists when an intervenor “stand[s] to gain or lose by the direct legal operation” of the judgment in the case. Teague, 931 F.2d at 261. Two provisions of North Carolina law discuss the General Assembly’s role in litigation challenging the constitutionality of state laws. The first, N.C. Gen. Stat. § 120-32.6, provides that in cases challenging the validity or constitutionality of a state law in state or federal court, the Speaker of the House and President Pro Tempore of the Senate “shall be deemed to be a client of the Attorney General” and “shall possess final decision-making authority with respect to the defense of the challenged act of the General Assembly or provision of the North Carolina Constitution.” N.C. Gen. Stat. § 120-32.6(b); see also id. § 114-2(10). Additionally, “the General Assembly shall be deemed to be the State of North Carolina to the extent provided in G.S. 1-72.2(a) unless waived pursuant to
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this subsection.” N.C. Gen. Stat. § 120-32.6(b) (emphasis
added). In turn, N.C. Gen. Stat. § 1-72.2(a) states:
It is the public policy of the State of North Carolina that in any action in any federal court in which the validity or constitutionality of an act of the General Assembly or a provision of the North Carolina Constitution is challenged, the General Assembly, jointly through the Speaker of the House of Representatives and the President Pro Tempore of the Senate, constitutes the legislative branch of the State of North Carolina; the Governor constitutes the executive branch of the State of North Carolina; that, when the State of North Carolina is named as a defendant in such cases, both the General Assembly and the Governor constitute the State of North Carolina . . . .
Id. § 1-72.2(a) (emphases added). The statute also grants the
Speaker and President Pro Tempore “standing to intervene on
behalf of the General Assembly as a party in any judicial
proceeding challenging a North Carolina statute or provision
of the North Carolina Constitution.” Id. § 1-72.2(b)
(emphasis added).
However, and contrary to Proposed Intervenors’
assertions otherwise, these provisions of state law are not
dispositive of the issue before the Court: Even when state
statutes grant this authority to state legislatures, they
merely “inform the Rule 24(a)(2) calculus” and the
legislatures must still satisfy Rule 24(a)’s requirements. 7
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Planned Parenthood of Wis., 942 F.3d at 797 (quoting Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197 (1st Cir. 1998)); see also Dept. of Fair Empl’t. & Hous. v. Lucent Tech., Inc., 642 F.3d 728, 741 (9th Cir. 2011).
The Supreme Court’s recent decision in Virginia House of Delegates v. Bethune-Hill offers further clarity as to when a state legislature holds an interest in federal litigation challenging a state law. There, the Virginia House of Delegates intervened in a federal case challenging the constitutionality of the state’s redistricting plan, and later sought to represent the state on appeal after the Attorney General declined to appeal the district court’s ruling in favor of the plaintiffs. The Supreme Court held that the House did not have standing to represent the state in federal court because Virginia law designated the Attorney General as the state’s representative in federal court. 139 S. Ct. 1945, 1951–52 (2019). It also rejected the House’s reliance on Karcher v. May, 484 U.S. 72 (1987), where the Court had recognized that “the New Jersey Legislature had authority under state law to represent the State’s interests . . . .” Bethune-Hill, 139 S. Ct. at 1952 (quoting Karcher,
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484 U.S. 72). The Court observed, “the Court in Karcher noted no New Jersey statutory provision akin to Virginia’s law vesting the Attorney General with exclusive authority to speak for the Commonwealth in civil litigation.” Id.
The Court further held that the House did not have standing to represent itself on appeal. It distinguished Arizona State Legislature v. Arizona Indep. Redistricting Commission, 135 S. Ct. 2652 (2015), where the Court recognized the Arizona Legislature’s standing to challenge a referendum that “permanently deprived” the Legislature of its constitutionally provided authority to conduct redistricting. Bethune-Hill, 139 S. Ct. at 1954 (emphasis in original). The Arizona Legislature had also satisfied the standing requirement because the state constitution charged both chambers with redistricting, and both chambers had joined the litigation. Id. By contrast, in Bethune-Hill, only the House of Delegates had intervened in the trial court, though the Virginia constitution vested both chambers with the responsibility of redistricting. Id. at 1953. “[A] single House of a bicameral legislature lacks capacity to assert
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interests belonging to the legislature as a whole.” Id. at 1953–54.
Although the Fourth Circuit has not decided whether intervenor-defendants must prove standing, see N.A.A.C.P., Inc. v. Duplin Cty., No. 7:88-CV-00005-FL, 2012 WL 360018, at *3 (E.D.N.C. Feb. 2, 2012), Bethune-Hill is instructive, especially given that the General Assembly is seeking intervention in part so that it can “file a notice of appeal” if this Court rules in favor of Plaintiffs on the merits and, presumably, if the existing Defendants decline to do so. Proposed Intervenors’ Br., ECF No. 17, at 16. Under the reasoning articulated by the Bethune-Hill Court, the North Carolina General Assembly does not have a cognizable interest in this case, either to represent the State’s interests or its own.
First, North Carolina law does not grant the General Assembly the authority to intervene in cases like this to represent the State’s interests. N.C. Gen. Stat. § 1-72.2(b). That role belongs instead to the Attorney General, who has a duty “to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State
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may be a party or interested.” Id. § 114-2(1). Additionally, when, as here, a suit challenges the constitutionality of a state statute, “both the General Assembly and the Governor constitute the State of North Carolina”. Id. § 1-72.2(b). Thus, the General Assembly cannot represent the State without the Governor, who is not a party to this suit and who has not moved to intervene. Just as the Virginia House of Delegates could not single-handedly defend the state’s redistricting map where state law had assigned redistricting to both chambers of the state legislature, so here the North Carolina General Assembly cannot speak for the State without the Governor.
Second, this case does not seek to permanently deprive the General Assembly of its “right” under Article I, Section 4 of the U.S. Constitution to enact laws governing the time, place, and manner of elections. Regardless of the result of this litigation, it will continue to have the authority and ability to pass election laws that do not violate the federal and state constitutions. See Bethune-Hill, 139 S. Ct. at 1954. Accordingly, the General Assembly does not stand to “gain or
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lose” its interest in legislating by direct legal operation of the judgment in this case. Teague, 931 F.2d at 261.
Finally, with respect to any asserted interest on the part of the General Assembly to defend the constitutionality of the laws it has passed, the Supreme Court has suggested that lawmakers have no special interest in defending laws after their enactment. Cf. Hollingsworth, 570 U.S. at 707 (holding that group responsible for adoption of California’s Proposition 8 could not represent the state on appeal where it lacked the necessary “personal stake” in the proceedings because its role had ended with proposition’s adoption and because state law did not give it the authority to represent the state); Planned Parenthood of Wis., 942 F.3d at 798 (“The regulations PPWI challenges are also ‘concededly enacted’ (the Legislature notes that some have existed for decades), and so the Legislature-as-legislature has no interest in this case under Article III or Rule 24.”). Instead, as noted, that interest belongs to the State as a whole.
Throughout its brief, the General Assembly repeatedly emphasizes its interest in enacting election laws. Plaintiffs agree that the General Assembly has an interest in
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legislating—but not in litigating. That role falls on executive officials—in this case, the Attorney General—who are tasked with enforcing and defending the laws passed by the General Assembly. See N.C. Gen. Stat. § 114-2(1). Because it has failed to assert any cognizable, actionable interest in this case, the General Assembly’s Motion to Intervene must be denied.
B. Even if the General Assembly had a cognizable interest, it would not be impaired by denial of its Motion to Intervene.
Even if one assumes that the General Assembly has identified an actionable interest (which it has not), it has not articulated how that interest will be impaired if its request for intervention is denied. It bears reiterating that this case will not alter the General Assembly’s underlying authority to regulate the time, place, and manner of elections. This Court, by exercising its powers under the U.S. Constitution to interpret federal law and enjoin state laws that do not conform to its requirements, will not “usurp” the General Assembly’s prerogative to pass these laws if it grants Plaintiffs’ requested relief, because states have no interest in passing and enforcing unconstitutional laws. The
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General Assembly therefore cannot make the showing of impairment needed to intervene as of right.
C. The existing Defendants adequately represent the interests asserted by the General Assembly.
The General Assembly has also failed to show that the Defendants and the Attorney General will not adequately represent the State’s interests. When a proposed intervenor and an existing party have the same goal, a presumption of adequate representation attaches, “which can only be rebutted by a showing of adversity of interest, collusion, or nonfeasance.” Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013) (internal quotation marks omitted); Commonwealth of Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976). When the existing party is a government agency, “a very strong showing of inadequacy is needed to warrant intervention.” Huff, 706 F.3d at 349 (internal quotation marks omitted). Disagreements over litigation strategy are insufficient. Id. at 355 (“In sum, appellants have done little more than identify reasonable litigation decisions made by the Attorney General with which they disagree. Such differences of opinion cannot be sufficient to warrant intervention as of right, for, as already discussed, the harms
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that the contrary rule would inflict upon the efficiency of the judicial system and the government’s representative function are all-too-obvious.”); see also Planned Parenthood of Wis., 942 F.3d at 808 (Sykes, J., concurring) (“[A] mere disagreement over litigation strategy is not enough to show inadequacy of representation.”).
Here, the General Assembly suggests that Defendants will collude with Plaintiffs and fail to provide a vigorous defense of the challenged statutes because Defendant Brinson Bell— one of several Defendants—and their legal representative, Attorney General Stein, previously advocated for policy changes that are similar to Plaintiffs’ requested relief. However, the General Assembly offers no evidence suggesting that Defendants have colluded with Plaintiffs or that the Attorney General will not rigorously uphold the duty of that office to defend the State’s enactments.
The General Assembly cites a handful of years’ old news articles about Attorney General Stein’s successful motion to dismiss the State’s petition for certiorari in an entirely different matter, which sought review of the Fourth Circuit Court of Appeals’ finding that North Carolina’s voter ID law
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was unconstitutional. The General Assembly’s reliance on a years-old voter ID matter is irrelevant here and, in any event, reflects only a disagreement over litigation strategy insufficient to overcome the presumption of adequacy.
Moreover, Defendants’ conduct—Defendant Brinson Bell and Attorney General Stein’s efforts to persuade the General Assembly to modify the State’s election laws in light of COVID-19—demonstrates deference to and respect for the General Assembly’s lawmaking role. And the General Assembly has not identified any past conduct by Defendant Brinson Bell or other Defendants that would support the conclusion that they will collude with Plaintiffs. The fact that Defendant Brinson Bell sought to honor the traditional democratic process by taking her concerns to lawmakers indicates a likelihood she will continue to honor that process by defending the challenged statutes. Absent stronger evidence of collusion, adversity of interest, or nonfeasance, the presumption of adequate representation remains unrebutted and the General Assembly’s motion must fail.
As Proposed Intervenors have failed to articulate a cognizable interest in this action or to show that the current
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Defendants would not adequately represent that interest, the motion to intervene by right should be denied. II. Permissive intervention is not warranted.
Permissive intervention would also be inappropriate in this case. A motion to intervene under Rule 24(b) must not “unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). In this case, allowing the General Assembly to intervene would cause undue delay and prejudice to Plaintiffs and Defendants.
First, any arguments raised and discovery requested by the General Assembly is likely to be duplicative of Defendants’. The General Assembly expresses a desire to develop a record in the case, but does not specifically identify how it expects its discovery requests will differ from those that can be anticipated from Defendants, or what specific information it plans to seek. At most, it raises general, unsubstantiated concerns that Defendants will not vigorously defend the challenged statutes.
Second, time is of the essence in this case. The November General Election is now less than five months away, and Plaintiffs have sought a preliminary injunction and expedited
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review of their motion. ECF No. 9. Adding another, redundant and unnecessary party to this case will only delay the Court’s decision on Plaintiffs’ pending Motion for Preliminary Injunction. For the same reasons set forth in Plaintiffs’ memorandum in support of that motion, ECF No. 10 at 12, any such delay could have catastrophic consequences for the fall general election, and there is an immediate need to start preparing for this election. Any delay therefore risks severe prejudice to all parties, as well as the voters of this State, as it will make it more difficult (or potentially impossible) for Defendants to adapt to any changes ordered by the Court and to properly prepare for the fall general election in accordance with any relief the Court may see fit to grant—a result that ultimately harms voters. By contrast, the General Assembly cannot articulate any concrete harm it will suffer if it is denied intervention in this case. Its request for permissive intervention should therefore also be denied.1
1 Should the Court decide to grant permissive intervention, Plaintiffs respectfully request that it limit discovery that can be taken by the General Assembly to exclude the taking of any discovery prior to the Court’s hearing on Plaintiffs’ Motion for Preliminary Injunction, as well as any discovery that may be duplicative of Defendants’ requests. “When granting an application for permissive
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CONCLUSION For the foregoing reasons, the General Assembly has not met its burden in showing that it is entitled to intervene as of right, or that its asserted interests merit permissive intervention. Plaintiffs therefore respectfully request that the Court deny its Motion to Intervene.
(Rest of page intentionally left blank)
intervention, a federal district court is able to impose almost any condition, including the limitation of discovery.” Columbus-America Discovery Grp. v. Atlantic Mut. Ins. Co., 974 F.2d 450, 469 (4th Cir. 1992).
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Dated: June 12, 2020.

Respectfully Submitted,

/s/ Jon Sherman Jon Sherman D.C. Bar No. 998271 Michelle Kanter Cohen D.C. Bar No. 989164 Cecilia Aguilera D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email: jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.
org caguilera@fairelectionscenter.org

/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition.or g jeff@southerncoalition.org
/s/ George P. Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392) Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email: george.varghese@wilmerhale.c
om joseph.yu@wilmerhale.com stephanie.lin@wilmerhale.com rebecca.lee@wilmerhale.com rick.ingram@wilmerhale.com

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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1), the undersigned counsel hereby certified that the foregoing Memorandum in Support of Plaintiffs’ Opposition to Proposed Intervenors’ Motion to Intervene contains 3323 words (including headings and footnotes) as measured by Microsoft Word.
/s/ Allison J. Riggs Allison J. Riggs
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CERTIFICATE OF SERVICE I certify that on the 12th day of June, 2020, the foregoing Memorandum in Support for Plaintiffs’ Opposition to Proposed Intervenors’ Motion to Intervene was served upon the parties through the Court’s ECF system.
/s/ Allison J. Riggs Allison J. Riggs
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA,

)

THE LEAGUE OF WOMEN VOTERS )

OF NORTH CAROLINA,

)

DONNA PERMAR, JOHN P. CLARK, )

MARGARET B. CATES,

)

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,

)

KEN RAYMOND, 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, DAVID C. BLACK, )

in his 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, THE NORTH

)

CAROLINA DEPARTMENT OF

)

1:20CV457

Case 1:20-cv-00457-WO-JLW Document 26 Filed 06/15/20 Page 1 of 6

TRANSPORTATION, J. ERIC

)

BOYETTE, in his official

)

capacity as TRANSPORTATION )

SECRETARY, THE NORTH

)

CAROLINA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, )

and MANDY COHEN, in her

)

official capacity as

)

SECRETARY OF HEALTH AND

)

HUMAN SERVICES,

)

)

Defendants.

)

ORDER

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, (together, “Proposed Intervenors”) move to

intervene on behalf of the General Assembly under Federal Rule

of Civil Procedure 24. (Doc. 16.) The parties responded, (Docs.

23, 24), and this matter is now ripe for ruling. The court will

grant Proposed Intervenors’ motion for permissive intervention

under Federal Rule of Civil Procedure 24(b).

Rule 24 provides two avenues for intervention: intervention

as of right pursuant to Rule 24(a)(2), and permissive

intervention pursuant to Rule 24(b). Fed R. Civ. P. 24(a)(2),

(b). If intervention as of right is not warranted, a court may

still allow an applicant to intervene permissively under Rule

24(b). Id.

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Under Rule 24(b), the court may permit anyone who “has a claim or defense that shares with the main action a common question of law or fact” to intervene on timely motion. Fed. R. Civ. P. 24(b)(1)(B). “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.” Fed. R. Civ. P. 24(b)(3). Where a movant seeks permissive intervention as a defendant, the movant must therefore satisfy three requirements: (1) the motion is timely; (2) the defenses or counterclaims have a question of law or fact in common with the main action; and (3) intervention will not result in undue delay or prejudice to the existing parties. See League of Women Voters of Va. v. Va. State Bd. of Elections, Case No. 6:20-CV00024, 2020 WL 2090679, at *3 (W.D. Va. Apr. 30, 2020); Carcano v. McCrory, 315 F.R.D. 176, 178 (M.D.N.C. 2016).
The Fourth Circuit has held that “liberal intervention is desirable to dispose of as much of a controversy involving as many apparently concerned persons as is compatible with efficiency and due process.” Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (internal quotation marks omitted); see also Friend v. REMAC Am., Inc., No. 3:12–CV–17, 2014 WL 2440438, at *1 (N.D. W. Va. May 30, 2014) (analyzing motion to intervene “in the context of the Fourth Circuit's policy favoring ‘liberal
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intervention’ and preventing the ‘problem of absent interested parties’” (quoting Feller, 802 F.2d at 729)). Further, the decision to grant or deny permissive intervention “lies within the sound discretion of the trial court.” Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (quoting Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982)).
The court finds that Proposed Intervenors meet the standards for permissive intervention. First, the court finds that the Proposed Intervenors’ motion was timely, which Plaintiffs do not dispute, (see Doc. 24 at 5).1 Proposed Intervenors filed their motion five days after Plaintiffs filed their motion for preliminary relief, before the original Defendants submitted any filings of their own. See Carcano, 315 F.R.D. at 178 (finding the intervenors’ motion timely when it was filed nine days after the plaintiffs filed their motion for preliminary injunction and before the defendants had filed any documents). The first element is thus satisfied.
Second, it is undisputed that Proposed Intervenors’ defenses in their proposed answer, (Doc. 16-1 at 33), share common questions of law and fact with the main action in this case; that is, the legality of North Carolina’s election laws.
1 Defendants “neither consent nor object” to permissive intervention.
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See N.C. State Conference of NAACP v. Cooper, 332 F.R.D. 161, 172 (2019) (agreeing that the proposed intervenors’ proposed answer included “defenses which present common issues of fact and law”).
Finally, the court finds that allowing Proposed Intervenors to intervene will not result in undue delay or prejudice to the parties. The court will require Proposed Intervenors adhere to the briefing schedule set out in the June 10, 2020 Text Order, and will address any issues concerning potential discovery requests in a timely fashion. Further, Proposed Intervenors’ defenses largely overlap with the legal and factual issues that are already present in this action, therefore the addition of Proposed Intervenors is not likely to significantly complicate the proceedings or unduly expand the scope of discovery should discovery be necessary.
Because the court is satisfied that permissive intervention is warranted here, the court declines to conduct an analysis under Rule 24(a)(2).
Plaintiffs have requested that the court limit the General Assembly’s ability to take discovery. (Doc. 24 at 18–19 n.1.) The court is not aware of any party to this case participating in discovery at the present time, see LR 26.1, but the court
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will not impose limits on discovery as to the Intervenors without full consideration of the potential issues.
IT IS THEREFORE ORDERED that Proposed Intervenors’ Motion to Intervene, (Doc. 16), is GRANTED.
IT IS FURTHER ORDERED that Proposed Intervenors shall adhere to the briefing schedule as directed by the court on June 10, 2020. (Text Order 06/10/2020.)
This the 15th day of June, 2020. __________________________________ United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs, vs.

Civil Action No. 20-cv-457

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants,

PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; TIMOTHY K. MOORE, in
1

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his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
Defendant-Intervenors.
SECOND AMENDED COMPLAINT Plaintiffs Democracy North Carolina, the League of Women Voters of North Carolina (together with Democracy North Carolina, the “Organizational Plaintiffs”), and Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Walter Hutchins, and Susan Schaffer, individuals (“Individual Plaintiffs,” together with the Organizational Plaintiffs, the “Plaintiffs”), bring this civil rights action under 42 U.S.C. § 1983, the First and Fourteenth Amendments, Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, for preliminary and permanent declaratory and injunctive relief against the Defendants 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; Ken Raymond, Jeff Carmon III, and David C. Black, all in their official capacities as Members of the State Board of Elections; Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections (together the “SBE Defendants”); Defendants the North Carolina Department of Transportation and J. Eric Boyette, in his official capacity as Secretary of the Department of Transportation (the “DOT Defendants”); and Defendants the North Carolina Department of Health and Human Services and Dr. Mandy Cohen, in
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her official capacity as Secretary of Health and Human Services (the “DHHS Defendants”). Plaintiffs allege as follows:
NATURE OF ACTION 1. The COVID-19 pandemic presents an unprecedented challenge to our nation. Caused by a novel coronavirus and transmitted by asymptomatic, otherwise-healthy individuals as well as the symptomatic, this disease threatens the health of millions of Americans, especially elderly people and those with pre-existing medical conditions. As infection and death rates continue to climb, the fallout from COVID-19 has severely strained health care systems, the economy, and all levels and branches of government. 2. This public health crisis has also endangered the machinery of our democracy by threatening massive disruptions in election administration, especially in a presidential election year that was on track for exceptionally high registration rates and turnout. Many states have already taken drastic measures to counteract the spread of COVID-19 and ensure that eligible voters can cast their ballots safely. North Carolina, however, has failed to adequately address these issues, and the recently enacted changes fall far short of what is required in order to allow for safe and accessible voting. As a result, millions of North Carolinians will likely either lose their right to vote or be forced to compromise their health in order to access the franchise. 3. At present, North Carolina’s election code imposes numerous restrictions— on voter registration, mail-in absentee ballots, in-person early voting, and Election Day administration—that, in light of the COVID-19 pandemic, unduly burden Plaintiffs’ right to vote in violation of the First and Fourteenth Amendments. With respect to voter
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registration, the pandemic has already caused registration rates to plummet in comparison with previous election years. North Carolina election code and registration practices can be altered to address the voter registration crisis with reasonable accommodations that make registering to vote easier and safer during this public health crisis. For example, North Carolina law requires voters to submit their registration applications at least 25 days prior to the election, or else, register in-person at an early voting site, therefore potentially exposing themselves or their families to infection via COVID-19. By preventing voters from registering in the three weeks leading up to the election, the 25-day registration requirement unconstitutionally burdens the right to vote. Voters cannot be required by their government to choose between registering to vote and preserving their health. Likewise, online voter registration opportunities could be easily expanded to allow voters to register to vote from the safety of their home.
4. Several aspects of North Carolina’s cumbersome absentee vote-by-mail regime are unconstitutional because they will require Plaintiffs to risk exposure to COVID19 and to violate public health social distancing requirements in order to successfully vote by mail. For example, North Carolina requires mail-in absentee voters to complete the ballot in the presence of one witness or a notary. To comply, voters like Plaintiff Lelia Bentley will need to expose themselves to individuals outside of their household, thereby risking their health. The witness requirement thus creates a severe and unjustified burden on the right to vote of people like Plaintiff Bentley.
5. Finally, certain restrictions on the administration of in-person voting, both during the one-stop absentee voting period (known more commonly as “early voting” and
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so identified hereinafter) and on Election Day, will produce unsafe conditions for voters. For example, North Carolina requires each county to maintain uniform hours across all early voting sites, regardless of the capacity and demand at each site. This statutory requirement, recently added in June 2018, resulted in a significant reduction in early voting sites in the 2018 general election by inflating costs through the addition of unnecessary hours. This will likewise result in reduced sites and days for early voting in the upcoming 2020 general election because counties will have to close numerous early voting sites to comply with the law and still stay within their budgets. On Election Day, moreover, all poll workers must reside in the county where they serve, with at least one poll worker from the precinct. This “home-county” requirement will exacerbate shortages of poll workers and lead to precinct consolidation. Both the uniform-hours requirement for early voting sites and the home-county requirement for Election Day poll workers will produce unsafe conditions by reducing the number of sites in which voters can cast an in-person vote, which will, in turn, result in long lines and large crowds, as seen in the recent Wisconsin and Georgia primary elections. Further, it is not possible for a state like North Carolina— where historically, the vast majority of voters choose to cast their ballot in person—to shift entirely to vote-by-mail methods in mere months. North Carolina simply lacks the infrastructure necessary to conduct an election predominantly by mail without overwhelming both county election administration systems and the local U.S. Postal Service infrastructure. Immediate steps must be taken to ensure that in-person voting opportunities are preserved and conducted in accordance with public health guidance.
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6. In short, with its high transmission and mortality rates, COVID-19 poses a risk to all voters, especially those who could develop severe complications like some of the Individual Plaintiffs. The pandemic has already decimated voter registration rates and third-party voter registration initiatives, and makes it impossible for voters to comply safely with certain requirements for mail-in absentee voting, including the witness or notary requirement. In addition, election officials anticipate severe shortages of poll workers, who justifiably fear contracting the disease, resulting in fewer polling sites. A number of states’ election officials, including in North Carolina, have already felt compelled to postpone primary and other elections by weeks or months in the face of this unprecedented public health emergency.
7. As of the filing of this complaint, Defendants have failed to implement adequate election-related measures to mitigate the impact of the COVID-19 crisis on North Carolina’s upcoming general election and safeguard the voting rights of countless eligible North Carolina voters. The recently-enacted amendments in House Bill 1169 (“HB 1169”)1 are entirely inadequate to address the constitutional violations implicated in this lawsuit. Under HB 1169, North Carolina still requires at least one witness or a notary, still requires poll workers to reside within the county, and does not provide any way for individuals to request an absentee ballot via phone. HB 1169 §§ 1(a), 1(b), 2(a). It fails entirely to address voter registration, the uniform hours requirement, the restrictions on organizations like the
1 See 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, S.L. 2020-17 (June 15, 2020).
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Organizational Plaintiffs to assist voters with requesting absentee ballots, or the restrictions on how absentee ballots may be delivered. Accordingly, the current electoral structure in place imposes an undue burden and an unconstitutional condition on the right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution and a violation of procedural due process. In addition, the State’s failure to accommodate the needs of high-risk voters and others violates the ADA and the Rehabilitation Act.
8. Judicial intervention is warranted now, in advance of the 2020 general election, to ensure that the State has adequate time to implement the measures necessary to ensure that the right to vote may be exercised safely during this global pandemic. North Carolina law sets forth an inflexible calendar of pre-election administrative steps and milestones. For example, mail-in absentee ballots, their container-return envelopes with witness certification and signature block, and instruction sheets must be available for use 60 days in advance of a statewide general election and 50 days in advance of all other elections, which in this case would be September 4, 2020. See N.C. Gen. Stat. §§ 163227.10(a), 163-229(b), 163-229(c). This means that all the text and design for mail-in absentee ballots must be finalized well in advance of the 60th or 50th day before an election such that these materials can be timely printed, delivered, and distributed to voters. Moreover, in “emphasiz[ing] that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the Supreme Court has suggested that challenges to a state’s election administration should be brought as soon as possible. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).
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9. Election administration plans for the June 23, 2020 Republican second primary in Congressional District 112 have unfortunately been irreversibly set in motion. But it is not too late to safeguard the right to vote in November’s general election, when the pandemic is expected to resurge and once again threaten the functioning of our democracy.
JURISDICTION AND VENUE 10. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the U.S. Constitution and the laws of the United States and seeks equitable and other relief for the deprivation of constitutional and federal statutory rights under color of state law. 11. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920. 12. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 13. Venue is appropriate in the Middle District of North Carolina, under 28 U.S.C. § 1391(b)(1).
2 N.C. State Bd. of Elections, Emergency Exec. Order (Mar. 20, 2020), https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/Orders/Executive% 20Director%20Orders/Order_2020-03-20%20.pdf (rescheduling the Republican second primary in Congressional District 11 from May 12, 2020, to June 23, 2020).
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PARTIES Plaintiffs
14. Plaintiff Democracy North Carolina (“Democracy NC”) is a nonpartisan, nonprofit organization dedicated to increasing voter access and participation and reducing the corrupting role of money in politics through research, organizing, and advocacy. Democracy NC’s volunteers, who are registered North Carolina voters across every region of the state, form grassroots coalitions and are advocates in communities throughout the state, including Wake County, Edgecombe and Nash Counties (the “Twin Counties”), Alamance County, Mecklenburg County, Fayetteville, Wilmington, Winston-Salem, Asheville, New Bern, Salisbury and Greenville. Democracy NC works for pro-democracy reforms that strengthen the enforcement of election laws, protect voting rights, and improve government accountability and ethics. Democracy NC engages in substantial election protection efforts to ensure that voters are able to access the ballot, and spends substantial time and effort producing voter guides to educate voters about the candidates that will be on their ballots. Democracy NC advocates spend thousands of hours fighting for more early voting sites and times to ensure that all voters have easy access to the franchise. In previous elections, Democracy NC has also run rides-to-the-polls programs to ensure that voters who lacked transportation and could not or did not want to use mail-in absentee voting could nonetheless cast a ballot. Through original research, policy advocacy, grassroots organizing, civic engagement, and leadership training, Democracy NC seeks to achieve a fair and representative political system and advance a just and equitable North Carolina.
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15. Plaintiff the League of Women Voters of North Carolina (“LWVNC”) is a nonpartisan community-based organization, formed in 1920, immediately after the enactment of the Nineteenth Amendment to the U.S. Constitution granting women's suffrage. The LWVNC is dedicated to encouraging its members and the people of North Carolina to exercise their right to vote as protected by the U.S. Constitution and the Voting Rights Act of 1965. The LWVNC’s mission is to promote political responsibility through informed and active participation in government and to act on selected governmental issues. The LWVNC impacts public policies, promotes citizen education, and makes democracy work by, among other things, removing unnecessary barriers to full participation in the electoral process. Currently the LWVNC has 17 local leagues and over 1,912 members, each of whom, on information and belief, is a registered voter in North Carolina. The LWVNC is affiliated with the League of Women Voters of the United States, which was also founded in 1920. The LWVNC began as an organization focused on training women voters, and has evolved into an organization concerned with educating, advocating for, and empowering all North Carolinians. With members in almost every county in the state, the LWVNC’s local leagues are engaged in numerous activities, including hosting public forums and open discussions on important issues to the community. Individual League members invest substantial time and effort in voter training and civic engagement activities, such as voter registration assistance and get-out-the-vote (GOTV) efforts leading up to elections, including during the early voting period. The LWVNC has developed a First Time Voter Engagement Program, which partners with local election boards and schools to encourage young voters to register to vote. The
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LWVNC also devotes substantial time and effort to ensuring that government at every level works as effectively and as fairly as possible in implementing voting regulations and procedures. To do so, the LWVNC advocates to make elections more transparent, to support a strong and diverse judiciary, and to urge for appropriate government oversight.
16. Plaintiff Donna Permar is a U.S. Citizen and a Durham County resident who is completely blind and lives with her spouse who is also completely blind. Ms. Permar is a registered voter who is eligible to vote in the November 2020 general election. Ms. Permar only feels confident voting in-person and thus relies on polling places being open and accessible by public transportation. Ms. Permar must utilize an ADA-compliant machine in order to vote, because she cannot fill out an absentee ballot with confidence or privacy.
17. Plaintiff John P. Clark is a U.S. citizen and a resident of the town of Apex in Wake County, North Carolina. He is 79 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. He has severe chronic obstructive pulmonary disease (“COPD”) and has lived with this disease, which severely limits his activities, for the last 12 years. Whenever he is active at all, walking around or working in the yard, he carries an oxygen tank. He can walk only two blocks, even with oxygen. He has also become more susceptible to exacerbated bouts of pneumonia, contracting it about four times in the last six years. The most recent episode was in January 2020, which has caused a further deterioration of his respiratory condition. COPD makes him more vulnerable to severe complications or even death from COVID-19 and, therefore, it is too high a risk for him to vote in person. It is a necessity that he vote by absentee ballot
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in the November general election. To avoid any risk of contracting COVID-19, Mr. Clark has been quarantined along with his wife for approximately the last eight weeks. He lives with his wife, and the only people who have entered their house during the lockdown have been three service people whom he completely avoids. He and his wife never leave their property except for necessary medical appointments, short walks, and occasional drives including a weekly trip to the grocery store, during which Mr. Clark stays in the vehicle. He has voted in every presidential election since 1968, and votes regularly in state and local elections. He wants to vote in the November 2020 general election and has already applied for his mail-in absentee ballot.
18. Margaret B. Cates is a U.S. citizen and a resident of the Town of Faison in Duplin County, North Carolina. She is 85 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. She lives alone and has had chronic fatigue syndrome for the last 27 years since 1993. This is a severely debilitating disease and has severely curtailed Ms. Cates’ ability to move about and be active. Today, she is in poor health, having suffered several falls recently and a urinary tract infection that she has been fighting for a year. As a result, she has been weak, using a walker in the house, and bedridden for twelve hours at night and for two in the afternoon. Ms. Cates has not left her house in three months, except to go to a doctor's appointment right before March and before the social distancing guidelines were put in place. She has voted in every presidential election since 1956, and also votes in many state and local elections. She wants to vote in the November 2020 general election, and she has never voted by mail. Voting in person is not an option for her, as it would pose too much of a risk to her health.
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19. Lelia Bentley is a U.S. Citizen and a 62-year-old registered voter in Wilkesboro who lives on her own. She has been diagnosed with hypertension, which she controls through diet, exercise, and meditation. About once a year, Ms. Bentley develops a cold, which often progresses to include symptoms like sinus and chest congestion, a hacking cough, and shortness of breath. As a result of her medical history, she has been self-isolating at her home since March 10. Consistent with the Governor's stay-at-home order, she does not leave her home unless absolutely necessary. Since March 15, if she has needed groceries, she has ordered them online and had them delivered. Ms. Bentley does not know if she can satisfy the witness requirement in order to request and cast an absentee mail-in ballot. She has observed some of her neighbors breaking social distancing guidelines, including hosting social gatherings in their homes. Other neighbors are themselves self-isolating in order to protect elderly family members and she worries that, even if they would agree to be her witness, she could accidentally expose them to the virus, in spite of the precautions she has been taking. She does not know if her remaining neighbors have been taking appropriate precautions to prevent contracting the novel coronavirus, and therefore does not feel safe asking them to be witnesses. Even if she can obtain a witness, she does not know if she will risk contact with them in order to vote because she fears that it will lead her to contract COVID-19. Ms. Bentley will not vote in person because that would be too much of a risk to her health. She does not know what she will do if she cannot vote by mail.
20. Regina Whitney Edwards is a U.S. citizen and resident of Durham County. She is 30 years old and a registered North Carolina voter who is eligible to vote in the
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November 2020 general election. She is at high risk of developing severe illness from COVID-19 because she has a serious pre-existing medical condition, type 1 diabetes. She has had type 1 diabetes for 21 years. To protect her health from the impact of COVID-19, she has remained at home since mid-March and has not seen another person except her partner, whom she lives with. She is uncomfortable leaving her home or being in proximity to people other than her partner. She has voted in multiple elections in North Carolina. But for the threat of COVID-19, she would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, she is not willing to vote in person during the November 2020 general election, and instead would like to vote by mail-in absentee ballot to protect her health.
21. Robert K. Priddy II is a U.S. citizen and a resident of Brunswick County. He is a 70-year-old registered North Carolina voter who is eligible to vote in the November 2020 general election. He is at high risk of developing severe illness from the novel coronavirus because he has several serious pre-existing health conditions, and because of his age. In 2010, he received a kidney transplant. To ensure that his body does not reject the transplant, he takes medication that suppresses his immune system. The medication also causes borderline diabetic issues, so he receives treatment for diabetes. To protect his health, Mr. Priddy’s doctor has advised him to stay home and avoid contact with people outside his household. He has remained at home since mid-March. He relies on his wife to shop for groceries and run other errands. The only time he has gone outside since midMarch was to pick up prescriptions from a drive-thru pharmacy, during which he remained in his vehicle without interacting directly with the pharmacist. He is uncomfortable leaving
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his home or being in close proximity to people other than his wife. He has voted in numerous elections in North Carolina. But for the threat of COVID-19, he would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, he is not willing to vote in person in the November 2020 general election. He would like to vote by mail-in absentee ballot.
22. Walter Hutchins is a U.S. citizen and a resident of Wilmington County. He is a 91-year-old registered North Carolina voter who is eligible to vote in the November 2020 general election. He is legally blind and lives in a nursing home. Due to his age, he is at very high risk of developing severe illness from COVID-19. To keep residents safe, the nursing home where he lives has been under lockdown since mid-March. No visitors, including family members, are allowed. Mr. Hutchins has voted in numerous elections in North Carolina. His wife, who does not live at the nursing home, has helped him fill out his ballot in previous elections. However, because of the lockdown and the COVID-19 pandemic, he has not seen her since mid-March and is uncertain whether she will be able to help him with filling out his ballot in the upcoming November election. He has only voted in-person for elections, and thus is unfamiliar with the absentee ballot process. The nursing home does not have procedures set up to assist voters who are blind. Furthermore, under North Carolina law, the nursing home staff cannot assist Walt fill out or submit an absentee ballot. He would like to vote in the upcoming election by mail, but is unable to request an absentee ballot through the mail because he is legally blind, and would like to do so by phone. Although he strongly wishes to vote in the November election, he is not
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sure how he will be able to if the restrictions on requesting absentee ballots and restrictions on nursing home assistance in filling out and submitting absentee ballots remain in effect.
23. Susan Schaffer is a U.S. citizen and a Durham County resident who volunteers in her community assisting eligible people with registering to vote, requesting absentee ballots, as well as completing their absentee ballots. In the past, Mrs. Schaffer has assisted voters at assisted living facilities and other locations that are now prohibited spaces for people seeking to assist voters with their absentee ballot request forms if they are not a near relative or a member of a multi-partisan assistance team (“MAT”). Mrs. Schaffer serves as an intermediary for many voters who are not familiar with the absentee ballot process or who otherwise are not eligible for assistance under the current state of the law as created by Senate Bill 683. Thus, these prohibitions severely burden the right to vote of all of the voters that Mrs. Schaffer would otherwise be able to assist and prevent her from providing that assistance as a volunteer for an organization that has among its core missions helping voters gain access to the ballot box, thereby impairing her fundamental First Amendment right of association and right to free speech. Defendants
24. Defendant North Carolina State Board of Elections is the agency responsible for the administration of the election laws of the State of North Carolina.
25. Defendant Damon Circosta is the Chair of the North Carolina State Board of Elections. Mr. Circosta is sued in his official capacity.
26. Stella Anderson is the Secretary of the North Carolina State Board of Elections. Ms. Anderson is sued in her official capacity.
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27. Ken Raymond is a Member of the North Carolina State Board of Elections. Mr. Raymond is sued in his official capacity.
28. Jeff Carmon III is a Member of the North Carolina State Board of Elections. Mr. Carmon is sued in his official capacity.
29. David C. Black is a Member of the North Carolina State Board of Elections. Mr. Black is sued in his official capacity.
30. Defendant Karen Brinson Bell is the Executive Director of the North Carolina State Board of Elections. Ms. Brinson is sued in her official capacity.
31. The North Carolina Department of Transportation is the agency that implements the online voter registration system in the State of North Carolina.
32. J. Eric Boyette is the Secretary of the North Carolina Department of Transportation. Mr. Boyette is sued in his official capacity.
33. The North Carolina Department of Health and Human Services is the agency that administers online public benefits renewal in the State of North Carolina.
34. Dr. Mandy Cohen is the Secretary of the North Carolina Department of Health and Human Services. Dr. Cohen is sued in her official capacity. Defendant-Intervenors
35. Philip E. Berger is the President Pro Tempore of the North Carolina Senate. Mr. Berger was joined as a defendant-intervenor in his official capacity by order of the Court. Order, ECF No. 26.
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36. Timothy K. Moore is the Speaker of the North Carolina House of

Representatives. Mr. Moore was joined as a defendant-intervenor in his official capacity

by order of the Court. Order, ECF No. 26.

STATEMENT OF FACTS

I.

The COVID-19 Pandemic

A. COVID-19

37. In December 2019, health officials in mainland China detected a novel

coronavirus, SARS-CoV-2, which causes a disease known as COVID-19. On January 30,

2020, the World Health Organization (“WHO”) declared COVID-19 to be a Public Health

Emergency of International Concern. On March 11, 2020, the WHO declared that it had

become a pandemic. COVID-19 has now spread throughout the world, including to every

state in the United States and to every county in North Carolina.

38. The novel coronavirus that causes COVID-19 continues to spread at an

unprecedented pace around the world and within the United States. As of June 17, 2020,

there were 2,132,321 confirmed cases in the United States, and there have been 116,862

deaths nationwide.3 As of June 17, 2020, the North Carolina Department of Health and

3 Coronavirus Disease 2019 (COVID-19), Cases in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated June 17, 2020).
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Human Services had confirmed 46,855 positive cases of coronavirus and 1,168 deaths in North Carolina.4
39. COVID-19 appears to be much more contagious than other respiratory illnesses, such as influenza, SARS, or MERS, in significant part because of its capacity for asymptomatic transmission, and substantially more lethal than influenza.
40. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are at higher risk of severe complications and death from COVID-19 if they are 65 years old or older or have underlying health conditions and diseases, including chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity (body mass index (“BMI”) of 40 or higher), diabetes, chronic kidney disease undergoing dialysis, liver disease, and other health conditions that suppress immune systems like HIV/AIDS.5 The CDC’s website, relying upon research from the National Center for Immunization and Respiratory Diseases (“NCIRD”), Division of Viral Diseases, notes that immunocompromised individuals are at severe risk from COVID-19: “Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone
4 COVID-19 Response, COVID-19 North Carolina Dashboard, NCDHHS, https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count (last updated June 17, 2020, at 12:00pm). 5 Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-athigher-risk.html (last updated May 14, 2020).
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marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS,
and prolonged use of corticosteroids and other immune weakening medications.”6
41. Severe COVID-19 cases can cause a wide variety of secondary infections
and pathologies, including but not limited to: pneumonia, acute respiratory distress
syndrome, kidney failure, liver failure, strokes, heart attacks, cardiac inflammation, and
gastrointestinal infections, among others.7 Furthermore, everyone is at some risk of severe
complications and death from COVID-19, as health officials have recently associated
COVID-19 with pulmonary embolism and stroke in younger patients without known risk
factors8 and subsequent inflammatory disease in young children.9 In critical cases, some
patients need to be intubated and put on a ventilator. Many critical care patients ultimately
die. There is also evidence that individuals of color are dying of COVID-19 at a higher rate
than other demographic groups.10
6 Id. 7 Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious rampage through the body, from brain to toes, SCIENCE (Apr. 17, 2020), https://www.sciencemag.org/news/2020/04/how-does-coronavirus-kill-clinicians-traceferocious-rampage-through-body-brain-toes. 8 Robert Glatter, M.D., Why is COVID-19 Coronavirus Causing Strokes in Young And Middle-Aged People?, FORBES (Apr. 27, 2020), https://www.forbes.com/sites/robertglatter/2020/04/27/why-is-covid-19-coronaviruscausing-strokes-in-young-and-middle-aged-people/#598e78fe34df. 9 Pam Belluck, New Inflammatory Condition in Children Probably Linked to Coronavirus, Study Finds, N. Y. TIMES (May 13, 2020), https://www.nytimes.com/2020/05/13/health/coronavirus-children-kawasaki-pmis.html. 10 Shelby Lin Erdman, Black Communities Account for Disproportionate Number of Covid-19 Deaths in the US, study finds, CNN (May 6, 2020), https://www.cnn.com/2020/05/05/health/coronavirus-african-americans-study/index.html.
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42. The CDC has warned that asymptomatic COVID-19-positive individuals can transmit the disease to others.11 Studies have confirmed this.12 As a result, individuals can spread the disease for a week or more before realizing they are infected, facilitating rapid contagion. Currently, there are no therapeutic treatments or vaccinations that have been shown to significantly alter the trajectory of the COVID-19 outbreak. Leading epidemiology experts anticipate that the pandemic will continue into fall and winter of 2020, and potentially well into 2021.
B. North Carolina’s Response to COVID-19 43. In North Carolina, Governor Cooper declared a State of Emergency on March 10, 2020, which remains in effect as of the date of this filing. Within a week thereafter, the Governor imposed social distancing guidelines for individuals and businesses, closed public schools, and prohibited mass gatherings. 44. Governor Cooper has announced a three-phase plan to slowly ease restrictions in North Carolina that will depend on whether North Carolina has successfully met key metrics regarding infection in the state.13 On May 5, 2020, Governor Cooper
11 Coronavirus 2019 (COVID-19), Prevent Getting Sick: How COVID-19 Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated Apr. 13, 2020). 12 Mary Van Beusekom, Studies profile lung changes in asymptomatic COVID-19, viral loads in patient samples, CTR. FOR INFECTIONS DISEASE RESEARCH & POL’Y, UNIV. OF MINN. (Feb. 25, 2020), http://www.cidrap.umn.edu/news-perspective/2020/02/studiesprofile-lung-changes-asymptomatic-covid-19-viral-loads-patient. 13 Press Release, North Carolina Office of the Governor, Governor Extends Stay At Home Order Through May 8, Plans Three Phase Lifting of Restrictions Based on Virus Trends
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issued an executive order modifying North Carolina’s stay at home order and transitioning the state to “Phase 1” of slowly easing certain COVID-19 restrictions.14 This order advised North Carolinians to maintain six-feet social distancing from non-family or household members and encouraged high risk individuals to stay home and travel only for “absolutely essential purposes.”15 On May 20, 2020, the Governor issued an order moving North Carolina into “Phase 2” and superseding the Phase 1 order.16 The Phase 2 Order notes that “the risk of contracting and transmitting COVID-19 is higher in settings that are indoors, where air does not circulate freely and where people are less likely to maintain social distancing by staying six (6) feet apart,” and “very strongly encourage[s]” individuals at high risk of severe illness, including those 65 years or older and with underlying medical conditions, to stay home and travel only for “absolutely essential purposes.”17 It maintains the prior guidance that individuals maintain at least six feet of social distancing from other individuals, and requires businesses to limit occupancy and take other measures promoting social distancing. It also encourages individuals, including restaurant workers and personal
(Apr. 23, 2020), https://governor.nc.gov/news/governor-extends-stay-home-orderthrough-may-8-plans-three-phase-lifting-restrictions-based. 14 Governor Roy Cooper, Exec. Order No. 138 (May 5, 2020), https://files.nc.gov/governor/documents/files/EO138-Phase-1.pdf. 15 Id. 16 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf. 17 Id.
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care patrons, to wear face coverings. Mass gatherings of more than 10 people indoors and 25 people outdoors remain prohibited.18
45. The Governor has also issued an executive order allowing non-profit corporations incorporated under the laws of the State of North Carolina to vote on matters by electronic balloting to “prevent members and directors from having to gather in a place, and thereby to promote social distancing and the mitigation of the spread of COVID-19.”19
46. The DHHS Defendants similarly recommend that individuals “put distance between yourself and other people” and advise, “[t]he very best evidence on reducing the spread is to maintain social distance and stay at home.”20
47. These measures are far from temporary and similar measures will likely be required for the remainder of 2020. Governor Cooper’s current Phase 2 executive order notes that “it may be necessary to reinstate certain restrictions eased by this Executive Order,”21 and, in any event, even the final “Phase 3” guidelines encourage social distancing and minimizing exposure, and any spike in infections may require tightening restrictions again.22
18 Id. 19 Governor Roy Cooper, Exec. Order. No. 136 (Apr. 24, 2020), https://files.nc.gov/governor/documents/files/EO136-Nonprofit-Corp.pdf. 20 COVID-19 Response, Individuals and Families, NCDHHS, https://www.ncdhhs.gov/divisions/public-health/covid19/individuals-and-families (last accessed May 19, 2020). 21 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf. 22 Id.
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48. Epidemiologists and infectious disease specialists have already concluded that there will very likely be a COVID-19 resurgence in the United States this fall. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said a second wave of infections in the United States is “inevitable.”23 South Korea, Germany, and China are already seeing a resurgence of COVID-19 after loosening restrictions in response to declining new COVID-19 cases. Pointing to the spread of COVID-19 cases in southern hemisphere countries as those regions enter their winter seasons, Dr. Fauci remarked, “And if, in fact, they have a substantial outbreak, it will be inevitable that we need to be prepared that we’ll get a cycle around the second time.”24 He concluded, “[W]e really need to be prepared for another cycle.”25 Furthermore, experts from the Harvard T.H. Chan School of Public Health’s Center for Communicable Disease Dynamics warned that, to avoid exceeding hospital critical care capacities, prolonged or intermittent social distancing may be necessary into 2022.26
23 Miriam Berger et al., Drug trial shows modest benefits in treating coronavirus, Fauci says, WASH. POST (Apr. 20, 2020), https://www.washingtonpost.com/world/2020/04/29/coronavirus-latest-news/; see also Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, WHITE HOUSE (Mar. 25, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-briefing-11/. 24 Id. 25 Id. 26 Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period, SCIENCE (Apr. 14, 2020), https://science.sciencemag.org/content/early/2020/04/24/science.abb5793.
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C. Inadequacies in North Carolina’s Administration of the Upcoming 2020 General Election in Light of the COVID-19 Pandemic
49. The general election for all federal offices, including the presidential election, will be held on November 3, 2020. COVID-19 will have an unprecedented impact on this upcoming election. Even before the COVID-19 pandemic, the Brookings Institution predicted that “turnout in 2020 could break all records and test our election machinery as it has never been tested before.”27 Other experts also anticipate record-breaking turnout in the 2020 presidential election.28
50. North Carolina’s election laws and procedures are not designed to facilitate safe, fair, and free elections during such a public health crisis, and the legislature has failed to take action to remedy this situation. Given the rapidly spreading infection, North Carolina’s current election laws will force voters to choose between exposing themselves to severe risks to their health and exercising their constitutionally-protected right to vote.
27 William A. Galston, What does high voter turnout tell us about the 2020 elections?, BROOKINGS INST. (Nov. 20, 2019), https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-high-voter-turnout-tell-usabout-the-2020-elections/. 28 See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. NEWS & WORLD REPORT (Sept. 20, 2019), https://www.usnews.com/news/elections/articles/2019-09-20/expertspredict-huge-turnout-in-2020; Nate Cohn, Huge Turnout Is Expected in 2020. So Which Party Would Benefit?, N.Y. TIMES (July 15, 2019), https://www.nytimes.com/2019/07/15/upshot/2020-election-turnout-analysis.html; Ronald Brownstein, Brace for a Voter-Turnout Tsunami, THE ATLANTIC (June 13, 2019), https://www.theatlantic.com/politics/archive/2019/06/2020-election-voter-turnout-couldbe-record-breaking/591607/.
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51. The inadequacies of North Carolina’s election laws and procedures to facilitate safe, free, and fair voting during a pandemic have not gone unnoticed by state and county election officials. On March 26, 2020, Defendant Karen Brinson Bell, Executive Director of the North Carolina State Board of Elections, wrote to Governor Cooper and the leadership in North Carolina’s General Assembly requesting statutory changes to address the impact of the COVID-19 pandemic on North Carolina’s upcoming elections.29 Among other recommendations, Defendant Bell requested (i) expanding options for voters to submit mail-in absentee ballot requests beyond the current mail-only option to enable requests by fax, email, and an online portal; (ii) establishing a fund to pay for postage for returned absentee ballots; (iii) reducing or eliminating the requirement that two witnesses sign an absentee mail container envelope in order for the ballot to be counted; (iv) lifting the requirement that a majority of Election Day poll workers reside in the precinct in which they work; and (v) lifting the uniformity requirement for early voting sites, days and hours. In a follow-up letter sent April 22, 2020, Defendant Bell emphasized that changes were required immediately during the April 28 legislative session of the General Assembly in order to be effective for North Carolina’s 2020 elections, including the 2020 general election.30
29 Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1). 30 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2).
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52. On April 27, 2020, dozens of county board of elections officials from eleven counties in North Carolina’s 11th Congressional District similarly issued an “urgent request” of North Carolina’s legislators to protect upcoming elections.31 They warned that regular poll workers were “reluctant to serve” during the pandemic given that a large percentage of them are elderly and at higher risk of severe complications and death from COVID-19. These county officials requested that the legislators eliminate the requirement that a majority of poll workers reside in the precinct in which they serve and instead permit officials to recruit poll workers from anywhere in the entire county.
D. Voter Registration 53. Those eligible to vote in North Carolina can register in person, by mail, or, under some circumstances, online with the Department of Motor Vehicles (“DMV”), a division of Defendant the North Carolina Department of Transportation.32 To register by mail, eligible voters can download a voter registration form from the State Board of Elections website and then print, complete, and sign the form. Voters cannot submit this form electronically and they must mail in the original form with a wet-ink signature to the local county board of elections. See N.C. Gen. Stat. § 163-82.6(c). Voters must also include their drivers license number, non-driver identification card, or last four digits of their Social Security number. See N.C. Gen. Stat. § 163-230.2.
31 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 29, 2020) (Exhibit 3). 32 See Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voters/Registering-to-Vote (last accessed May 20, 2020).
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54. Alternatively, eligible voters who are existing DMV customers with a North Carolina drivers license or DMV-issued ID may register to vote online. See N.C. Gen. Stat. § 163-82.19. Until recently, this option required users to complete a DMV transaction, such as a license renewal or duplicate, at the same time.33 For this registration method, voter registration applications must be submitted at least 25 days before the election in which the voter wishes to cast a ballot.34
55. Eligible voters may also register to vote through certain state agencies such as the Division of Social Services, Division of Public Health/WIC, and Division of Services for the Blind—all divisions of Defendant N.C. Department of Health and Human Services—among others. See N.C. Gen. Stat. §§ 163-82.20 – 82.23.35 Voters may submit forms to state agencies in lieu of mailing the application but must do so at least 25 days before the election in which they wish to vote, see N.C. Gen. Stat. § 163-82.20(g), (h), and may not do so online, even though those agencies, upon information and belief, possess “wet-ink” signatures for those customers.
33 See Press Release, N.C. State Bd. of Elections, State Board, DMV Partner to Expand Online Voter Registration Service (Mar. 30, 2020), https://www.ncsbe.gov/PressReleases?udt_2226_param_detail=2195. 34 See also Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voters/Registering-to-Vote (last visited May 19, 2020) (“Voter registration applications submitted [through the DMV] fewer than 25 days before an election will not be processed until after the election.”) 35 See NVRA Agency Forms, N.C. State Bd. of Elections, https://www.ncsbe.gov/VoterRegistration/NVRA (last accessed May 19, 2020).
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56. Finally, voters may register in person at an early voting site using same-day registration with valid identification.36 This option is available up until the last Saturday before the election. See N.C. Gen. Stat. § 163-227.2(b)
57. The COVID-19 pandemic and resulting stay-at-home orders in North Carolina have significantly hindered third-party voter registration efforts for the 2020 general election. For example, Plaintiff LWVNC has had to cancel and otherwise reduce its in-person voter registration initiatives, which typically comprise a significant portion of its voter registration efforts. Plaintiff Democracy NC has had to cancel its in-person voter education forums where voter registration forms are usually provided. Furthermore, voters’ ability to access the resources needed to register to vote—whether they be printers, postage, and access to a post-office box, state agency, county board of election or the DMV—have also been significantly hindered by the COVID-19 pandemic. As a result, voter registration is significantly lagging this year as compared to previous general election years. While January 2020 showed an approximately 162 percent increase in registrations compared to January 2016 (indicating increased intent to vote in this election cycle), April 2020 showed an approximately 50 percent decrease in voter registrations compared to April 2016.37
36 One-Stop Early Voting; Same-Day Registration, N.C. State Bd. of Elections, https://www.ncsbe.gov/Voting-Options/One-Stop-Early-Voting (last accessed May 20, 2020). 37See N.C. State Bd. of Elections, NVRA Data (2008 to present), https://s3.amazonaws.com/dl.ncsbe.gov/NVRA/nvra_stats_all.txt. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data-Info/ElectionResults-Data and navigating to “FTP Site”  “NVRA”  “NVRA_stats_all.txt”.
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E. Absentee Vote-By-Mail 58. There will be a dramatic increase in the number and proportion of mail-in absentee ballots cast in the upcoming 2020 elections. While North Carolina permits all registered voters to cast an absentee ballot if they choose, see N.C. Gen. Stat. § 163-226(a), recently-enacted restrictions on absentee voting as well as other pre-existing provisions in the North Carolina election code impose undue burdens on voters wishing to cast mail-in absentee ballots in light of the current pandemic, and will force voters to choose whether to exercise their right to vote or protect their health. 59. Wisconsin’s recent election, which was held after its governor declared state of emergency in response to COVID-19, shows that there will likely be an increased use of mail-in ballots in North Carolina. Like North Carolina, Wisconsin does not require an excuse to vote by mail. In its April 7, 2020 spring election, nearly 1.3 million registered Wisconsin voters requested a mail-in ballot,38 the most in the state’s history. Of the 1.6 million voters who cast ballots in the spring election,39 more than 70 percent, that is 1.1 million, voted by mail-in absentee ballot.40 This was a dramatic increase from the
38 Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary, WIS. ELECTIONS COMM’N (Apr. 16, 2020), https://elections.wi.gov/node/6856. 39 Unofficial Spring Election Turnout - 34.3 % - 4/14/2020, WIS. ELECTIONS COMM’N, https://elections.wi.gov/blog (last accessed May 21, 2020). 40 Updated municipal absentee ballot data, WIS. ELECTIONS COMM’N, https://elections.wi.gov/blog (last updated 4/13/20 9:35am).
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percentage of mail-in absentee ballots cast in the 2016 presidential primary election, in which mail-in absentee ballots made up just 11.8 percent of total ballots cast.41
60. Defendant North Carolina State Board of Elections anticipates a similar dramatic increase in mail-in absentee voting in 2020 to 30 to 40 percent,42 and thus needs to prepare for such an increase. As it currently stands, North Carolina’s election code imposes severe burdens to voters who need to cast absentee mail-in ballots, in light of the current pandemic, and to the expected influx of voters wishing to vote by mail for the first time.
1. Senate Bill 683 61. North Carolina law has permitted all eligible citizens to vote by mail in all federal and state elections since 2001. See N.C. Gen. Stat. § 163-226(a). Voters must submit a completed State Absentee Ballot Request Form to their county board of elections in order to receive an absentee ballot. N.C. Gen. Stat. § 163-230.2(a). 62. In November 2019 North Carolina made it significantly more cumbersome for its voters to cast absentee ballots by mail by enacting Senate Bill 683. See An Act to Amend the Laws Governing Mail-In Absentee Ballots (“SB 683”), S.L. 2019-239, § 1 (Nov. 6, 2019).43 Among other provisions, SB 683 imposes restrictions on who can assist
41 Absentee Ballot Requests for April 7 Exceed 1 million - COVID-19, WIS. ELECTIONS COMM’N (Apr. 1, 2020), https://elections.wi.gov/node/6802. 42 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2). 43 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2019239.pdf.
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voters with completing mail-in absentee ballot request forms. See S.B. 683 § 1.3(a) (amending N.C. Gen. Stat. § 163-230.2(e), (e1)). Requests are invalid if “completed partially or in whole, or signed by anyone other than the voter, or the voter’s near relative or verifiable legal guardian.” N.C. Gen. Stat. § 163-230.2(e)(2). Under HB 1169 § 1(c), Members of multi-partisan teams (“MATs”) trained and authorized by county boards of elections may also now assist in completion and delivery of the request, but in certain North Carolina counties, the availability of MATs has been inadequate. Even though HB 1169 requires the DHHS and SBE Defendants to prepare MATs members to assist voters while complying with COVID-19 safety guidelines, see HB 1169 § 2(d), there is no indication of how DHHS and SBE Defendants plan to recruit additional MATs members or compensate for issues of availability of MAT teams. Finally, voters requiring assistance to complete the written request form due to blindness, disability, or inability to read or write may request another person if “there is not a near relative or legal guardian available to assist that voter.” N.C. Gen. Stat. § 163-230.2(e1).
63. There are also restrictions on who may help return a completed absentee ballot request. Under N.C. Gen. Stat. § 163-230.2(c), as amended by HB 1169, the completed request form may only be delivered to the county board of elections by the voter, the voter’s near relative or verifiable legal guardian, or a MAT team member.
64. Unlike for completing an absentee ballot request form, there is no exception in the statute for a voter who needs assistance with returning the request form by reason of their blindness, disability, or inability to read or write. See N.C. Gen. Stat. § 163230.2(e)(4).
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65. There are also no such exceptions to the similar restrictions for marking, completion and submission of mail-in absentee ballots. People, who by reason of their blindness, disability, or inability to read or write, require assistance are still restricted to the voter’s near relative or verifiable legal guardian, or a MAT team member. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6), 163-231(b)(1).
66. By doing so, SB 683 has effectively banned organizations like LWVNC and individuals like Plaintiff Schaffer from assisting voters with requesting absentee ballots. This is especially damaging where, as here, the State Board expects a dramatic increase in voting-by-mail, indicating that many individuals will be seeking to vote by mail for the first time. Without assistance by organizations like LWVNC or individuals like Plaintiff Schaffer, which was available up until SB 683’s passage in late 2019, many of these voters will lack needed assistance to navigating the ballot request process during a time when that assistance is crucial to ensuring individuals can vote safely.
67. SB 683 also narrowed the list of identification voters could submit with their request form to only a North Carolina driver’s license number, special identification card number, or the last four digits of his or her Social Security number. See N.C. Gen. Stat. § 163-230.2(a)(4), (f). There is no provision allowing individuals to submit alternative proof of residency such as those documents provided for under the Help America Vote Act (“HAVA”), i.e., a current utility bill, bank statement, government check, paycheck, or other government document showing the name and address of the voter. Defendant Executive Director Bell requested in her March 26, 2020 letter that North Carolina permit voters to submit this alternative documentation with their absentee request forms, noting that the
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State Board had received “multiple reports from county boards of elections and from voters that, without this option, some voters are no longer able to request an absentee ballot, and that “[a]llowing this option will make it easier for those most at risk of contracting COVID19 to vote absentee by mail.”44
2. Witness Requirement 68. North Carolina’s witness or notary requirement for mail-in absentee voting will also force voters to decide whether to break quarantine or violate social-distancing directives, and thereby risk their own health, in order to successfully cast a ballot this year. Among other requirements, North Carolina election law requires that an individual voting an absentee ballot do so “[i]n the presence of two persons who are at least 18 years of age.” N.C. Gen. Stat. § 163-231(a).45 In HB 1169, the General Assembly reduced this to a onewitness requirement for the 2020 general election. See HB 1169 § 1(a). However, HB 1169 did not modify the language in N.C. Gen. Stat. § 163-229(b)(3) requiring envelopes to leave a space for two persons, and instead only provided that the State Board of Elections “may” prepare envelopes with space of one witness for the upcoming election; it is therefore not clear whether voters will receive envelopes indicating they still need two
44 See Letter from Karen Brinson Bell, Executive Director, to Governor Roy Cooper et. al. (Mar. 26, 2020), https://s3.amazonaws.com/dl.ncsbe.gov/sboe/SBE%20Legislative%20Recommendations _COVID-19.pdf. 45 Other restrictions include prohibiting any candidate for nomination or election from serving as a witness unless the voter is the candidate’s near relative, prohibiting owners, managers, directors, employees of any hospital, clinic, nursing home, or rest home from witnessing for a voter who is a patient or resident, and certain office-holders. See N.C. Gen. Stat. §§ 163-226.3(a)(4) and 163-237(b)(1).
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witnesses in order to successfully vote by absentee mail-in ballot. Id. at § 1(a), 3(a) (setting
forth amendments to 163-229(b)).
69. The only alternative is to obtain the signature of a notary public. Id. However,
during the current pandemic a notary public is not a viable option for many voters because
many businesses are closed and the recent exclusion of absentee ballots from the recent
COVID response bill allowing for electronic notaries. See An Act to Provide Aid to North
Carolinians in Response to the Coronavirus Disease (COVID-19) Crisis, S.L. 2020-3 §
4.1(c) (May 4, 2020).46 Accordingly, even when they do have access to a notary public,
individuals again would have to breach social-distancing measures and leave their home to
have their ballot notarized.
70. North Carolina is one of just twelve states that requires a witness or notary
to observe the voter casting the absentee ballot and then sign the ballot’s certificate
envelope and (until HB 1169’s passage) one of just three states that requires two
witnesses.47 In a time when social distancing is a crucial measure to protect public health,
46 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL20203.pdf (at PDF p. 31) (“Nothing in this section shall apply to any notarization under Article 20 of Chapter 163 of the General Statutes [regarding absentee ballots].”). 47 See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. Ann. § 18:1306(2)(a); Minn. Stat. §§ 203B.07, 203B.121; Minn. R. 8210.2450; Miss. Code Ann. §§ 23-15-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C. Gen. Stat. § 163-231; Okla. Stat. tit. 26, § 14-108; 17 R.I. Gen. Laws § 1720-23; S.C. Code Ann. §§ 7-15-220, 7-15-230; Va. Code Ann. §§ 24.2-706, 24.2707; Wis. Stat. § 6.87(4)(b)1; see also Jay Chaudhury, NC absentee ballots require 2 witnesses. Is that unique?, POLITIFACT (Apr. 23, 2020), https://www.politifact.com/factchecks/2020/apr/23/jay-chaudhuri/nc-absentee-ballotsrequire-2-witnesses-unique/; Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NAT’L CONF. OF STATE LEGIS. (Apr. 14, 2020),
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the witness requirement unconstitutionally forces individuals to choose between voting through an absentee mail-in ballot that will count or protecting their health, and constitutes an insurmountable hurdle for many eligible North Carolina voters seeking to protect their health and the health of their family or co-habitants. Those eligible North Carolina voters under self-quarantine, particularly those at risk of severe complications and death from COVID-19, who live alone or who do not have another adult in their household, will be unable to safely satisfy the state’s witness signature requirement and cast a mail-in absentee ballot. This is no small number: According to the U.S. Census, there are 1,113,548 singlemember households in North Carolina.48 Of those single-member households, 416,121, or 37 percent, are occupied by someone 65 or older.49
71. Plaintiff Bentley is an eligible North Carolina voter who needs to vote by mail-in absentee ballot to safeguard her health and well-being. Ms. Bentley has been diagnosed with hypertension and has a history of developing cold symptoms attacking her lungs, putting her at risk of severe illness from COVID-19. As a result, she has been selfisolating in her home since March 10 to avoid contracting novel coronavirus. Ms. Bentley lives alone and does not have any family nearby and does not feel safe asking her neighbors
https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx (select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”). 48 Table S2501, Occupancy Characteristics, American Community Survey, U.S. CENSUS BUREAU, https://data.census.gov/cedsci/table?q=S2501&g=0400000US37&tid=ACSST5Y2018.S2 501. 49 Id.
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to serve as witnesses because she has observed some breaking the Governor’s stay-at-home order. Other neighbors are themselves self-isolating to protect vulnerable family members, and Ms. Bentley does not know what precautions her remaining neighbors are taking. Accordingly, Plaintiff Bentley has no way to safely comply with the witness requirement and is therefore effectively disenfranchised by N.C. Gen. Stat. § 163-231(a) as amended by HB 1169 § 1(a). Plaintiff Bentley will be forced to choose between exercising her fundamental right to vote or running the risk of contracting and spreading COVID-19 and further worsening the pandemic in North Carolina.
3. Other North Carolina Election Laws and Procedures that Must Be Adjusted to Protect the Right to Vote By Mail During This Public Health Crisis
72. In addition to the restrictions imposed by SB 683 and the witness requirement, North Carolina’s election laws lack crucial mechanisms for guaranteeing that eligible individuals in North Carolina will be able to cast a mail-in absentee ballot that is counted. As pointed out by Defendant Director Bell, North Carolina has no mechanism for requesting absentee ballots by phone, providing only that voters can call by phone to have a blank form sent to them and submit this form in-person, via mail, e-mail, fax, or use a future online portal. See HB 1169 §§ 2(a), 5, 7. Furthermore, HB 1169 does not require the online request portal to be set up until September 1, HB 1169 § 7(d), and thus there is no assurance this option will be available to voters wishing to request an absentee ballot before then.
73. Furthermore, North Carolina voters need a fail-safe for absentee voting to prevent the unlawful denial of the right to vote given North Carolina’s lack of experience
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with the anticipated volume of mail-in absentee ballot requests for the November general election. This is especially critical given the recent evidence out of Wisconsin, Ohio, and Georgia that state and local election officials, as well as the U.S. Postal Service, are failing to deliver thousands of absentee ballots to voters in the mail.50 Those voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day—i.e., within a certain number of days of the election of their request and/or within a certain number of days of the request—will be disenfranchised unless they are permitted to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.51 FWABs are already offered to overseas civilians, who can download them and print them for use, but domestic civilian absentee voters are denied the same option, even when their regular mail-in absentee ballot does not arrive in time or at all.
74. HB 1169’s requirement that every absentee ballot has a tracking code, see HB 1169 § 3(a), is insufficient to provide relief for individuals who wish to vote by mail. The knowledge that their ballots will not arrive on time still results in their inability to cast their ballots by mail.
50 See, e.g., Carrie Levine, Ohio’s Mail-in Ballot Brouhaha: A Sign of Coming Trouble? THE CTR. FOR PUBLIC INTEGRITY (Apr. 28, 2020), https://publicintegrity.org/politics/elections/ohios-mail-in-ballot-brouhaha-a-sign-ofcoming-trouble/; Georgia Primary Blighted by Long Lines and Broken Voting Machines, The Guardian (June 2020), https://www.theguardian.com/us-news/2020/jun/09/georgiaelection-primary-long-lines-broken-voting-machines. 51 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.
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75. Additionally, voters without access to postage and mail pick-up must also violate social-distancing directives and guidelines to submit mail-in absentee ballots. To successfully vote by mail, voters must mail their ballots such that they are postmarked on or before Election Day and delivered no later than 5:00 pm on Election Day, or return their voted ballots to the county board of elections (not a polling location) no later than 5:00 pm on Election Day. However, there is currently no provision in North Carolina law for contactless drop boxes for absentee ballots, which would allow voters to avoid severe delays with the U.S. Postal Service, reduce the overall burden on the U.S. Postal Service, and allow those voters with their own vehicles to submit absentee ballots without requiring contact with anyone to obtain required postage or deliver in-person to the county board of elections.
76. Finally, there is no adequate statewide-mandated procedure in North Carolina for voters to cure deficient absentee ballot requests or the ballots themselves. In the March 2020 North Carolina primary, almost 15 percent of submitted absentee mail-in ballots were rejected.52 This number was even higher for voters of color, with 19 percent of mail-in ballots submitted by black voters rejected and almost 16 percent of mail-in
52 See N.C. State Bd. of Elections, March 3, 2020 Absentee File, https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_03_03/absentee_20200303.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2020_03_03”  “absentee_20200303.zip”. The statistics generated from the absentee file do not include absentee by mail ballots that were either requested and not sent to the voter, or sent to the voter but not returned to the State Board of Elections.
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ballots submitted by Latinx voters rejected.53 In light of the anticipated dramatic increase
in the use of absentee ballots and the new restrictions under SB 683 on who may assist a
voter to request an absentee ballot, there is a heightened risk that voters new to mail-in
absentee voting will fail to follow the proper procedures without being afforded any
opportunity to cure any deficiencies. As it stands, North Carolina’s election code risks
disenfranchising vast numbers of voters attempting to submit mail-in absentee ballots.
F. In-Person Voting
77. North Carolina’s electorate has expressed a clear preference for in-person
voting, with just 4 percent of voters casting mail-in absentee ballots in the 2016 general election.54 In general, preference for in-person voting holds disproportionately true for voters of color.55 There are a multitude of causes for this voter behavior pattern, but one
reason stems from the machinations used to steal votes from and defraud voters of color, among others.56 This means that North Carolina has not needed to, and indeed has not,
53 Id. 54 See N.C. State Bd. of Elections, November 8, 2016 History Statistics, https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_11_08/history_stats_20161108.zip This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2016_11_08”  “history_stats_20161108.zip”. 55 See David Becker, Mail-in ballots to avoid coronavirus? Yes, but here’s how to minimize chaos and unfairness, WASH. POST (Mar. 18, 2020), https://www.washingtonpost.com/opinions/2020/03/18/mail-in-ballots-avoidcoronavirus-yes-heres-how-minimize-chaos-unfairness/. 56 See generally, CAROL ANDERSON, ONE PERSON, NO VOTE: HOW VOTER SUPPRESSION IS DESTROYING OUR DEMOCRACY 19-22 (2018); STEVEN LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH, 1944-1969, Ch. 2 (1999).
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built the infrastructure to accommodate such a dramatic increase in voter demand for absentee ballots without overwhelming current systems and causing mass disenfranchisement.57 Thus, it is critically important that voters be provided with ample and as-safe-as-possible in-person voting options.
78. The CDC has issued guidance directing election officials to “reduce crowd size at polling stations” such as encouraging “early voting, where voter crowds may be smaller throughout the day,” which “minimizes the number of individuals a voter may come in contact with.”58 There are two provisions of North Carolina law that have already and will continue to hinder county boards in providing safe and adequate in-person voting options, and there are a number of other adjustments needed to ensure voter and poll worker safety.
1. Ensuring Adequate Number of Poll Workers 79. The first problematic provision is North Carolina’s requirement that poll workers reside in the county where they serve on Election Day. See N.C. Gen. Stat. § 16342(b) as amended by HB 1169 § 1(b). Upon information and belief, as of May 14, 2020, eight county boards have requested to eliminate 64 precincts for the upcoming
57 See Ryan McCarthy, Whether the Ballot You Mail Is Counted May Depend On Where You Vote, PROPUBLICA (Apr. 30, 2020), https://www.propublica.org/article/whether-theballot-you-mail-is-counted-may-depend-on-where-you-vote. 58 Coronavirus Disease 2019 (COVID-19), Recommendations for Election Polling Locations, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last updated: Mar. 27, 2020).
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Congressional District 11 Second Republican Primary, impacting over 50,000 voters.59 Several of these county boards specifically cited a lack of poll workers as a reason for consolidated precincts.
80. As the pandemic persists into the fall, older poll workers will continue to withdraw in numbers sufficient to preclude the operation of countless polling places. In the 2014 general election, over 60 percent of North Carolina poll workers were 61 years of age or older and, as a result, a significant portion of poll workers are in the 65-years-old-plus CDC risk category.60
81. Defendant Director Bell requested a change in state law to allow county boards to recruit and train poll workers from across the county,61 and county board members from Congressional District 11 similarly conveyed to North Carolina’s leadership that this change “would significantly help us staff polling places in these challenging times.”62
59 See https://dl.ncsbe.gov/index.html?prefix=Public_Records_Requests/June%2023%20Second %20Primary_temporary_precinct_transfers/. 60 U.S. Election Assistance Comm’n, The 2014 EAC Election Administration and Voting Survey Comprehensive Report (Table 39), at 248, https://www.eac.gov/sites/default/files/eac_assets/1/1/2014_EAC_EAVS_Comprehensiv e_Report_508_Compliant.pdf. 61 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1). 62 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 27, 2020) (Exhibit 3).
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82. Although HB 1169 requires only one poll worker to be from within the precinct, it still requires poll workers to be from within the county. See HB 1169 § 1(b). The June 9, 2020 primary election in Georgia indicates that this expansion will still be insufficient to prevent a poll worker shortage, as even county-wide recruitment of poll workers proved insufficient to properly staff polling locations.63 As North Carolina faces the withdrawal of countless poll workers statewide, this requirement will make it extremely difficult, if not impossible, to cure those critical shortages, prevent the closure of any polling places, and minimize the lines, crowds, and wait times at operational polling places. Long wait times and crowds unduly place vulnerable voters at a greater risk of contracting COVID-19.
2. Early Voting Flexibility 83. North Carolina must also change its hours-uniformity requirement for onestop, better known as “early voting,” sites. Currently, if any early voting site is open in a county, all early voting sites must be open and all sites other than the county board office must be open 8:00 a.m. to 7:30 p.m. See N.C. Gen. Stat. § 163-227.6(c). As a result, precincts are unable to provide flexible hours that accommodate the specific behaviors and needs of the local voting population using that site. Precincts that might otherwise close
63 Georgia Primary Blighted By Long Lines and Broken Voting Machines, The Guardian (June 2020), https://www.theguardian.com/us-news/2020/jun/09/georgia-electionprimary-long-lines-broken-voting-machines; O.C.G.A. § 21-2-92 (requiring poll workers to be “residents of or otherwise employed by the county in which they are appointed” for non-municipal elections).
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due to low anticipated activity must stay open, increasing costs for the entire county and causing precinct consolidation.64
84. After North Carolina imposed this requirement in June 2018 mandating uniform hours across all early voting sites within each county,65 the costs of implementing
this measure caused 43 counties to reduce the number of early voting sites in the 2018
general election compared to 2014 and over two thirds of counties to reduce weekend
hours. This disproportionately impacted black voters, who in 2018 made up approximately
22% of registered voters but 27% of those who cast ballots on the last Saturday of early voting.66
85. As discussed above, the anticipated shortage of poll workers will already
cause precinct consolidation in light of the global pandemic; the uniform hours requirement
will compound this, causing long lines and limited early voting sites during the early voting
period when social distancing and reducing crowds is required for safe election
administration. Individuals accustomed to early voting may very well be deterred by large
64 See Blake Paterson, Bipartisan Furor as North Carolina Election Law Shrinks Early Voting Locations by Almost 20 Percent, PROPUBLICA (Sept. 24, 2018), https://www.propublica.org/article/bipartisan-furor-as-north-carolina-election-lawshrinks-early-voting-locations-by-almost-20-percent. 65See An Act to Set Hours for One-Stop Early Voting Sites, S.L. 2018-112 (June 15, 2018). As originally written, the statute removed the final Saturday of early voting beginning in 2018; this was subsequently postponed. 66 See Voting Rights and Election Administration in North Carolina: Field Hearing Before the Subcomm. on Elections of the H. Comm. on House Administration (Apr. 18, 2019) (testimony of Tomas Lopez, Exec. Dir., Democracy North Carolina), https://docs.house.gov/meetings/HA/HA08/20190418/109315/HHRG-116-HA08-WstateLopezT-20190418.pdf.
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crowding and the inherent heightened risk of infection; they will thus be forced to choose between risking their health to cast a ballot or foregoing their right to vote.
3. Information Regarding Precinct Consolidation 86. The State Board of Elections must also create a more accessible, centralized way in which voters and advocates can monitor precinct consolidation, and thereby advocate against harmful precinct consolidations. Currently, each county board of elections must give notice at least 45 days before the election when altering or consolidating precincts. See N.C. Gen. Stat. § 163-128(a). This notice must be posted in a generally circulated newspaper, posted on the door of the county courthouse and county board of elections, and mailed to the chairmen of every political party in the county. Id. Voters only need to be notified of changes in their particular precinct 30 days before an election. Id. In order to ensure that all voters have access to information about precinct consolidations necessitated by poll worker and/or site shortages, the State Board must provide that information in a centralized and accessible manner.
4. Personal Protective Equipment 87. Finally, there is currently no provision for counties to provide poll workers and voters with Personal Protective Equipment (“PPE”) for use during in-person voting, such as protective masks and gloves for poll workers and/or voters, separation shields, antiseptic wipes for equipment, and single-use pens. Section 11.3(b) of HB 1169 provides only that the State Board of Elections “coordinate” the purchase of PPE with counties, but does not guarantee or require that each county provide PPE. Effective use of PPE can
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dramatically reduce the likelihood of coronavirus transmission,67 and these measures are needed to adequately protect voters exercising their constitutional rights. In a May 15, 2020, meeting of the State Board of Elections, Defendant Director Bell stated that she had ordered PPE for those counties holding the second Republican primary election on June 23, 2020. The same provisions are required for the 2020 general election and, because of the state-wide nature and expected high turnout of this election, the SBE Defendants must take action immediately to ensure counties obtain adequate supplies. Without these measures, Plaintiffs will be forced to choose between their right to vote and their right to bodily integrity.
CLAIMS COUNT ONE (All Defendants) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983) 88. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 89. Under the First and Fourteenth Amendments to the U.S. Constitution, any burden on the right to vote must be balanced against a state’s interest in that requirement. The Supreme Court has set forth the following test: [T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those
67 See, e.g., Zeynep Tufekci et al., The Real Reason To Wear A Mask, THE ATLANTIC (Apr. 22, 2020), https://www.theatlantic.com/health/archive/2020/04/dont-wear-maskyourself/610336/.
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rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also id., at 788–789, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992). 90. “A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition.” Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring); see also N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016) (because there were fewer early voting days, more voters would have to vote on Election Day, and “[t]ogether, these produce longer lines at the polls on Election Day, and absent out-of-precinct voting, prospective Election Day voters may wait in these longer lines only to discover that they have gone to the wrong precinct and are unable to travel to their correct precincts. Thus, cumulatively, the panoply of restrictions results in greater disenfranchisement than any of the law’s provisions individually.”). 91. Unless Plaintiffs are granted the relief requested, the right to vote and ability to freely associate of thousands of North Carolinians, including Individual Plaintiffs and Organizational Plaintiffs and their members, will be severely burdened (if not denied entirely) in the general election on November 3, 2020. Voter Registration 92. North Carolina’s requirement that voter registration applications be submitted at least 25 days before the election in which the voter wishes to cast a ballot
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under N.C. Gen. Stat. § 163-82.6(d), and the DMV’s requirement that those registering online do so at least 25 days before the election, is a severe burden on the right to vote in light of the COVID-19 pandemic, which has caused a dramatic decrease in voter registration rates. If a voter is not able to register at least 25 days before the election, then their only recourse is to do same-day registration at an early voting site, therefore potentially exposing themselves or their families to infection via COVID-19. See N.C. Gen. Stat. § 163-82.6(f). Furthermore, North Carolina’s failure to provide online voter registration through other state agencies, and specifically Defendant DHHS, places a severe burden on those individuals who need to register online but are not registered with the DMV.
93. Any administrative burden created by extending the voter registration deadline and/or expanding online voter registration through Defendant DHHS is “de minimis” and Defendants cannot put forth a compelling or legitimate state interest in keeping the deadline as such in face of the emergency situation that COVID-19 has created and will create. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 48394, at *14 (W.D. Wis. Mar. 20, 2020); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016); Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016).
94. Since DMV has only allowed voters to register online without requiring a DMV transaction at the same time since March 2020, voters are generally unaware of this option. The 25-day deadline will hinder LWVNC’s efforts to promote voter registration and require LWVNC and its members to divert significant resources. The lack of other
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online registration options offered by the DHHS Defendants further impedes LWVNC’s ability to educate and engage in its voter registration efforts, and frustrates its mission to ensure that all eligible voters can register safely during the COVID-19 pandemic.
95. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing this 25-day deadline or failing to provide online voter registration through Defendant DHHS that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given that North Carolina allows for same-day registration at one-stop early voting sites up until the Saturday before the election and has already implemented an online voter registration method through DMV for certain voters. Upon information and belief, Defendant DHHS possesses “wet-ink” signatures of its benefits recipients. Accordingly, any purported state interests in enforcing this 25-day deadline or failing to provide Defendant DHHS online voter registration are neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail assistance restrictions
96. North Carolina’s restrictions on who can assist voters with completing and returning mail-in absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2(c), (e), and (e1) is a severe burden on the fundamental right to vote and Plaintiff LWVNC, their members, and the voters they will assist during the upcoming election. This restriction impairs LWVNC’s efforts to help voters cast a ballot and limits the assistance LWVNC and its members can provide to voters wishing to vote by mail, during an election in which voters are expected to vote by mail—and do so for the first time—in unprecedented numbers. Additionally, Plaintiff Schaffer’s First Amendment speech and associational
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right to help people cast a ballot is impaired given that under the current law she is not able to assist voters as she has in the past through various volunteer opportunities.
97. Likewise, the failure of North Carolina election code to allow individuals to submit alternative proof of residency such as HAVA documents with their absentee request forms unnecessarily impedes and restricts the ability of North Carolina voters to successfully request absentee ballots at a time when the need to request those ballots will be at an all-time high.
98. In the midst of this ongoing public health crisis, there is no state interest in favor of imposing and enforcing these restrictions that justifies the burden placed on the constitutional right to vote. Any purported state interest in enforcing the restriction on who can assist individuals in requesting absentee ballots is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail Witness Requirement
99. North Carolina’s witness or notary requirement for mail-in absentee voting pursuant to N.C. Gen. Stat. § 163-231(a), even as amended by HB 1169 to require one witness, is a severe burden on Plaintiffs’ right to vote in light of the COVID-19 pandemic, because it will require voters, particularly voters at high risk of severe complications and death from COVID-19, to break their self-quarantine and violate social distancing directives at risk to their health. Plaintiff Bentley, who is self-isolated at home, lives alone and does not have any family members nearby. Satisfying the witness requirement will require her to put herself at risk of contracting COVID-19 in order to satisfy the witness certification requirement.
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100. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing the witness or notary requirement that justifies the burden placed on Ms. Bentley’s constitutional right to vote. Any purported state interest in enforcing the witness or notary requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail lack of fail-safe for absentee ballots that are not timely delivered to voters
101. North Carolina lacks any fail-safe option for mail-in absentee voters, if the state’s election administrators, as anticipated, cannot successfully deliver mail-in ballots on time to ten times as many absentee voters as usual. In order to prevent the wholesale and unlawful denial of the right to vote to voters who cannot risk voting in person at a polling site on or before Election Day, Defendants must afford voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day—i.e. within a certain number of days of the election of their request and/or within a certain number of days of the request—the option to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.68 Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by mail-in absentee ballot, in order to safeguard their health. If, as expected, North Carolina’s state and local election officials and their staff cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these five Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted.
68 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. 51
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Accordingly, in order to protect their right to vote, just like overseas civilian voters, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley must be permitted to cast FWABs, as a fail-safe option.
102. Particularly in the midst of this ongoing public health crisis, the failure to offer this standardized fail-safe option for mail-in absentee voters, which would completely deny the right to vote to countless domestic civilian absentee voters, cannot be justified by any legitimate or important state interest. This option is already afforded to overseas civilian voters; the exclusion of domestic, civilian voters, at least in the limited context where a voter does not receive a requested absentee ballot in the mail, is unreasonable and discriminatory. See Burdick, 504 U.S. at 434 (“But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”) (emphasis added, internal quotations omitted). Any purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Vote-by-mail failure to provide other accommodations
103. North Carolina’s failure to provide mechanisms for requesting absentee ballots by phone, its failure to provide contactless drop boxes for absentee ballots that would allow voters to submit their absentee ballots from their vehicles instead of violating social-distancing directives and guidelines, and its failure to provide a statewide-mandated procedure for voters to cure deficient absentee ballot requests are all, individually or in combination, severe restrictions on Plaintiffs’ right to vote and will require them to put
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their own health at risk in order to successfully vote by absentee ballot. See Clingman v. Beaver, 544 U.S. 581 607–08 (2005) (O’Connor, J., concurring); N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016). LWVNC will also have to redirect a significant amount of its limited resources toward helping eligible voters to access absentee ballot request forms without a phone option to request an absentee ballot.
104. Additionally, Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects. Furthermore, the lack of any uniform mechanism to cure will require LWVNC and Democracy NC to devote additional resources towards researching these various rules to help ensure the voters they assist have followed all procedures for requesting and filling out absentee ballots precisely, in addition to their general educational efforts.
105. In the midst of this ongoing public health crisis, there is no state interest in failing to provide these services that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given the numerous other states that do provide these services. Any purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Poll worker “home county” requirement
106. North Carolina’s requirement that poll workers reside in the county where they serve on Election Day pursuant to N.C. Gen. Stat. § 163-42(b), as amended by HB 1169, is a severe burden on Plaintiffs’ right to vote, as it will exacerbate a shortage of poll
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workers, force precinct consolidation and relocation, and create long lines and crowds on Election Day that contravene social distancing directives needed to protect Plaintiffs’ health.
107. This constitutes a severe burden on voters, particularly those who cannot wait in line for hours to vote. SBE Defendants are on notice that precinct consolidation due to lack of poll workers is likely, given the requests for precinct consolidation for the June 23, 2020 second Republican Primary and the recent issues in the June 9, 2020 Georgia primary, and their failure to prepare for this same eventuality in the November 3, 2020 general election will severely burden the rights of voters who rely on in-person voting. See Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969) (finding that the defendant’s failure to provide adequate voting facilities despite their foreknowledge of precinct consolidations deprived voters of their constitutional rights); see also League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (finding long lines and inadequate voting machines severely burdened Ohio voters’ right to vote).
108. Plaintiff Permar relies on polling sites being open in order to vote in-person given her disability and her need to use an ADA compliant voting machine. She also relies on polling places being located in places that are accessible by public transportation, which she uses to independently travel. Ms. Permar’s right to vote and others similarly situated would be severely burdened if precincts are consolidated in such a way as to force her or others similarly situated to travel to a polling place that is not accessible by public transportation or to wait in long lines exposing themselves to COVID-19 when they get to the polling place. Plaintiff LWVNC will also be required to divert resources to recruit poll
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workers, as well as in its voter education efforts to alert its members and those in their communities about precinct consolidations if the home county requirement for poll workers remains in place and precincts are consolidated as a result. Democracy NC’s poll monitors will also have to divert their resources to ensure voters find the correct precinct, instead of providing the help they would otherwise provide voters.
109. In the midst of this ongoing public health crisis, there is no state interest in enforcing this requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. In-person voting uniform hours
110. North Carolina’s requirement that early voting sites in every county maintain uniform hours pursuant to N.C. Gen. Stat. § 163-227.6(c) is a severe burden on Plaintiffs’ right to vote, as the costs of maintaining uniform hours and limited resources in counties will cause precinct consolidation and long lines and crowds on early voting days that contravene social distancing directives needed to protect Plaintiffs’ health. Additionally, given the SBE Defendants’ knowledge about the effect that COVID-19 has had on the June 2020 runoff election and could have on the November 2020 general election, they have an obligation to mitigate precinct consolidation as much as possible so as to not severely burden voters’ right to vote. See Ury, 303 F. Supp. at 124.
111. Plaintiff Permar works at Duke Hospital as a staff assistant, thus it is important that she is able to vote at a time that is in line with her work schedule. Further, Ms. Permar or other similarly situated disabled individuals should not have to wait in long
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lines further risking their health or potential COVID-19 infection. Plaintiffs Democracy NC and LWVNC will also be required to divert resources in its voter education efforts to alert their members/advocates and those in their communities about precinct consolidations if the uniform hours requirement remains in place.
112. In the midst of this ongoing public health crisis, there is no state interest in enforcing this uniform hours requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Precinct-consolidation monitoring
113. North Carolina’s failure to provide a more accessible, centralized way in which voters and advocates can monitor precinct consolidation is a severe burden on Plaintiffs’ right to vote. The lack of centralized access to this information will impede and confuse voters’ ability to determine where and how best to vote in-person and will impede the efforts of advocates to oppose harmful precinct consolidations. Plaintiff Permar and other voters rely on being able to know in advance where early voting locations are, or where their election-day polling place is, so as to ensure that they are able to properly schedule a time to vote. Democracy NC is a central hub for voter information, and it would be a huge drain on its resources to not have easy access to proposed precinct consolidations to inform voters. In the midst of this ongoing public health crisis, there is no state interest in failing to provide this service that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide this service is neither
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narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis. Personal Protective Equipment
114. North Carolina’s failure to provide PPE to all counties for use during early and Election-Day in-person voting is a severe burden on Plaintiffs’ right to vote, as the failure to provide this will exacerbate the shortage of poll workers and increase the risk present to all individuals that vote in person. In conducting its Election Protection hotline and poll monitoring program, Democracy NC volunteers will almost certainly be queried about PPE, who has it, and how to get it if is not provided. In the midst of this ongoing public health crisis, there is no state interest in failing to provide PPE that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide PPE is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
115. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution by administering and enforcing the above laws and/or by failing to provide the above accommodations and services during the COVID-19 pandemic.
116. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of undue burdens on their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
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COUNT TWO (SBE Defendants) (Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to Bodily Integrity in Violation of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983) 117. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 118. Voting is protected by the First Amendment as a means of political association and political expression. See Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Norman v. Reed, 502 U.S. 279, 288–90 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787–89, 806 (1983); Kusper v. Pontikes, 414 U.S. 51, 56–58 (1973); Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). 119. Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. See Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968); Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Green v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997). 120. “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). Government actions that threaten the right to bodily integrity are subject to strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). The Supreme Court has invalidated voting requirements or conditions
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that require the forfeiture of another fundamental right. See Dunn v. Blumstein, 405 U.S. 330, 346, 353 (1972) (finding that durational residency requirement for voter registration placed unconstitutional condition on fundamental right to interstate travel).
121. The Fourteenth Amendment guarantees the right to bodily integrity, and this right is violated if government officials are deliberately indifferent to the violation of the plaintiff’s bodily integrity. See Missouri v. McNeely, 569 U.S. 141, 159 (2013); Guertin v. Michigan, 912 F.3d 907, 919 (6th Cir. 2019) (recognizing that “individuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest”) (quoting Planned Parenthood Sw. Ohio Reg. v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012)).
122. “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” Guertin, 912 F.3d at 921–22.
123. Defendants require Plaintiff Bentley to satisfy unnecessary requirements for mail-in absentee voting that cannot be reasonably and safely accomplished without severely threatening her right to bodily integrity. Because in-person voting even more severely threatens to violate Plaintiff Bentley’s bodily integrity by subjecting her to the significant risk of contracting COVID-19, Defendants’ enforcement of North Carolina’s requirements as to mail-in voting will force Plaintiff Bentley to forfeit her right to bodily integrity in order to exercise her right to vote. Should Plaintiff Bentley exercise her right to vote by mail under these circumstances, Defendants will have knowingly subjected
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Plaintiff Bentley to a foreign substance—the novel coronavirus that causes COVID-19— without a therapeutic basis or her consent.
124. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiff Bentley of her rights under the Fourteenth Amendment to the U.S. Constitution, by requiring her to forfeit her right to bodily integrity in order to exercise her right to vote.
125. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiff Bentley of the right to be free of unconstitutional conditions on her right to vote in violation of the Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT THREE (SBE Defendants) (Violation of the Rights of Free Speech and Association in violation of the First and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. §
1983) 126. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 127. The First Amendment to the United States Constitution, as applied to the states through the Fourteen Amendment, prohibits an abridgment of the freedom of speech or associational rights. Any burden, regardless of how slight, “must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Norman, 502 U.S. at 288–89.
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128. The restrictions on who can assist voters with completing and returning mailin absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2 effectively prohibits the Organizational Plaintiffs and their members’ core political speech and expressive conduct, which includes assisting voters with requesting and submitting absentee ballot requests in an effort to engage potential voters and encourage them to vote. Plaintiff Schaffer’s individual speech and associational rights are also impaired by N.C. Gen. Stat. § 163-230.2, because she is no longer able to assist as she has in the past. These efforts are particularly important in the midst of the current public health crisis, where for many voting by mail is crucial to protecting their health and the health of their co-habitants and family members, and where the anticipated surge in individuals voting by mail means many will be doing so for the first time and without prior experience. Because of this prohibition, the Organizational Plaintiffs and their members will not be able to effectively engage potentially eligible absentee voters, nor will they be able to effectively facilitate those eligible voters requesting absentee ballots.
129. N.C. Gen. Stat. § 163-230.2 therefore chills the Organizational Plaintiffs’ speech and associational rights, and Plaintiff Schaffer’s individual speech and associational rights,69 and does so without being narrowly-tailored to serve a compelling state interest. The restrictions on who can assist voters with completing and submitting absentee ballot requests are not justified by a state interest, especially in light of the current COVID-19
69 Plaintiffs’ contend that Schaffer’s First Amendment right to free speech and association are restricted under the Anderson/Burdick test, or, alternatively, under exacting scrutiny similar to Meyer v. Grant, 486 U.S. 414, 422–23 (1988).
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pandemic, where allowing individuals to follow social-distancing guidelines and selfquarantine is crucial to protecting their health and the health of their co-habitants and family members.
COUNT FOUR (SBE Defendants) (Denial of Plaintiffs’ Right to Procedural Due Process in violation of the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1983) 130. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 131. The Due Process Clause of the Fourteenth Amendment prohibits the deprivation of “life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV § 1. “Where the government seeks to deprive someone of a liberty interest protected by due process, due process demands that certain procedural safeguards be provided.” United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). A liberty interest that is governed by due process can be created by the Constitution or “may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 132. At a minimum, “procedural due process requires fair notice of impending state action and an opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d 140, 146 (4th Cir. 2014) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 133. “Proper notice is ‘an elementary and fundamental requirement of due process,’ and must be reasonably calculated to convey information concerning a deprivation.’” Snider Int’l, 739 F.3d at 146 (quoting Mullane v. Cent. Hanover Bank & Tr.
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Co., 339 U.S. 306, 314 (1950)); see also Presley v. City of Charlottesville, 464 F.3d 480, 490 (4th Cir. 2006).
134. As for the opportunity to be heard, “Mathews set forth the familiar three-step inquiry for determining the adequacy of the opportunity to be heard: a balancing of the private interest and the public interest, along with ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.’” Snider Int’l, 739 F.3d at 146 (quoting Mathews, 424 U.S. at 335). “Fundamental to due process is an opportunity to be heard—‘an opportunity which must be granted at a meaningful time.’” Sciolino v. City of Newport News, Va., 480 F.3d 642, 653 (4th Cir. 2007) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
135. Absent exigent circumstances, due process requires pre-deprivation procedures. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original)); Sciolino, 480 F.3d at 653 (“An opportunity to clear your name after it has been ruined by dissemination of false, stigmatizing charges is not ‘meaningful.’”).
136. North Carolina law gives all registered North Carolina voters statutory rights to request and cast a mail-in absentee ballot that will be processed and counted, thereby vesting them with liberty interests. Eligible, registered voters enjoy an “individual and personal” right to vote under North Carolina law. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)).
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137. However, the SBE Defendants do not afford mail-in absentee voters any notice of or opportunities to cure material defects in their absentee ballot request forms or absentee ballots including their certificate envelopes that will result in rejection, thereby depriving Plaintiffs and other registered North Carolina voters of their liberty interests in requesting and casting a mail-in absentee ballot and exercising their fundamental right to vote.
138. The risk of erroneous deprivation is high, as these eligible, registered North Carolina voters are entitled by law to request an absentee ballot and to vote an absentee ballot and, therefore, must be provided with an additional procedural safeguard, the opportunity to timely cure any defect that would cause the absentee ballot request form’s rejection or the absentee ballot’s rejection.
139. Plaintiffs Clark, Cates, Edwards, Priddy, Hutchins, and Bentley all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects.
140. Defendants cannot advance any interests that outweigh the risk of erroneous deprivation. The threat of disenfranchising Plaintiffs and their members far outweighs any increased administrative burden in affording voters an opportunity to cure their absentee ballot request form defects or their absentee ballot defects, including any defects on the certificate envelope. Defendants’ interest in conducting fair election administration and preserving election integrity would not be compromised in the slightest, and they would satisfy their weighty interest in abiding by federal constitutional requirements.
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141. For the foregoing reasons, SBE Defendants have violated and will continue to violate Plaintiffs Clark, Cates, Edwards, Priddy, Hutchins, and Bentley’s federal constitutional rights to procedural due process.
142. At all relevant times, Defendants have acted under color of state law. 143. Defendants have deprived and will continue to deprive Plaintiffs Clark, Cates, Edwards, Priddy, Hutchins, Bentley and all voters seeking to vote by mail of their right to adequate notice and a meaningful opportunity to be heard in order to cure deficiencies with their absentee ballot request forms and their absentee ballots. This wholly fails to meet these minimum requirements of procedural due process, as guaranteed to Plaintiffs by the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
COUNT FIVE (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 144. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Compliant and the paragraphs in the counts below as though fully set forth herein. 145. Under Title II of the Americans with Disabilities Act, state and local governments must not impose requirements on participation in public services, programs, or activities, including voting, that screen out individuals with disabilities from fully and equally enjoying those programs and must make reasonable modifications in policies, practices, or procedures, including voting and election procedures, when the modifications are necessary to avoid discrimination on the basis of disability.
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146. A disability exists under the ADA when an individual has (1) a physical impairment; (2) that affects at least one major life activity; (3) in a substantial way. Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
147. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which interferes with several major life activities, including breathing. His COPD has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical impairment that has detrimental effects on her health, especially her ability to operate a major bodily function, her endocrine system, and puts her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions, which include being immunocompromised due to taking medications to address complications from a kidney transplant, are physical impairments that puts him at risk of severe illness from COVID-19. This substantially influences his major life activities because the function of his immune system is directly affected. Plaintiff Hutchins is legally blind, which substantially affects a number of his major life activities, such as seeing, reading, writing, and walking. These physical impairments substantially affect the various major life activities of Plaintiffs Clark, Edwards, Priddy, and Hutchins. Accordingly, Plaintiffs Clark, Edwards, Priddy, and Hutchins have disabilities as defined by the ADA and should be provided meaningful access to the ballot through a more accessible mail-in voting process.
148. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, and Priddy possess are “at higher risk for severe illness from COVID-19.” Defendants’ failure and refusal to ensure that plaintiffs with disabilities are
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given the ability to vote without risks of serious illness or death constitute a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards and Priddy, whose health limits their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the ADA.
149. Plaintiffs Clark, Edwards, and Priddy all intend to vote by mail-in absentee ballot, due to their disabilities. If, as expected, North Carolina’s state and local election officials, their staff, and the U.S. Postal Service cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted. In that case, the failure to offer FWABs as an accommodation and a fail-safe option would prevent these disabled individuals from fully participating in their right to vote in violation of the ADA.
150. Plaintiff Hutchins is prohibited from asking staff and nurses at his nursing facility to assist him with returning an absentee ballot request form, marking and completing an absentee ballot, and submitting an absentee ballot. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6), 163-230.2(e)(4), 163-231(b)(1). As a result of the COVID-19 pandemic, his nursing home is closed to visitors and he is not able to receive assistance from his wife in any of these steps in the absentee voting process. Even though HB 1169 requires that DHHS and SBE Defendants “develop guidance to safely allow [MATs] to assist registered voters within hospitals, clinics, [and] nursing homes. . . ,” the guidelines do not exist, and there is no indication on how DHHS and SBE plan to recruit additional MATs members. In any event, nursing homes, which have imposed strict lockdowns to protect their elderly, vulnerable residents—prohibiting even
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spouses from visiting since March—will likely deny MATs from breaching their lockdowns to access their residents due to the pandemic. Plaintiff Hutchins would be unable to vote by absentee ballot unless SBE Defendants allow nursing home staff to assist him with each of these steps.
151. Defendants’ failure to ensure that voters like Plaintiff Hutchins, who wishes to vote by mail because he is blind, vulnerable to COVID-19 due to his advanced age, and resides in a nursing home, can receive the assistance he needs from nursing home staff to return an absentee ballot request form and complete and submit an absentee ballot is a violation of the ADA.
152. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Title II of the Americans with Disabilities Act.
COUNT SIX (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 153. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 154. Under Section 504 of the Rehabilitation Act, federally funded programs, including state and local programs related to elections and voting, must not discriminate against individuals with disabilities and must make reasonable accommodations to allow individuals with disabilities to access the federal funded program, activity, or service.
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155. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act.
156. A disability exists under the Rehabilitation Act when an individual has (1) a physical impairment; (2) that affects at least one major life activity; (3) in a substantial way. Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
157. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which interferes with several major life activities, including breathing. His COPD has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical impairment that has detrimental effects on her health, especially her ability to operate a major bodily function, her endocrine system, and puts her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions, which include being immunocompromised due to taking medications to address complications from a kidney transplant, are physical impairments that put him at risk of severe illness from COVID-19. This substantially influences his major life activities because the function of his immune system is directly affected. Plaintiff Hutchins is legally blind, which substantially affects a number of his major life activities, such as seeing, reading, writing, and walking. These physical impairments substantially affect the major life activities of Plaintiffs Clark, Edwards, Priddy, and Hutchins. Accordingly, Plaintiffs Clark, Edwards, Priddy, and Hutchins have disabilities as defined by the Rehabilitation Act and should be provided meaningful access to vote through a more accessible mail-in voting process.
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158. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, Priddy possess are “at higher risk for severe illness from COVID-19.” Defendants’ failure to ensure that plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitutes a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards, and Priddy, whose physical impairments limit their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the Rehabilitation Act.
159. Plaintiffs Clark, Edwards, and Priddy all intend to vote by mail-in absentee ballot, due to their disabilities. If, as expected, North Carolina’s state and local election officials, their staff, and the U.S. Postal Service cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted. In that case, the failure to offer FWABs as an accommodation and a fail-safe option would prevent these disabled individuals from fully participating in their right to vote in violation of the Rehabilitation Act.
160. Plaintiff Hutchins is prohibited from asking staff and nurses at his nursing facility to assist him with returning an absentee ballot request form, marking and completing an absentee ballot, and submitting an absentee ballot. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6), 163-230.2(e)(4), 163-231(b)(1). As a result of the COVID-19 pandemic, his nursing home is closed to visitors and he is not able to receive assistance from his wife in any of these steps in the absentee voting process. Even though H.B. 1169 requires that DHHS and SBE Defendants “develop guidance to
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safely allow [MATs] to assist registered voters within hospitals, clinics, [and] nursing homes. . . ,” the guidelines do not exist, and there is no indication on how DHHS and SBE plan to recruit additional MATs members. In any event, nursing homes, which have imposed strict lockdowns to protect their elderly, vulnerable residents—prohibiting even spouses from visiting since March—will likely deny MATs from breaching their lockdowns to access their residents due to the pandemic. Plaintiff Hutchins would be unable to vote by absentee ballot unless SBE Defendants allow nursing home staff to assist him with each of these steps.
161. Defendants’ failure to ensure that voters like Plaintiff Hutchins, who wishes to vote by mail because he is blind, vulnerable to COVID-19 due to his advanced age, and resides in a nursing home, can receive the assistance he needs from nursing home staff to return an absentee ballot request form and complete and submit an absentee ballot is a violation of Section 504 of the Rehabilitation Act.
162. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
COUNT SEVEN (SBE Defendants) (Disparate Impact Claims in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 163. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein.
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164. Under Title II of the Americans with Disabilities Act, States cannot promulgate standards, criteria, or methods of administration that have the effect of discriminating against individuals based on their disabilities.
165. The Defendants are all public entities covered by Title II of the ADA. 166. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy and individuals over the age of 65, such as Plaintiff Hutchins, are significantly more likely to risk serious illness or death if they contract COVID-19. Defendants’ enforcement of current voting regulations will unnecessarily expose Plaintiffs Clark, Edwards, Priddy, and Hutchins to an unjustifiable risk of severe illness from COVID-19 in order to vote. This will result in disparate impact upon Plaintiffs Clark, Edwards, Priddy, and Hutchins if they attempt to vote because they will be more harshly affected by COVID-19, in violation of the ADA. 167. Plaintiffs Clark, Edwards, and Priddy all intend to vote by mail-in absentee ballot, due to their disabilities. If, as expected, North Carolina’s state and local election officials, their staff, and the U.S. Postal Service cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted. The failure to offer FWABs as an accommodation and a fail-safe option will have a disparate impact upon disabled individuals, including Plaintiffs Clark, Edwards, and Priddy, in violation of the ADA. 168. Elderly, blind individuals who wish to vote absentee, like Plaintiff Hutchins, will need assistance from nursing home staff to fill out and submit request forms and
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absentee ballots and act as witnesses—assistance that is unavailable to people who are quarantined in nursing homes due to the pandemic.
169. Defendants will be unable to show that the current voting regulations are justified by legitimate state interests.
170. The disparate impact that will result from enforcing these conditions has the effect of prohibiting individuals with disabilities from participating in the November 3, 2020 general election, in violation of Title II of the ADA.
COUNT EIGHT (SBE Defendants) (Disparate Impact Claims in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 171. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 172. Section 504 of the Rehabilitation Act prohibits federally funded programs, including state and local programs related to elections and voting, from enacting facially neutral policies that have a discriminatory impact on persons within a protected class. 173. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act. 174. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy and individuals over the age of 65, such as Plaintiff Hutchins are significantly more likely to risk serious illness or death if they contract COVID-19. Defendants’ enforcement of current voting requirements will unnecessarily expose Plaintiffs Clark, Edwards, Priddy, and Hutchins to an unjustifiable risk of severe illness
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from COVID-19 in order to vote. This will result in disparate impact upon Plaintiffs Clark, Edwards, Priddy, and Hutchins if they attempt to vote because they will be more harshly affected by COVID-19, in violation of the Rehabilitation Act.
175. Plaintiffs Clark, Edwards, and Hutchins all intend to vote by mail-in absentee ballot, due to their disabilities. If, as expected, North Carolina’s state and local election officials, their staff, and the U.S. Postal Service cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted. The failure to offer FWABs as an accommodation and a fail-safe option will have a disparate impact upon disabled individuals, including Plaintiffs Clark, Edwards, and Priddy in violation of the Rehabilitation Act.
176. Elderly, blind individuals who wish to vote absentee, like Plaintiff Hutchins, will need assistance from nursing home staff to fill out and submit request forms and absentee ballots and act as witnesses—assistance that is unavailable to people who are quarantined in nursing homes due to the pandemic.
177. Defendants will be unable to show that the current voting regulations are justified by legitimate state interests.
178. The disparate impact that will result from enforcing these conditions has the effect of prohibiting individuals with disabilities from participating in the November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
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COUNT NINE (Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508) 179. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 180. Section 208 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10508, provides: “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” 181. The word “vote” is expressly defined in 52 U.S.C. § 10310(c)(1) as follows: The terms “vote” or “voting” shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this chapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election. OCA-Greater Houston v. Texas, 867 F.3d 604, 614–15 (5th Cir. 2017) (quoting 52 U.S.C. § 10310(c)(1)) (“‘To vote,’ therefore, plainly contemplates more than the mechanical act of filling out the ballot sheet.) 182. Under Section 208, a voter who is blind, disabled, or unable to read or write (“208-covered voter”) possesses the right to choose any person other than their employer/union representative—regardless of whether the person is a near relative or legal guardian—to assist them with the voting process, including the steps necessary to obtain, cast, and submit an absentee ballot. See 52 U.S.C. § 10508; OCA-Greater Houston, 867 F.3d at 614–15.
75
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183. North Carolina restricts absentee voters to only assistance from their near relatives, verifiable legal guardians, or MAT team members, for absentee ballot request return, absentee ballot marking and completion, and absentee ballot return. Unlike for completing an absentee ballot request form, there is no similar exception for any of these steps for absentee voters who need assistance by reason of their blindness, disability, or inability to read or write. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163226.3(a)(6), 163-230.2(e)(4), 163-231(b)(1).
184. By imposing additional restrictions on who can assist a Section 208-covered voter who needs assistance with submitting their absentee ballot request form, marking and completing their absentee ballots, and returning their absentee ballots, specifically, by limiting valid assistors to the voter’s near relative, legal guardian, or MAT team members, N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6), 163-230.2(e)(4), and 163-231(b)(1) violate Section 208 of the VRA by failing to allow these voters to choose any assistor who is not their employer or union representative.
185. Defendants’ failure to allow eligible voters who need assistance by reason of their blindness, disability or ability to read or write in any part of the absentee voting process, from any person of their choice, other than their employers or union officials, as described herein, is a violation of Section 208. Plaintiff Walter Hutchins is harmed by these restrictions on assistance with absentee ballot request, absentee ballot marking and completion, and absentee ballot submission, and the corresponding lack of any disabilitybased exceptions. Plaintiff Hutchins is blind and requires assistance to submit an absentee
76
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ballot request form, and assistance in reading, marking, and submitting his ballot according

to his preferences.

186. By depriving Plaintiff Hutchins of rights and privileges under Section 208 of

the VRA under the color of state law, Defendants have violated and are liable under 42

U.S.C. § 1983.

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Court:

(a)

Assume jurisdiction over this matter;

(b)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h) (imposing 25-day voter registration

deadlines); N.C. Gen. Stat. § 163-230.2(a) (requiring requests for absentee ballots be made

by a form created by the State Board); N.C. Gen. Stat. § 163-230.2(c), (e), and (e1)

(imposing restrictions on absentee ballot request assistance); N.C. Gen. Stat. § 163-231(a)

as amended by HB 1169 § 1(a) (imposing the witness certification requirement); N.C. Gen.

Stat. § 163-230.2(a)(4), (f) (to the extent disallows election officials from accepting any

proof of residency document acceptable under the Help America Vote Act (HAVA)), N.C.

Gen. Stat. § 163-227.6(c) (requiring uniform hours in precincts); and N.C. Gen. Stat. §

163-42(b) as amended by HB 1169 § 1(b) (requiring poll workers to come from the county

in which they serve), and the Defendants’ failure to expand voter registration via online

portals available through DHHS services, failure to establish contactless drop boxes for

absentee ballots, failure to establish a mechanism for requesting absentee ballots by phone,

failure to establish mechanisms to cure deficient absentee ballot requests and absentee 77

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ballots, failure to allow for submission of FWAB ballots, failure to provide PPE to county

boards of election for use during in-person voting, and failure to establish a more

accessible, centralized way in which voters and advocates can monitor precinct

consolidation (and thus advocate against harmful precinct consolidations), in the context

of the pandemic, taken individually or in combination, violate the First and Fourteenth

Amendments to the U.S. Constitution, as enforced through 42 U.S.C. § 1983;

(c)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

§ 163-230.2(c), (e), and (e1) (imposing restrictions on absentee ballot request assistance),

N.C. Gen. Stat. § 163-231(a) as amended by HB 1169 (imposing the witness certification

requirement), and failure to expand voter registration via online portals available through

DHHS services, establish contactless drop boxes for absentee ballots, establish a

mechanism for requesting absentee ballots by phone, in the context of the pandemic, taken

individually or in combination, violate the unconstitutional condition doctrine and thereby

Plaintiffs’ First and Fourteenth Amendment right to bodily integrity, as enforced through

42 U.S.C. § 1983;

(d)

Declare that Plaintiffs’ First Amendment associational rights are violated by

N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6), 163-230.2(a), 163-

230.2(e)(4), and 163-231(b)(1);

(e)

Declare that the lack of a cure mechanism for Plaintiffs’ mail-in absentee

ballot request forms and mail-in absentee ballots violates their rights to procedural due

process;

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(f)

Declare that N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-

226.3(a)(6), 163-230.2(e)(4), 163-231(a) as amended by HB 1169 § 1(a), and 163-

231(b)(1), and failure to allow for submission of FWABs violate Title II of the Americans

with Disabilities Act, 42 U.S.C. §§ 12131, et seq., and Section 504 of the Rehabilitation

Act, 29 U.S.C. § 794;

(g)

Declare that N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-

226.3(a)(6), 163-230.2(e)(4), 163-231(a) as amended by HB 1169 § 1(a), and 163-

231(b)(1) violate Section 208 of the Voting Rights Act, 52 U.S.C. § 10508;

(h)

Preliminarily and permanently enjoin Defendants from administering and

enforcing during the COVID-19 pandemic:

i. N.C. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), imposing 25-day voter

registration deadlines;

ii. N.C. Gen. Stat. § 163-230.2(a), requiring requests for absentee ballots be

made by a form created by the State Board of Elections;

iii. N.C. Gen. Stat. § 163-230.2(a)(4), (f), to the extent that it limits the proof of

residency documents that voters must submit with their absentee ballot

request forms to only a North Carolina driver’s license number, special

identification card number, or the last four digits of his or her Social Security

number, and instead allow election officials to accept any proof of residency

document acceptable under the Help America Vote Act (HAVA);

iv. N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6), 163-

230.2(e)(4), 163-231(a), and 163-231(b)(1), imposing restrictions on 79

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assistance for absentee ballot request return, absentee ballot marking and

completion, and absentee ballot submission;

v. N.C. Gen. Stat. § 163-231(a) as amended by HB 1169, imposing the witness

certification requirement;

vi. N.C. Gen. Stat. § 163-227.6(c), requiring uniform hours in precincts; and

vii. N.C. Gen. Stat. § 163-42(b) as amended by HB 1169, requiring poll workers

to come from the county in which they serve.

(i)

Preliminarily and permanently enjoin Defendants from violating Plaintiffs’

constitutional and federal statutory rights with respect to any election in the state during

the COVID-19 pandemic.

(j)

Order the SBE Defendants to extend the voter registration deadline in N.C.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), until 5:00pm on the last Saturday of early

voting and the DOT and DHHS Defendants to process voter registrations online and

received in their offices up until and including 5:00pm on the last Saturday of early voting

during the COVID-19 pandemic.

(k)

Order Defendants to implement measures to ensure eligible North

Carolinians are able to vote absentee by mail, with respect to any election in the state during

the COVID-19 pandemic, including:

i. Expanding voter registration via online portals available through DHHS

services;

ii. Establishing contactless drop boxes for absentee ballots;

iii. Establishing a mechanism for requesting absentee ballots by phone; 80

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iv. Permitting election officials to accept any proof of residency document

acceptable under the Help America Vote Act (HAVA) as acceptable forms

of identification with absentee ballot requests;

v. Establishing mechanisms to cure deficient absentee ballot requests and

absentee ballots;

vi. Permitting mail-in absentee voters to cast a downloadable Federal Write-in

Absentee Ballot (“FWAB”), if their timely-requested absentee ballot does

not arrive in sufficient time to ensure the ballot will be counted;

vii. Establishing a more accessible, centralized way in which voters and

advocates can monitor precinct consolidation; and

viii. Permitting voters who for reason of blindness, disability, or an inability to

read or write, require assistance to return an absentee ballot request form,

mark and complete an absentee ballot, and/or submit an absentee ballot, to

obtain assistance from anyone who is not their employer or union

representative.

(l)

Order Defendants to implement a remedial plan to educate voters regarding

their options to register to vote and obtain and cast a ballot.

(m)

Retain jurisdiction to monitor Defendants’ compliance with this Court’s

judgment;

(n)

Grant Plaintiffs their reasonable costs and attorneys’ fees incurred in

bringing this action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and as otherwise

permitted by law; and 81

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(o)

Grant such other relief as this Court deems just and proper.

Dated: June 18, 2020.

Respectfully submitted,

/s/ Jon Sherman Jon Sherman D.C. Bar No. 998271 Michelle Kanter Cohen D.C. Bar No. 989164 Cecilia Aguilera D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email: jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org

/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition.org
jeff@southerncoalition.org
/s/ George P. Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392) Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email: george.varghese@wilmerhale.com joseph.yu@wilmerhale.com stephanie.lin@wilmerhale.com rebecca.lee@wilmerhale.com richard.ingram@wilmerhale.com

82 Case 1:20-cv-00457-WO-JLW Document 30 Filed 06/18/20 Page 82 of 83

CERTIFICATE OF SERVICE I certify that on the 18th day of June, 2020, the foregoing SECOND AMENDED COMPLAINT was served upon the parties through the Court’s ECF system.
/s/ Allison J. Riggs Allison J. Riggs
Case 1:20-cv-00457-WO-JLW Document 30 Filed 06/18/20 Page 83 of 83

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs,

vs.

Civil Action

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

No. 20-cv-457
PLAINTIFFS’ AMENDED MOTION FOR PRELIMINARY INJUNCTION

Defendants,

1

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PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPOREOF THE NORTH CAROLINA SENATE; TIMOTHY K. MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
Defendant-Intervenors.
Plaintiffs Democracy North Carolina (“DemNC”) and the League of Women Voters of North Carolina (“LWVNC” and, together with DemNC, the “Organizational Plaintiffs”), as well as Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Walter Hutchins, and Susan Schaffer (“Individual Plaintiffs”) (together, with the Organizational Plaintiffs, the “Plaintiffs”), hereby respectfully request, pursuant to Federal Rule of Civil Procedure 65(a)(1), that the Court issue a preliminary injunction preventing Defendants from enforcing the challenged provisions of North Carolina’s election code, Chapter 163 of the North Carolina General Statutes, and requiring Defendants to provide additional accommodations to safeguard voters’ rights during the November 3, 2020, general election in light of the COVID-19 pandemic.
As set forth in Plaintiffs’ First Amended Complaint, ECF No. 8, North Carolina’s current law and election
2
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administration impose unconstitutional burdens on the right to vote in violation of the First and Fourteenth Amendments, violate the unconstitutional conditions doctrine, violate Plaintiffs’ First Amendment associational rights, violate Plaintiffs’ rights to procedural due process, violate Section 208 of the Voting Rights Act, and violate Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The COVID-19 pandemic presents an unprecedented challenge to the upcoming November 3, 2020, general election. The experience of states that have already conducted their primaries has shown that the pandemic has deterred voters, strained election administrators’ finite resources, and ultimately disenfranchised countless citizens. Defendant the State Board of Elections anticipates an unprecedented, ten-fold increase in the use of mail-in absentee ballots relative to the 2016 general election and a drastic shortfall in available poll workers that threatens the operation of polling places. Yet, Defendants remain unprepared to manage that level of absentee mail-in voting or to adapt in-person voting to ensure both safety and equal access. These and other statutory provisions pose a grave
3
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threat to voters’ health and therefore severely burden the most fundamental right of U.S. citizenship, no matter how voters exercise it.
Preliminary injunctive relief is warranted—(1) Plaintiffs are likely to succeed on the merits of their claims; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction is in the public interest. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). Absent relief from this Court, voters will needlessly face great hardship and disenfranchisement in the November 3, 2020, general election.
Accordingly, Plaintiffs request that the Court preliminary enjoin Defendants from administering and enforcing for the November 3, 2020, general election:
i. N.C. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), imposing 25-day voter registration deadlines;
ii. N.C. Gen. Stat. § 163-230.2(a), requiring requests for absentee ballots be made by a form created by the State Board of Elections;
iii. N.C. Gen. Stat. § 163-230.2(a)(4), (f), to the extent that it limits the proof of residency
4
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documents that voters must submit with their absentee ballot request forms to only a North Carolina driver’s license number, special identification card number, or the last four digits of his or her Social Security number, and instead allow election officials to accept any proof of residency document acceptable under the Help America Vote Act (HAVA); iv. N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6), 163-230.2(e)(4), 163-231(a), and 163-231(b)(1), imposing restrictions on assistance for absentee ballot request return, absentee ballot marking and completion, and absentee ballot submission; v. N.C. Gen. Stat. § 163-231(a) as amended by HB 1169, Session Law 2020-17, 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, imposing the witness certification requirement; vi. N.C. Gen. Stat. § 163-227.6(c), requiring uniform hours in precincts; and
5
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vii. N.C. Gen. Stat. § 163-42(b) as amended by HB 1169, requiring poll workers to come from the county in which they serve.
Plaintiff further request that the Court preliminarily enjoin Defendants from violating Plaintiffs’ constitutional and federal statutory rights with respect to any election in the state for the November 3, 2020, general election.
Plaintiffs further request that the Court issue an order requiring the SBE Defendants to extend the voter registration deadline in N.C. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), until 5:00 pm on the last Saturday of early voting and the DOT and DHHS Defendants to process voter registrations online and received in their offices up until and including 5:00 pm on the last Saturday of early voting for the November 3, 2020, general election, and further order Defendants to implement measures to ensure eligible North Carolinians are able to vote in the state during the COVID-19 pandemic, including:
a. Expanding voter registration via online portals available through DHHS services;
b. Establishing contactless drop boxes for absentee ballots;
6
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c. Establishing a mechanism for requesting absentee ballots by phone;
d. Permitting election officials to accept any proof of residency document acceptable under the Help America Vote Act (HAVA) as acceptable forms of identification with absentee ballot requests;
e. Establishing mechanisms to cure deficient absentee ballot requests and absentee ballots;
f. Permitting mail-in absentee voters to cast a downloadable Federal Write-in Absentee Ballot (“FWAB”), if their timely-requested absentee ballot does not arrive in sufficient time to ensure the ballot will be counted;
g. Establishing a more accessible, centralized way in which voters and advocates can monitor precinct consolidation; and
h. Permitting voters who for reason of blindness, disability, or an inability to read or write, require assistance to return an absentee ballot request form, mark and complete an absentee ballot, and/or submit an absentee ballot, to
7
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obtain assistance from anyone who is not their employer or union representative. Plaintiffs further request the Court order Defendants to implement a remedial plan to educate voters regarding their options to register to vote and obtain and cast a ballot. This Motion is supported by the Memorandum of Law filed June 5, 2020, ECF No. 10, and accompanying declarations, and any additional submissions that may be considered by the Court.

Dated: June 18, 2020.

Respectfully submitted,

/s/ Jon Sherman Jon Sherman D.C. Bar No. 998271 Michelle Kanter Cohen D.C. Bar No. 989164 Cecilia Aguilera D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email:
jsherman@fairelectionsce nter.org mkantercohen@fairelectionscen ter.org caguilera@fairelectionscenter .org

/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition.o rg
jeff@southerncoalition. org
/s/ George P. Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392)

8

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Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email:
george.varghese@wilmerh ale.com joseph.yu@wilmerhale.com stephanie.lin@wilmerhale.co m rebecca.lee@wilmerhale.com rick.ingram@wilmerhale.com
9
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CERTIFICATE OF SERVICE I certify that on the 18th day of June, 2020, the foregoing AMENDED MOTION FOR PRELIMINARY INJUNCTION was served upon the parties through the Court’s ECF system.
/s/ Allison J. Riggs Allison J. Riggs
Case 1:20-cv-00457-WO-JLW Document 31 Filed 06/18/20 Page 10 of 10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457

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,

Intervenors,

Case 1:20-cv-00457-WO-JLW Document 32 Filed 06/18/20 Page 1 of 4

and REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, and NORTH CAROLINA REPUBLICAN PARTY,
Proposed Republican Committee Intervenors.
REPUBLICAN COMMITTEES’ MOTION TO INTERVENE Proposed Intervenor-Defendants the Republican National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), and North Carolina Republican Party (“NCRP”) (collectively the “Republican Committees”) move to intervene in the above-captioned case pursuant to Rule 24 of the Federal Rules of Civil Procedure in order to oppose Plaintiffs’ challenges to North Carolina election law. The Republican Committees respectfully request that the motion be granted for the reasons stated in the accompanying memorandum in support of this motion and accompanying Declarations from each of the proposed Intervenors. The Republican Committees also request that their motion be granted expedited consideration to ensure they can participate as parties in the preliminary injunction proceedings. Plaintiffs filed their preliminary injunction motion on June 5, 2020, and requested expedited consideration. See Doc. 9 at 7. Today, the Court entered an Order with a briefing schedule, which requires that briefs in opposition to Plaintiffs’ anticipated amended motion for preliminary injunction be filed by Friday, June 26 (Dkt. No. 29). The Republican Committees seek intervention into the case so that they can be heard as full parties in opposition to Plaintiffs’ motion. Accordingly, the Proposed Republican Committee Intervenors request that their motion be
Case 1:20-cv-00457-WO-JLW Document 32 Filed 06/18/20 Page 2 of 4

considered on an expedited basis that allows them to participate fully as parties in the preliminary injunction proceedings.

Dated: June 18, 2020

Respectfully submitted,

_/s/ R. Scott Tobin_____________________ R. Scott Tobin (N.C. Bar No. 34317) Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: stobin@taylorenglish.com
Bobby R. Burchfield (pro hac vice pending) Matthew M. Leland (pro hac vice pending) King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 bburchfield@kslaw.com mleland@kslaw.com
Counsel for the Republican Committees

Case 1:20-cv-00457-WO-JLW Document 32 Filed 06/18/20 Page 3 of 4

CERTIFICATE OF SERVICE I certify that on the 18th day of June, 2020, the foregoing Motion to Intervene, Memorandum and Declarations in Support of Motion to Intervene, and Answer was electronically served and filed with the Clerk of the Court using the CM/ECF system.
/s/ R. Scott Tobin R. Scott Tobin
Case 1:20-cv-00457-WO-JLW Document 32 Filed 06/18/20 Page 4 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs, vs.

Civil Action No. 20-cv-457

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

ANSWER TO AMENDED COMPLAINT BY THE REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, AND NORTH CAROLINA REPUBLICAN PARTY

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,

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Intervenors, and REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, and NORTH CAROLINA REPUBLICAN PARTY,
Proposed Republican Committee Intervenors.
REPUBLICAN COMMITTEE INTERVENORS’ ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
Intervenor-Defendants Republican National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), and the North Carolina Republican Party (“NCRP”) (“Republican Committee Intervenors”) answer the allegations in the Plaintiffs’ First Amended Complaint as follows:
ANSWER 1. The COVID-19 pandemic presents an unprecedented challenge to our nation. Caused by a novel coronavirus and transmitted by asymptomatic, otherwise-healthy individuals as well as the symptomatic, this disease threatens the health of millions of Americans, especially elderly people and those with pre-existing medical conditions. As infection and death rates continue to climb, the fallout from COVID-19 has severely strained health care systems, the economy, and all levels and branches of government. RESPONSE: Intervenor-Defendants admit that the COVID-19 pandemic has presented a challenge to our nation but deny that the challenge is unprecedented. Intervenor-Defendants lack
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knowledge or information sufficient to form a belief about the remaining allegations in Paragraph 1. To the extent Paragraph 1 contains additional allegations, Intervenor-Defendants deny them.
2. This public health crisis has also endangered the machinery of our democracy by threatening massive disruptions in election administration, especially in a presidential election year that was on track for exceptionally high registration rates and turnout. Many states have already taken drastic measures to counteract the spread of COVID-19 and ensure that eligible voters can cast their ballots safely. North Carolina, however, has failed to act: it has not altered its statutory electoral scheme in order to allow for safe and accessible voting. As a result, millions of North Carolinians will likely either lose their right to vote or be forced to compromise their health in order to access the franchise.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to whether many states “have already taken drastic measures to counteract the spread of COVID-19.” Intervenor-Defendants deny the remaining allegations in Paragraph 2 of the Complaint.
3. At present, North Carolina’s election code imposes numerous restrictions— on voter registration, mail-in absentee ballots, in-person early voting, and Election Day administration—that, in light of the COVID-19 pandemic, unduly burden Plaintiffs’ right to vote in violation of the First and Fourteenth Amendments. With respect to voter registration, the pandemic has already caused registration rates to plummet in comparison with previous election years. North Carolina election code and registration practices can be altered to address the voter registration crisis with reasonable accommodations that make registering to vote easier and safer during this public health crisis. For example, North Carolina law requires voters to submit their registration applications at least 25 days prior to the election, or else, register in-person at an early
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voting site, therefore potentially exposing themselves or their families to infection via COVID-19. By preventing voters from registering in the three weeks leading up to the election, the 25-day registration requirement unconstitutionally burdens the right to vote. Voters cannot be required by their government to choose between registering to vote and preserving their health. Likewise, online voter registration opportunities could be easily expanded to allow voters to register to vote from the safety of their home.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of Plaintiffs’ allegations regarding voter registration rates. The remaining allegations in Paragraph 3 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 3 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
4. Several aspects of North Carolina’s cumbersome absentee vote-by-mail regime are unconstitutional because they will require Plaintiffs to risk exposure to COVID- 19 and to violate public health social distancing requirements in order to successfully vote by mail. For example, North Carolina requires mail-in absentee voters to complete the ballot in the presence of two witnesses or a notary. To comply, the Individual Plaintiffs will need to expose themselves to individuals outside of their household, thereby risking their health. The two-witness requirement thus creates a severe and unjustified burden on Plaintiffs’ right to vote.
RESPONSE: Paragraph 4 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 4 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
5. Finally, certain restrictions on the administration of in-person voting, both during the one-stop absentee voting period (known more commonly as “early voting” and so identified
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hereinafter) and on Election Day, will produce unsafe conditions for voters. For example, North Carolina requires each county to maintain uniform hours across all early voting sites, regardless of the capacity and demand at each site. This statutory requirement, recently added in June 2018, resulted in a significant reduction in early voting sites in the 2018 general election by inflating costs through the addition of unnecessary hours. This will likewise result in reduced sites and days for early voting in the upcoming 2020 general election because counties will have to close numerous early voting sites to comply with the law and still stay within their budgets. On Election Day, moreover, a majority of poll workers must reside in the precinct where they serve. This “home precinct” requirement will exacerbate shortages of poll workers and lead to precinct consolidation. Both the uniform-hours requirement for early voting sites and the home-precinct requirement for Election Day poll workers will produce unsafe conditions by reducing the number of sites in which voters can cast an in-person vote, which will, in turn, result in long lines and large crowds, as seen in the recent Wisconsin primary election. Further, it is not possible for a state like North Carolina— where historically, the vast majority of voters choose to cast their ballot in person—to shift entirely to vote-by-mail methods in mere months. North Carolina simply lacks the infrastructure necessary to conduct an election predominantly by mail without overwhelming both county election administration systems and the local U.S. Postal Service infrastructure. Immediate steps must be taken to ensure that in-person voting opportunities are preserved and conducted in accordance with public health guidance.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of Plaintiffs’ allegations regarding whether the 2018 statutory requirement “resulted in a significant reduction in early voting sites in the 2018 general election by inflating costs through the addition of unnecessary hours,” whether the Wisconsin primary election involved
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“long lines and large crowds,” and whether the vast majority of North Carolina voters have historically voted in person. The remaining allegations in Paragraph 5 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 5 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
6. In short, with its high transmission and mortality rates, COVID-19 poses a risk to all voters, especially those who could develop severe complications like some of the Individual Plaintiffs. The pandemic has already decimated voter registration rates and third-party voter registration initiatives, and makes it impossible for voters to comply safely with certain requirements for mail-in absentee voting, including the two-witness or notary requirement. In addition, election officials anticipate severe shortages of poll workers, who justifiably fear contracting the disease, resulting in fewer polling sites. A number of states’ election officials, including in North Carolina, have already felt compelled to postpone primary and other elections by weeks or months in the face of this unprecedented public health emergency.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 6 of the Complaint. Intervenor-Defendants therefore deny the allegations.
7. As of the filing of this complaint, Defendants have failed to implement any election-related measures to mitigate the impact of the COVID-19 crisis on North Carolina’s upcoming general election and safeguard the voting rights of countless eligible North Carolina voters.1 This failure to act, leaving the current electoral structure in place, imposes an undue
1 Plaintiffs are aware of at least two bills that have been filed purporting to address a small number of the issues identified in this litigation. Plaintiffs have no basis to believe that either bill will be enacted into law, certainly not in a timely-enough fashion, and even if they were, those bills are entirely inadequate to address the constitutional violations implicated in this lawsuit.
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burden and an unconstitutional condition on the right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution and a violation of procedural due process. In addition, the State’s failure to accommodate the needs of high- risk voters and others violates the ADA and the Rehabilitation Act.
RESPONSE: Intervenor-Defendants deny that Defendants have “failed to implement any election-related measures to mitigate the impact of the COVID-19 crisis on North Carolina’s upcoming general election.” The remaining allegations in Paragraph 7 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 7 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
8. Judicial intervention is warranted now, in advance of the 2020 general election, to ensure that the State has adequate time to implement the measures necessary to ensure that the right to vote may be exercised safely during this global pandemic. North Carolina law sets forth an inflexible calendar of pre-election administrative steps and milestones. For example, mail-in absentee ballots, their container-return envelopes with witness certifications and signature blocks, and instruction sheets must be available for use 60 days in advance of a statewide general election and 50 days in advance of all other elections, which in this case would be September 4, 2020. See N.C. Gen. Stat. §§ 163- 227.10(a), 163-229(b), 163-229(c). This means that all the text and design for mail-in absentee ballots must be finalized well in advance of the 60th or 50th day before an election such that these materials can be timely printed, delivered, and distributed to voters. Moreover, in “emphasiz[ing] that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the Supreme Court has suggested that challenges to a state’s election administration should be brought as soon as possible. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).
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RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. §§ 163-227.10(a), 163229(b), 163-229(c) as the best evidence of their contents. The remaining allegations in Paragraph 8 of the Complaint constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 8 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
9. Election administration plans for the June 23, 2020 Republican second primary in Congressional District 112 have unfortunately been irreversibly set in motion. But it is not too late to safeguard the right to vote in November’s general election, when the pandemic is expected to resurge and once again threaten the functioning of our democracy.
RESPONSE: Intervenor-Defendants refer to the March 20, 2020 Emergency Executive Order from the North Carolina State Board of Elections as the best evidence of its contents. The remaining allegations in Paragraph 9 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 9 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
JURISDICTION AND VENUE 10. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the U.S. Constitution and the laws of the United States and seeks equitable and other relief for the deprivation of constitutional and federal statutory rights under color of state law.
2 N.C. State Bd. of Elections, Emergency Exec. Order (Mar. 20, 2020), https://s3.amazonaws.com/ dl.ncsbe.gov/State_Board_Meeting_Docs/Orders/Executive%20Director%20Orders/Order_2020 -03-20%20.pdf (rescheduling the Republican second primary in Congressional District 11 from May 12, 2020, to June 23, 2020).
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RESPONSE: Paragraph 10 of the Complaint constitutes a legal conclusion to which no

response is required. Intervenor-Defendants deny that Plaintiffs are entitled to any relief—legal,

equitable, or otherwise.

11. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C.

§ 1988 and 28 U.S.C. § 1920.

RESPONSE: Paragraph 11 of the Complaint constitutes a legal conclusion to which no

answer is required.

12. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201

and 2202.

RESPONSE: Paragraph 12 of the Complaint constitutes a legal conclusion to which no

answer is required. Intervenor-Defendants deny that Plaintiffs are entitled to any relief—legal,

equitable, or otherwise.

13. Venue is appropriate in the Middle District of North Carolina, under 28 U.S.C. §

1391(b)(1).

RESPONSE: Paragraph 13 of the Complaint constitutes a legal conclusion to which no

answer is required.

Plaintiffs 14.

PARTIES Plaintiff Democracy North Carolina (“Democracy NC”) is a nonpartisan, nonprofit

organization dedicated to increasing voter access and participation and reducing the corrupting

role of money in politics through research, organizing, and advocacy. Democracy NC’s volunteers,

who are registered North Carolina voters across every region of the state, form grassroots

coalitions and are advocates in communities throughout the state, including Wake County,

Edgecombe and Nash Counties (the “Twin Counties”), Alamance County, Mecklenburg County,

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Fayetteville, Wilmington, Winston-Salem, Asheville, New Bern, Salisbury and Greenville. Democracy NC works for pro-democracy reforms that strengthen the enforcement of election laws, protect voting rights, and improve government accountability and ethics. Democracy NC engages in substantial election protection efforts to ensure that voters are able to access the ballot, and spends substantial time and effort producing voter guides to educate voters about the candidates that will be on their ballots. Democracy NC advocates spend thousands of hours fighting for more early voting sites and times to ensure that all voters have easy access to the franchise. In previous elections, Democracy NC has also run rides-to-the-polls programs to ensure that voters who lacked transportation and could not or did not want to use mail-in absentee voting could nonetheless cast a ballot. Through original research, policy advocacy, grassroots organizing, civic engagement, and leadership training, Democracy NC seeks to achieve a fair and representative political system and advance a just and equitable North Carolina.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 14 of the Complaint
15. Plaintiff the League of Women Voters of North Carolina (“LWVNC”) is a nonpartisan community-based organization, formed in 1920, immediately after the enactment of the Nineteenth Amendment to the U.S. Constitution granting women's suffrage. The LWVNC is dedicated to encouraging its members and the people of North Carolina to exercise their right to vote as protected by the U.S. Constitution and the Voting Rights Act of 1965. The LWVNC’s mission is to promote political responsibility through informed and active participation in government and to act on selected governmental issues. The LWVNC impacts public policies, promotes citizen education, and makes democracy work by, among other things, removing unnecessary barriers to full participation in the electoral process. Currently the LWVNC has 17
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local leagues and over 1,912 members, each of whom, on information and belief, is a registered voter in North Carolina. The LWVNC is affiliated with the League of Women Voters of the United States, which was also founded in 1920. The LWVNC began as an organization focused on training women voters, and has evolved into an organization concerned with educating, advocating for, and empowering all North Carolinians. With members in almost every county in the state, the LWVNC’s local leagues are engaged in numerous activities, including hosting public forums and open discussions on important issues to the community. Individual League members invest substantial time and effort in voter training and civic engagement activities, such as voter registration assistance and get-out-the-vote (GOTV) efforts leading up to elections, including during the early voting period. The LWVNC has developed a First Time Voter Engagement Program, which partners with local election boards and schools to encourage young voters to register to vote. The LWVNC also devotes substantial time and effort to ensuring that government at every level works as effectively and as fairly as possible in implementing voting regulations and procedures. To do so, the LWVNC advocates to make elections more transparent, to support a strong and diverse judiciary, and to urge for appropriate government oversight.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 15 of the Complaint
16. Plaintiff Donna Permar is a U.S. Citizen and a Durham County resident who is completely blind and lives with her spouse who is also completely blind. Ms. Permar is a registered voter who is eligible to vote in the November 2020 general election. Ms. Permar only feels confident voting in-person and thus relies on polling places being open and accessible by public transportation. Ms. Permar must utilize an ADA-compliant machine in order to vote, because she cannot fill out an absentee ballot with confidence or privacy.
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RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 15 of the Complaint.
17. Plaintiff John P. Clark is a U.S. citizen and a resident of the town of Apex in Wake County, North Carolina. He is 79 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. He has severe chronic obstructive pulmonary disease (“COPD”) and has lived with this disease, which severely limits his activities, for the last 12 years. Whenever he is active at all, walking around or working in the yard, he carries an oxygen tank. He can walk only two blocks, even with oxygen. He has also become more susceptible to exacerbated bouts of pneumonia, contracting it about four times in the last six years. The most recent episode was in January 2020, which has caused a further deterioration of his respiratory condition. COPD makes him more vulnerable to severe complications or even death from COVID19 and, therefore, it is too high a risk for him to vote in person. It is a necessity that he vote by absentee ballot in the November general election. To avoid any risk of contracting COVID-19, Mr. Clark has been quarantined along with his wife for approximately the last eight weeks. He lives with his wife, and the only people who have entered their house during the lockdown have been three service people whom he completely avoids. He and his wife never leave their property except for necessary medical appointments, short walks, and occasional drives including a weekly trip to the grocery store, during which Mr. Clark stays in the vehicle. He has voted in every presidential election since 1968, and votes regularly in state and local elections. He wants to vote in the November 2020 general election and has already applied for his mail-in absentee ballot. His wife could serve as one witness for his mail-in absentee ballot, but Mr. Clark could not safely obtain a second witness, given his COPD and the risk COVID-19 poses to Mr. Clark’s life. Each person he interacts with poses an additional, serious risk to his life. Given the two-witness-
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signature requirement, he does not know how he can safely cast a ballot by mail, and he cannot safely vote in person.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 17 of the Complaint.
18. Margaret B. Cates is a U.S. citizen and a resident of the Town of Faison in Duplin County, North Carolina. She is 85 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. She lives alone and has had chronic fatigue syndrome for the last 27 years since 1993. This is a severely debilitating disease and has severely curtailed Ms. Cates’ ability to move about and be active. Today, she is in poor health, having suffered several falls recently and a urinary tract infection that she has been fighting for a year. As a result, she has been weak, using a walker in the house, and bedridden for twelve hours at night and for two in the afternoon. Ms. Cates has not left her house in three months, except to go to a doctor's appointment right before March and before the social distancing guidelines were put in place. She has voted in every presidential election since 1956, and also votes in many state and local elections. She wants to vote in the November 2020 general election, and she has never voted by mail. Under the current North Carolina election procedures, there is no way for Ms. Cates to request an absentee ballot online. If this option were available, with some assistance, she could and would request a ballot that way. She would also be able to request a ballot by phone call. Her nearest family member is her son, who lives a two-hour drive away in Southern Pines, North Carolina. Without an online or phone option to request an absentee ballot, Ms. Cates cannot request an absentee ballot on her own and would depend on others to mail or otherwise provide it to her. As to the two-witness requirement, Ms. Cates’ assistant—who comes to the house to help with daily tasks and is the only person to enter Ms. Cates’ home—could serve as one witness for
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her absentee ballot, but Ms. Cates cannot take the additional risk of securing a second witness given her poor health and debilitated state. Each additional person she interacts with poses a risk to her life. Voting in person is not an option for her, as it would pose too much of a risk to her health. Given the current rules for voting by mail, she does not know how she will safely cast a ballot by mail in the upcoming election.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 18 of the Complaint.
19. Lelia Bentley is a U.S. Citizen and a 62-year-old registered voter in Wilkesboro who lives on her own. She has been diagnosed with hypertension, which she controls through diet, exercise, and meditation. About once a year, Ms. Bentley develops a cold, which often progresses to include symptoms like sinus and chest congestion, a hacking cough, and shortness of breath. As a result of her medical history, she has been self-isolating at her home since March 10. Consistent with the Governor's stay-at-home order, she does not leave her home unless absolutely necessary. Since March 15, if she has needed groceries, she has ordered them online and had them delivered. Ms. Bentley does not know if she can satisfy the two-witness requirement in order to request and cast an absentee mail-in ballot. She has observed some of her neighbors breaking social distancing guidelines, including hosting social gatherings in their homes. Other neighbors are themselves self-isolating in order to protect elderly family members and she worries that, even if they would agree to be her witnesses, she could accidentally expose them to the virus, in spite of the precautions she has been taking. She does not know if her remaining neighbors have been taking appropriate precautions to prevent contracting the novel coronavirus, and therefore does not feel safe asking them to be witnesses. Even if she can obtain two witnesses, she does not know if she will risk contact with them in order to vote because she fears that it will lead her to contract
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COVID-19. Ms. Bentley will not vote in person because that would be too much of a risk to her health. She does not know what she will do if she cannot vote by mail.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 19 of the Complaint.
20. Regina Whitney Edwards is a U.S. citizen and resident of Durham County. She is 30 years old and a registered North Carolina voter who is eligible to vote in the November 2020 general election. She is at high risk of developing severe illness from COVID-19 because she has a serious pre-existing medical condition, type 1 diabetes. She has had type 1 diabetes for 21 years. To protect her health from the impact of COVID-19, she has remained at home since mid-March and has not seen another person except her partner, whom she lives with. She is uncomfortable leaving her home or being in proximity to people other than her partner. She has voted in multiple elections in North Carolina. But for the threat of COVID-19, she would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, she is not willing to vote in person during the November 2020 general election, and instead would like to vote by mail-in absentee ballot to protect her health. Ms. Edwards cannot safely comply with North Carolina’s two-witness requirement. Her partner is available to serve as the first witness, but she is not willing to jeopardize her physical well-being by asking another person to serve as the second witness. Although she strongly wishes to vote in the November 2020 general election, she will not do so if the two-witness requirement remains in effect.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 20 of the Complaint.
21. Robert K. Priddy II is a U.S. citizen and a resident of Brunswick County. He is a 70-year-old registered North Carolina voter who is eligible to vote in the November 2020 general
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election. He is at high risk of developing severe illness from the novel coronavirus because he has several serious pre-existing health conditions, and because of his age. In 2010, he received a kidney transplant. To ensure that his body does not reject the transplant, he takes medication that suppresses his immune system. The medication also causes borderline diabetic issues, so he receives treatment for diabetes. To protect his health, Mr. Priddy’s doctor has advised him to stay home and avoid contact with people outside his household. He has remained at home since midMarch. He relies on his wife to shop for groceries and run other errands. The only time he has gone outside since mid- March was to pick up prescriptions from a drive-thru pharmacy, during which he remained in his vehicle without interacting directly with the pharmacist. He is uncomfortable leaving his home or being in close proximity to people other than his wife. He has voted in numerous elections in North Carolina. But for the threat of COVID-19, he would vote in the November 2020 general election in person. Because of the pandemic and the health risks posed by in-person voting, he is not willing to vote in person in the November 2020 general election. He would like to vote by mail-in absentee ballot, but he cannot safely comply with North Carolina’s two-witness requirement. His wife is available to serve as the first witness, but he would have to jeopardize his physical well-being to ask another person to serve as the second witness. Although he strongly wishes to vote in the November 2020 general election, his health will be at risk if the two-witness requirement remains in effect, and he is not sure he will be able to vote.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 21 of the Complaint.
22. Walter Hutchins is a U.S. citizen and a resident of Wilmington County. He is a 91year-old registered North Carolina voter who is eligible to vote in the November 2020 general election. He is legally blind and lives in a nursing home. Due to his age, he is at very high risk of
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developing severe illness from COVID-19. To keep residents safe, the nursing home where he lives has been under lockdown since mid-March. No visitors, including family members, are allowed. Mr. Hutchins has voted in numerous elections in North Carolina. His wife, who does not live at the nursing home, has helped him fill out his ballot in previous elections. However, because of the lockdown and the COVID-19 pandemic, he has not seen her since mid-March and is uncertain whether she will be able to help him with filling out his ballot in the upcoming November election. He has only voted in-person for elections, and thus is unfamiliar with the absentee ballot process. The nursing home does not have procedures set up to assist voters who are blind. Furthermore, under North Carolina law, the nursing home staff cannot assist Walt fill out or submit an absentee ballot. He would like to vote in the upcoming election by mail, but is unable to request an absentee ballot through the mail because he is legally blind, and would like to do so by phone. Although he strongly wishes to vote in the November election, he is not sure how he will be able to if the restrictions on requesting absentee ballots and restrictions on nursing home assistance in filling out and submitting absentee ballots remain in effect.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 22 of the Complaint.
23. Susan Schaffer is a U.S. citizen and a Durham County resident who volunteers in her community assisting eligible people with registering to vote, requesting absentee ballots, as well as completing their absentee ballots. In the past, Mrs. Schaffer has assisted voters at assisted living facilities and other locations that are now prohibited spaces for people seeking to assist voters with their absentee ballot request forms if they are not a near relative or a member of a multi-partisan assistance team (“MAT”). Mrs. Schaffer serves as an intermediary for many voters who are not familiar with the absentee ballot process or who otherwise are not eligible for
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assistance under the current state of the law as created by Senate Bill 683. Thus, these prohibitions severely burden the right to vote of all of the voters that Mrs. Schaffer would otherwise be able to assist and prevent her from providing that assistance as a volunteer for an organization that has among its core missions helping voters gain access to the ballot box, thereby impairing her fundamental First Amendment right of association and right to free speech.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 23 of the Complaint. Defendants
24. Defendant North Carolina State Board of Elections is the agency responsible for the administration of the election laws of the State of North Carolina.
RESPONSE: Intervenor-Defendants admit that the North Carolina State Board of Elections is the agency responsible for the administration of the election laws of the State of North Carolina.
25. Defendant Damon Circosta is the Chair of the North Carolina State Board of Elections. Mr. Circosta is sued in his official capacity.
RESPONSE: Intervenor-Defendants admit that Defendant Damon Circosta is the Chair of the North Carolina State Board of Elections. The remaining allegation in Paragraph 25 of the Complaint constitute a legal conclusion to which no response is required.
26. Stella Anderson is the Secretary of the North Carolina State Board of Elections. Ms. Anderson is sued in her official capacity.
RESPONSE: Intervenor-Defendants admit that Stella Anderson is the Secretary of the North Carolina State Board of Elections. The remaining allegation in Paragraph 26 of the Complaint constitute a legal conclusion to which no response is required.
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27. Ken Raymond is a Member of the North Carolina State Board of Elections. Mr. Raymond is sued in his official capacity.
RESPONSE: Intervenor-Defendants admit that Ken Raymond is a Member of the North Carolina State Board of Elections. The remaining allegation in Paragraph 27 of the Complaint constitute a legal conclusion to which no response is required.
28. Jeff Carmon III is a Member of the North Carolina State Board of Elections. Mr. Carmon is sued in his official capacity.
RESPONSE: Intervenor-Defendants admit that Jeff Carmon III is a Member of the North Carolina State Board of Elections. The remaining allegation in Paragraph 28 of the Complaint constitute a legal conclusion to which no response is required.
29. David C. Black is a Member of the North Carolina State Board of Elections. Mr. Black is sued in his official capacity.
RESPONSE: Intervenor-Defendants admit that David C. Black is a Member of the North Carolina State Board of Elections. The remaining allegation in Paragraph 29 of the Complaint constitute a legal conclusion to which no response is required.
30. Defendant Karen Brinson Bell is the Executive Director of the North Carolina State Board of Elections. Ms. Brinson is sued in her official capacity.
RESPONSE: Intervenor-Defendants admit that Karen Brinson Bell is the Executive Director of the North Carolina State Board of Elections. The remaining allegation in Paragraph 30 of the Complaint constitute a legal conclusion to which no response is required.
31. The North Carolina Department of Transportation is the agency that implements the online voter registration system in the State of North Carolina.
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RESPONSE: Intervenor-Defendants admit that the North Carolina Department of Transportation is the agency that implements the online voter registration system in the State of North Carolina.
32. J. Eric Boyette is the Secretary of the North Carolina Department of Transportation. Mr. Boyette is sued in his official capacity.
RESPONSE: Intervenor-Defendants admit that J. Eric Boyette is the Secretary of the North Carolina Department of Transportation. The remaining allegation in Paragraph 31 of the Complaint constitute a legal conclusion to which no response is required.
33. The North Carolina Department of Health and Human Services is the agency that administers online public benefits renewal in the State of North Carolina.
RESPONSE: Intervenor-Defendants admit that the North Carolina Department of Health and Human Services is the agency that administers online public benefits renewal in the State of North Carolina.
34. Dr. Mandy Cohen is the Secretary of the North Carolina Department of Health and Human Services. Dr. Cohen is sued in her official capacity.
RESPONSE: Intervenor-Defendants admit that Dr. Mandy Cohen is the Secretary of the North Carolina Department of Health and Human Services. The remaining allegation in Paragraph 34 of the Complaint constitute a legal conclusion to which no response is required.
STATEMENT OF FACTS I. The COVID-19 Pandemic
A. COVID-19 35. In December 2019, health officials in mainland China detected a novel coronavirus, SARS-CoV-2, which causes a disease known as COVID-19. On January 30, 2020, the World Health Organization (“WHO”) declared COVID-19 to be a Public Health Emergency of
20
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International Concern. On March 11, 2020, the WHO declared that it had become a pandemic. COVID-19 has now spread throughout the world, including to every state in the United States and to every county in North Carolina.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 35 and therefore deny them.
36. The novel coronavirus that causes COVID-19 continues to spread at an unprecedented pace around the world and within the United States. As of June 4, 2020, there were 1,842,101 confirmed cases in the United States, and there have been 107,029 deaths nationwide.3 As of June 4, 2020, the North Carolina Department of Health and Human Services had confirmed 31,966 positive cases of coronavirus and 960 deaths in North Carolina.4
RESPONSE: Intervenor-Defendants refer to the North Carolina Department of Health and Human Service’s online dashboard as the best evidence of its contents. Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 36 and therefore deny them.
37. COVID-19 appears to be much more contagious than other respiratory illnesses, such as influenza, SARS, or MERS, in significant part because of its capacity for asymptomatic transmission, and substantially more lethal than influenza.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 37 and therefore deny them.
3 Coronavirus Disease 2019 (COVID-19), Cases in the U.S., CDC, https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated June 4, 2020). 4 COVID-19 Response, COVID-19 North Carolina Dashboard, NCDHHS, https://www.ncdhhs. gov/divisions/public-health/covid19/covid-19-nc-case-count (last updated June 4, 2020, at 10:45pm).
21
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38. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are at higher risk of severe complications and death from COVID-19 if they are 65 years old or older or have underlying health conditions and diseases, including chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity (body mass index (“BMI”) of 40 or higher), diabetes, chronic kidney disease undergoing dialysis, liver disease, and other health conditions that suppress immune systems like HIV/AIDS.5 The CDC’s website, relying upon research from the National Center for Immunization and Respiratory Diseases (“NCIRD”), Division of Viral Diseases, notes that immunocompromised individuals are at severe risk from COVID-19: “Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications.”6
RESPONSE: Intervenor-Defendants refer to the Center for Disease Control’s website as the best evidence of its contents. Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 38 and therefore deny them.
39. Severe COVID-19 cases can cause a wide variety of secondary infections and pathologies, including but not limited to: pneumonia, acute respiratory distress syndrome, kidney failure, liver failure, strokes, heart attacks, cardiac inflammation, and gastrointestinal infections,
5 Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html (last updated May 14, 2020). 6 Id.
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among others.7 Furthermore, everyone is at some risk of severe complications and death from COVID-19, as health officials have recently associated COVID-19 with pulmonary embolism and stroke in younger patients without known risk factors8 and subsequent inflammatory disease in young children.9 In critical cases, some patients need to be intubated and put on a ventilator. Many critical care patients ultimately die. There is also evidence that individuals of color are dying of COVID-19 at a higher rate than other demographic groups.10
RESPONSE: Intervenor-Defendants refer to the cited news articles as the best evidence of their contents. Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 39 and therefore deny them.
40. The CDC has warned that asymptomatic COVID-19-positive individuals can transmit the disease to others.11 Studies have confirmed this.12 As a result, individuals can spread the disease for a week or more before realizing they are infected, facilitating rapid contagion.

7 Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious rampage through the body, from brain to toes, SCIENCE (Apr. 17, 2020), https://www.sciencemag.org/news/ 2020/04/how-does-coronavirus-kill-clinicians-trace-ferocious-rampage-through-body-brain-toes.

8 Robert Glatter, M.D., Why is COVID-19 Coronavirus Causing Strokes in Young And MiddleAged People?, FORBES (Apr. 27, 2020), https://www.forbes.com/sites/robertglatter/2020/04/27/ why-is-covid-19-coronavirus-causing-strokes-in-young-and-middle-aged-people/#598e78fe34df.

9 Pam Belluck, New Inflammatory Condition in Children Probably Linked to Coronavirus, Study Finds, N. Y. TIMES (May 13, 2020), https://www.nytimes.com/2020/05/13/health/coronaviruschildren-kawasaki-pmis.html.

10 Shelby Lin Erdman, Black Communities Account for Disproportionate Number of Covid-19 Deaths in the US, study finds, CNN (May 6, 2020), https://www.cnn.com/2020/05/05/ health/coronavirus-african-americans-study/index.html.

11 Coronavirus 2019 (COVID-19), Prevent Getting Sick: How COVID-19 Spreads, CDC, https:// www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated Apr. 13, 2020).

12 Mary Van Beusekom, Studies profile lung changes in asymptomatic COVID-19, viral loads in

patient samples, CTR. FOR INFECTIONS DISEASE RESEARCH & POL’Y, UNIV. OF MINN. (Feb. 25,

2020),

http://www.cidrap.umn.edu/news-perspective/2020/02/studies-profile-lung-changes-

asymptomatic-covid-19-viral-loads-patient.

23

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Currently, there are no therapeutic treatments or vaccinations that have been shown to significantly alter the trajectory of the COVID-19 outbreak. Leading epidemiology experts anticipate that the pandemic will continue into fall and winter of 2020, and potentially well into 2021.
RESPONSE: Intervenor-Defendants refer to the cited academic article and material from the CDC as the best evidence of their contents. Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 40 and therefore deny them.
B. North Carolina’s Response to COVID-19 41. In North Carolina, Governor Cooper declared a State of Emergency on March 10, 2020, which remains in effect as of the date of this filing. Within a week thereafter, the Governor imposed social distancing guidelines for individuals and businesses, closed public schools, and prohibited mass gatherings. RESPONSE: Intervenor-Defendants admit that Governor Cooper issued Executive Order No. 116 on March 10, 2020 and refers to that order as the best evidence of its contents. IntervenorDefendants deny all remaining allegations in Paragraph 41 of the Complaint. 42. Governor Cooper has announced a three-phase plan to slowly ease restrictions in North Carolina that will depend on whether North Carolina has successfully met key metrics regarding infection in the state.13 On May 5, 2020, Governor Cooper issued an executive order modifying North Carolina’s stay at home order and transitioning the state to “Phase 1” of slowly
13 Press Release, North Carolina Office of the Governor, Governor Extends Stay At Home Order Through May 8, Plans Three Phase Lifting of Restrictions Based on Virus Trends (Apr. 23, 2020), https://governor.nc.gov/news/governor-extends-stay-home-order-through-may-8-plans-threephase-lifting-restrictions-based.
24
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easing certain COVID-19 restrictions.14 This order advised North Carolinians to maintain six-feet social distancing from non-family or household members and encouraged high risk individuals to stay home and travel only for “absolutely essential purposes.”15 On May 20, 2020, the Governor issued an order moving North Carolina into “Phase 2” and superseding the Phase 1 order.16 The Phase 2 Order notes that “the risk of contracting and transmitting COVID-19 is higher in settings that are indoors, where air does not circulate freely and where people are less likely to maintain social distancing by staying six (6) feet apart,” and “very strongly encourage[s]” individuals at high risk of severe illness, including those 65 years or older and with underlying medical conditions, to stay home and travel only for “absolutely essential purposes.”17 It maintains the prior guidance that individuals maintain at least six feet of social distancing from other individuals, and requires businesses to limit occupancy and take other measures promoting social distancing. It also encourages individuals, including restaurant workers and personal care patrons, to wear face coverings. Mass gatherings of more than 10 people indoors and 25 people outdoors remain prohibited.18
RESPONSE: Intervenor-Defendants admit that Governor Cooper has issued executive orders related to COVID-19, and refer to those orders as the best evidence of their content. Intervenor-Defendants deny all remaining allegations in Paragraph 42 of the Complaint.
14 Governor Roy Cooper, Exec. Order No. 138 (May 5, 2020), https://files.nc.gov/governor/ documents/files/EO138-Phase-1.pdf. 15 Id. 16 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prod-media.s3. amazonaws.com/files/eo141-phase-2-1590009188.pdf. 17 Id. 18 Id.
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43. The Governor has also issued an executive order allowing non-profit corporations incorporated under the laws of the State of North Carolina to vote on matters by electronic balloting to “prevent members and directors from having to gather in a place, and thereby to promote social distancing and the mitigation of the spread of COVID-19.”19
RESPONSE: Intervenor-Defendants admit that Governor Cooper issued Executive Order No. 136 and refer to that order as the best evidence of its contents. Intervenor-Defendants deny all remaining allegations in Paragraph 43 of the Complaint.
44. The DHHS Defendants similarly recommend that individuals “put distance between yourself and other people” and advise, “[t]he very best evidence on reducing the spread is to maintain social distance and stay at home.”20
RESPONSE: Intervenor-Defendants admit that the DHHS have made health recommendations available on its website and refer to those recommendations as the best evidence of their content. Intervenor-Defendants deny all remaining allegations in Paragraph 44 of the Complaint.
45. These measures are far from temporary and similar measures will likely be required for the remainder of 2020. Governor Cooper’s current Phase 2 executive order notes that “it may be necessary to reinstate certain restrictions eased by this Executive Order,”21 and, in any event,
19 Governor Roy Cooper, Exec. Order. No. 136 (Apr. 24, 2020), https://files.nc.gov/governor/ documents/files/EO136-Nonprofit-Corp.pdf. 20 COVID-19 Response, Individuals and Families, NCDHHS, https://www.ncdhhs.gov/divisions/ public-health/covid19/individuals-and-families (last accessed May 19, 2020). 21 Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prod-media.s3. amazonaws.com/files/eo141-phase-2-1590009188.pdf.
26
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even the final “Phase 3” guidelines encourage social distancing and minimizing exposure, and any spike in infections may require tightening restrictions again.22
RESPONSE: Intervenor-Defendants admit that Governor Cooper has issued Executive Order No. 141 and refer to that order as the best evidence of its contents. Intervenor-Defendants deny all remaining allegations in Paragraph 45 of the Complaint.
46. Epidemiologists and infectious disease specialists have already concluded that there will very likely be a COVID-19 resurgence in the United States this fall. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said a second wave of infections in the United States is “inevitable.”23 South Korea, Germany, and China are already seeing a resurgence of COVID-19 after loosening restrictions in response to declining new COVID-19 cases. Pointing to the spread of COVID-19 cases in southern hemisphere countries as those regions enter their winter seasons, Dr. Fauci remarked, “And if, in fact, they have a substantial outbreak, it will be inevitable that we need to be prepared that we’ll get a cycle around the second time.”24 He concluded, “[W]e really need to be prepared for another cycle.”25 Furthermore, experts from the Harvard T.H. Chan School of Public Health’s Center for
22 Id. 23 Miriam Berger et al., Drug trial shows modest benefits in treating coronavirus, Fauci says, WASH. POST (Apr. 20, 2020), https://www.washingtonpost.com/world/2020/04/29/coronaviruslatest-news/; see also Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, WHITE HOUSE (Mar. 25, 2020), https://www. whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence-memberscoronavirus-task-force-press-briefing-11/. 24 Id. 25 Id.
27
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Communicable Disease Dynamics warned that, to avoid exceeding hospital critical care capacities, prolonged or intermittent social distancing may be necessary into 2022.26
RESPONSE: Intervenor-Defendants admit that Dr. Anthony Fauci has made statements to the press regarding the likelihood of a second wave of infections and refer to those statements as the best evidence of their contents. Intervenor-Defendants lack knowledge or information sufficient to form a belief as to whether South Korea, Germany, and China are experiencing a resurgence of COVID-19. Intervenor-Defendants deny all remaining allegations in Paragraph 46 of the Complaint.
C. Inadequacies in North Carolina’s Administration of the Upcoming 2020 General Election in Light of the COVID-19 Pandemic
47. The general election for all federal offices, including the presidential election, will be held on November 3, 2020. COVID-19 will have an unprecedented impact on this upcoming election. Even before the COVID-19 pandemic, the Brookings Institution predicted that “turnout in 2020 could break all records and test our election machinery as it has never been tested before.”27 Other experts also anticipate record-breaking turnout in the 2020 presidential election.28

26 Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period, SCIENCE (Apr. 14, 2020), https://science.sciencemag.org/content/early/ 2020/04/24/science.abb5793.

27 William A. Galston, What does high voter turnout tell us about the 2020 elections?, BROOKINGS INST. (Nov. 20, 2019), https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-high-voterturnout-tell-us- about-the-2020-elections/.

28 See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. NEWS & WORLD REPORT (Sept. 20,

2019),

https://www.usnews.com/news/elections/articles/2019-09-20/experts-predict-huge-

turnout-in-2020; Nate Cohn, Huge Turnout Is Expected in 2020. So Which Party Would Benefit?,

N.Y. TIMES (July 15, 2019), https://www.nytimes.com/2019/07/15/upshot/2020-election-turnout-

analysis.html; Ronald Brownstein, Brace for a Voter-Turnout Tsunami, THE ATLANTIC (June 13,

2019), https://www.theatlantic.com/politics/archive/2019/06/2020-election-voter-turnout-could-

be-record-breaking/591607/.

28

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RESPONSE: Intervenor-Defendants admit that the Brookings Institution and other cited news organizations have speculated about voter turnout in the upcoming 2020 presidential election and refer to those statements as the best evidence of their contents. Intervenor-Defendants deny all remaining allegations in Paragraph 47 of the Complaint.
48. North Carolina’s election laws and procedures are not designed to facilitate safe, fair, and free elections during such a public health crisis, and the legislature has failed to take action to remedy this situation. Given the rapidly spreading infection, North Carolina’s current election laws will force voters to choose between exposing themselves to severe risks to their health and exercising their constitutionally-protected right to vote.
RESPONSE: Intervenor-Defendants deny that the legislature has failed to take action in response to COVID-19. The remaining allegations in Paragraph 48 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
49. The inadequacies of North Carolina’s election laws and procedures to facilitate safe, free, and fair voting during a pandemic have not gone unnoticed by state and county election officials. On March 26, 2020, Defendant Karen Brinson Bell, Executive Director of the North Carolina State Board of Elections, wrote to Governor Cooper and the leadership in North Carolina’s General Assembly requesting statutory changes to address the impact of the COVID19 pandemic on North Carolina’s upcoming elections.29 Among other recommendations, Defendant Bell requested (i) expanding options for voters to submit mail-in absentee ballot requests beyond the current mail-only option to enable requests by fax, email, and an online portal;
29 Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1).
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(ii) establishing a fund to pay for postage for returned absentee ballots; (iii) reducing or eliminating the requirement that two witnesses sign an absentee mail container envelope in order for the ballot to be counted; (iv) lifting the requirement that a majority of Election Day poll workers reside in the precinct in which they work; and (v) lifting the uniformity requirement for early voting sites, days and hours. In a follow-up letter sent April 22, 2020, Defendant Bell emphasized that changes were required immediately during the April 28 legislative session of the General Assembly in order to be effective for North Carolina’s 2020 elections, including the 2020 general election.30
RESPONSE: Intervenor-Defendants admit that Defendant Karen Brinson Bell sent letters to Governor Cooper and the leadership in North Carolina’s General Assembly and refer to those letters as the best evidence of their contents. Intervenor-Defendants deny all remaining allegations in Paragraph 49 of the Complaint.
50. On April 27, 2020, dozens of county board of elections officials from eleven counties in North Carolina’s 11th Congressional District similarly issued an “urgent request” of North Carolina’s legislators to protect upcoming elections.31 They warned that regular poll workers were “reluctant to serve” during the pandemic given that a large percentage of them are elderly and at higher risk of severe complications and death from COVID-19. These county officials requested that the legislators eliminate the requirement that a majority of poll workers reside in the precinct in which they serve and instead permit officials to recruit poll workers from anywhere in the entire county.
30 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2). 31 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 29, 2020) (Exhibit 3).
30
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RESPONSE: Intervenor-Defendants admit that county board of elections officials sent a letter to North Carolina’s legislators on April 27, 2020 and refer to that letter as the best evidence of its contents. Intervenor-Defendants deny all remaining allegations in Paragraph 50 of the Complaint.
D. Voter Registration 51. Those eligible to vote in North Carolina can register in person, by mail, or, under some circumstances, online with the Department of Motor Vehicles (“DMV”), a division of Defendant the North Carolina Department of Transportation.32 To register by mail, eligible voters can download a voter registration form from the State Board of Elections website and then print, complete, and sign the form. Voters cannot submit this form electronically and they must mail in the original form with a wet-ink signature to the local county board of elections. See N.C. Gen. Stat. § 163-82.6(c). Voters must also include their drivers license number, non-driver identification card, or last four digits of their Social Security number. See N.C. Gen. Stat. § 163-230.2. RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. §§ 163-82.6(c) and 163230.2 as the best evidence of their contents. The allegations in Paragraph 51 of the Complaint constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them. 52. Alternatively, eligible voters who are existing DMV customers with a North Carolina drivers license or DMV-issued ID may register to vote online. See N.C. Gen. Stat. § 16382.19. Until recently, this option required users to complete a DMV transaction, such as a license
32 See Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe.gov/ Voters/Registering-to-Vote (last accessed May 20, 2020).
31
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renewal or duplicate, at the same time.33 For this registration method, voter registration applications must be submitted at least 25 days before the election in which the voter wishes to cast a ballot.34
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-82.19 as the best evidence of its contents. The allegations in Paragraph 52 of the Complaint constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
53. Eligible voters may also register to vote through certain state agencies such as the Division of Social Services, Division of Public Health/WIC, and Division of Services for the Blind—all divisions of Defendant N.C. Department of Health and Human Services—among others. See N.C. Gen. Stat. §§ 163-82.20 – 82.23.35 Voters may submit forms to state agencies in lieu of mailing the application but must do so at least 25 days before the election in which they wish to vote, see N.C. Gen. Stat. § 163-82.20(g), (h), and may not do so online, even though those agencies, upon information and belief, possess “wet-ink” signatures for those customers.
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. §§ 163-82.20–82.23 and 163-82.20(g)–(h) as the best evidence of their contents. The allegations in Paragraph 53 of the Complaint constitute legal arguments or conclusions of law to which no response is required. To
33 See Press Release, N.C. State Bd. of Elections, State Board, DMV Partner to Expand Online Voter Registration Service (Mar. 30, 2020), https://www.ncsbe.gov/Press-Releases?udt_2226_ param_detail=2195. 34 See also Registering to Vote in North Carolina, N.C. State Bd. of Elections, https://www.ncsbe. gov/Voters/Registering-to-Vote (last visited May 19, 2020) (“Voter registration applications submitted [through the DMV] fewer than 25 days before an election will not be processed until after the election.”) 35 See NVRA Agency Forms, N.C. State Bd. of Elections, https://www.ncsbe.gov/VoterRegistration/NVRA (last accessed May 19, 2020).
32
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the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
54. Finally, voters may register in person at an early voting site using same-day registration with valid identification.36 This option is available up until the last Saturday before the election. See N.C. Gen. Stat. § 163-227.2(b).
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-227.2(b) as the best evidence of its contents. The allegations in Paragraph 54 of the Complaint constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
55. The COVID-19 pandemic and resulting stay-at-home orders in North Carolina have significantly hindered third-party voter registration efforts for the 2020 general election. For example, Plaintiff LWVNC has had to cancel and otherwise reduce its in-person voter registration initiatives, which typically comprise a significant portion of its voter registration efforts. Plaintiff Democracy NC has had to cancel its in-person voter education forums where voter registration forms are usually provided. Furthermore, voters’ ability to access the resources needed to register to vote—whether they be printers, postage, and access to a post-office box, state agency, county board of election or the DMV—have also been significantly hindered by the COVID-19 pandemic. As a result, voter registration is significantly lagging this year as compared to previous general election years. While January 2020 showed an approximately 162 percent increase in registrations
36 One-Stop Early Voting; Same-Day Registration, N.C. State Bd. of Elections, https://www.ncsbe. gov/Voting-Options/One-Stop-Early-Voting (last accessed May 20, 2020).
33
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compared to January 2016 (indicating increased intent to vote in this election cycle), April 2020 showed an approximately 50 percent decrease in voter registrations compared to April 2016.37
RESPONSE: Intervenor-Defendants admit that the North Carolina State Board of Elections has compiled data relating to voter registration and refers to that data as the best evidence of its contents. Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 55 and therefore deny them.
E. Absentee Vote-By-Mail 56. There will be a dramatic increase in the number and proportion of mail-in absentee ballots cast in the upcoming 2020 elections. While North Carolina permits all registered voters to cast an absentee ballot if they choose, see N.C. Gen. Stat. § 163-226(a), recently-enacted restrictions on absentee voting as well as other pre-existing provisions in the North Carolina election code impose undue burdens on voters wishing to cast mail-in absentee ballots in light of the current pandemic, and will force voters to choose whether to exercise their right to vote or protect their health. RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-226(a) as the best evidence of its contents. The remaining allegations in Paragraph 56 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them. 57. Wisconsin’s recent election, which was held after its governor declared state of emergency in response to COVID-19, shows that there will likely be an increased use of mail-in
37 See N.C. State Bd. of Elections, NVRA Data (2008 to present), https://s3.amazonaws.com/dl. ncsbe.gov/NVRA/nvra_stats_all.txt. This data file is accessible by going to https://www. ncsbe.gov/Public-Records-Data-Info/Election-Results-Data and navigating to “FTP Site” → “NVRA” → “NVRA_stats_all.txt”.
34
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ballots in North Carolina. Like North Carolina, Wisconsin does not require an excuse to vote by mail. In its April 7, 2020 spring election, nearly 1.3 million registered Wisconsin voters requested a mail-in ballot,38 the most in the state’s history. Of the 1.6 million voters who cast ballots in the spring election,39 more than 70 percent, that is 1.1 million, voted by mail-in absentee ballot.40 This was a dramatic increase from the percentage of mail-in absentee ballots cast in the 2016 presidential primary election, in which mail-in absentee ballots made up just 11.8 percent of total ballots cast.41
RESPONSE: Intervenor-Defendants admit that the Wisconsin Elections Commission has compiled data regarding absentee ballot voting and refer to that data as the best evidence of its contents. Intervenor-Defendants further admit that the recent Wisconsin election took place after the Wisconsin governor issued a state of emergency. The remaining allegations in Paragraph 57 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
58. Defendant North Carolina State Board of Elections anticipates a similar dramatic increase in mail-in absentee voting in 2020 to 30 to 40 percent,42 and thus needs to prepare for such an increase. As it currently stands, North Carolina’s election code imposes severe burdens to voters
38 Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary, WIS. ELECTIONS COMM’N (Apr. 16, 2020), https://elections.wi.gov/node/6856. 39 Unofficial Spring Election Turnout - 34.3 % - 4/14/2020, WIS. ELECTIONS COMM’N, https:// elections.wi.gov/blog (last accessed May 21, 2020). 40 Updated municipal absentee ballot data, WIS. ELECTIONS COMM’N, https://elections.wi.gov/blog (last updated 4/13/20 9:35am). 41 Absentee Ballot Requests for April 7 Exceed 1 million - COVID-19, WIS. ELECTIONS COMM’N (Apr. 1, 2020), https://elections.wi.gov/node/6802. 42 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2).
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who need to cast absentee mail-in ballots, in light of the current pandemic, and to the expected influx of voters wishing to vote by mail for the first time.
RESPONSE: Intervenor-Defendants admit that Defendant Karen Brinson Bell sent a letter to Governor Cooper on April 22, 2020 and refer to that letter as the best evidence of its contents. The remaining allegations in Paragraph 58 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
1. Senate Bill 683 59. North Carolina law has permitted all eligible citizens to vote by mail in all federal and state elections since 2001. See N.C. Gen. Stat. § 163-226(a). Voters must submit a completed State Absentee Ballot Request Form to their county board of elections in order to receive an absentee ballot. N.C. Gen. Stat. § 163-230.2(a). RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. §§ 163-226(a) and 163230.2(a) as the best evidence of their contents. The remaining allegations in Paragraph 59 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them. 60. In November 2019 North Carolina made it significantly more cumbersome for its voters to cast absentee ballots by mail by enacting Senate Bill 683. See An Act to Amend the Laws Governing Mail-In Absentee Ballots (“SB 683”), S.L. 2019-239, § 1 (Nov. 6, 2019).43 Among other provisions, SB 683 imposes restrictions on who can assist voters with completing mail-in absentee ballot request forms. See S.B. 683 § 1.3(a) (amending N.C. Gen. Stat. § 163-230.2(e), (e1)). Requests are invalid if “completed partially or in whole, or signed by anyone other than the
43 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2019- 239.pdf. 36
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voter, or the voter’s near relative or verifiable legal guardian.” N.C. Gen. Stat. § 163-230.2 (e)(2). Members of multi-partisan teams (“MATs”) trained and authorized by county boards of elections may assist in completion of the request, id., but in certain North Carolina counties, the availability of MATs has been inadequate. Voters requiring assistance to complete the written request form due to blindness, disability, or inability to read or write may request another person if “there is not a near relative or legal guardian available to assist that voter.” N.C. Gen. Stat. § 163-230.2(e1).
RESPONSE: Intervenor-Defendants refer to SB 683 and N.C. Gen. Stat. § 163-230.2 (e)(2) as the best evidence of their contents. The remaining allegations in Paragraph 60 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
61. There are also restrictions on who may help return a completed absentee ballot request. Under N.C. Gen. Stat. § 163-230.2(c), the completed request form may only be delivered to the county board of elections by the voter, the voter’s near relative or verifiable legal guardian, or a MAT team member.
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-230.2(c) as the best evidence of its contents. The remaining allegations in Paragraph 61 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
62. Unlike for completing an absentee ballot request form, there is no exception in the statute for a voter who needs assistance with returning the request form by reason of their blindness, disability, or inability to read or write. See N.C. Gen. Stat. § 163- 230.2(e)(4).
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-230.2(e)(4) as the best evidence of its contents. The remaining allegations in Paragraph 62 constitute legal arguments or
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conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
63. There are also no such exceptions to the similar restrictions for marking, completion and submission of mail-in absentee ballots. People, who by reason of their blindness, disability, or inability to read or write, require assistance are still restricted to the voter’s near relative or verifiable legal guardian, or a MAT team member. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163226.3(a)(5), 163-231(b)(1).
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. §§ 163-226.3(a)(4), 163226.3(a)(5), and 163-231(b)(1) as the best evidence of their contents. The remaining allegations in Paragraph 63 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, IntervenorDefendants deny them.
64. By doing so, SB 683 has effectively banned organizations like LWVNC and individuals like Plaintiff Schaffer from assisting voters with requesting absentee ballots. This is especially damaging where, as here, the State Board expects a dramatic increase in voting-by-mail, indicating that many individuals will be seeking to vote by mail for the first time. Without assistance by organizations like LWVNC or individuals like Plaintiff Schaffer, which was available up until SB 683’s passage in late 2019, many of these voters will lack needed assistance to navigating the ballot request process during a time when that assistance is crucial to ensuring individuals can vote safely.
RESPONSE: The allegations in Paragraph 64 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
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65. SB 683 also narrowed the list of identification voters could submit with their request form to only a North Carolina driver’s license number, special identification card number, or the last four digits of his or her Social Security number. See N.C. Gen. Stat. § 163-230.2(a)(4), (f). There is no provision allowing individuals to submit alternative proof of residency such as those documents provided for under the Help America Vote Act (“HAVA”), i.e., a current utility bill, bank statement, government check, paycheck, or other government document showing the name and address of the voter. Defendant Executive Director Bell requested in her March 26, 2020 letter that North Carolina permit voters to submit this alternative documentation with their absentee request forms, noting that the State Board had received “multiple reports from county boards of elections and from voters that, without this option, some voters are no longer able to request an absentee ballot, and that “[a]llowing this option will make it easier for those most at risk of contracting COVID- 19 to vote absentee by mail.”44
RESPONSE: Intervenor-Defendants refer to the March 26, 2020 letter and N.C. Gen. Stat. § 163-230.2(a)(4), (f) as the best evidence of their contents. The remaining allegations in Paragraph 65 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, IntervenorDefendants deny them.
2. Two-Witness Requirement 66. North Carolina’s two-witness or notary requirement for mail-in absentee voting will also force voters to decide whether to break quarantine or violate social- distancing directives, and thereby risk their own health, in order to successfully cast a ballot this year. Among other

44 See Letter from Karen Brinson Bell, Executive Director, to Governor Roy Cooper et. al. (Mar.

26,

2020),

https://s3.amazonaws.com/dl.ncsbe.gov/sboe/SBE%20Legislative%20

Recommendations_COVID-19.pdf.

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requirements, North Carolina election law requires that an individual voting an absentee ballot do
so “[i]n the presence of two persons who are at least 18 years of age.” N.C. Gen. Stat. § 163-
231(a).45 The only alternative is to obtain the signature of a notary public. Id. However, during
the current pandemic a notary public is not a viable option for many voters because many
businesses are closed and the recent exclusion of absentee ballots from the recent COVID response
bill allowing for electronic notaries. See An Act to Provide Aid to North Carolinians in Response
to the Coronavirus Disease (COVID-19) Crisis, S.L. 2020-3 § 4.1(c) (May 4, 2020).46 Accordingly,
even when they do have access to a notary public, individuals again would have to breach social-
distancing measures and leave their home to have their ballot notarized.
RESPONSE: The allegations in Paragraph 66 constitute legal arguments or conclusions
of law to which no response is required. To the extent there are additional allegations to which a
response is required, Intervenor-Defendants deny them.
67. North Carolina is one of just twelve states that requires a witness or notary to
observe the voter casting the absentee ballot and then sign the ballot’s certificate envelope and one
of just three states that requires two witnesses.47 In a time when social distancing is a crucial
45 Other restrictions include prohibiting any candidate for nomination or election from serving as a witness unless the voter is the candidate’s near relative, prohibiting owners, managers, directors, employees of any hospital, clinic, nursing home, or rest home from witnessing for a voter who is a patient or resident, and certain office-holders. See N.C. Gen. Stat. §§ 163-226.3(a)(4) and 163237(b)(1). 46 See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2020- 3.pdf (at PDF p. 31) (“Nothing in this section shall apply to any notarization under Article 20 of Chapter 163 of the General Statutes [regarding absentee ballots].”). 47 See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. Ann. § 18:1306(2)(a); Minn. Stat. §§ 203B.07, 203B.121; Minn. R. 8210.2450; Miss. Code Ann. §§ 2315-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C. Gen. Stat. § 163-231; Okla. Stat. tit. 26, § 14-108; 17 R.I. Gen. Laws § 17-20-23; S.C. Code Ann. §§ 7-15-220, 7-15-230; Va. Code Ann. §§ 24.2-706, 24.2-707; Wis. Stat. § 6.87(4)(b)1; see also Jay Chaudhury, NC absentee ballots require 2 witnesses. Is that unique?, POLITIFACT (Apr. 23, 2020), https://www.politifact.com/factchecks/2020/apr/23/jay-chaudhuri/nc-absentee-ballots- require-2-
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measure to protect public health, the two-witness requirement unconstitutionally forces individuals to choose between voting through an absentee mail- in ballot that will count or protecting their health, and constitutes an insurmountable hurdle for many eligible North Carolina voters seeking to protect their health and the health of their family or co-habitants. Those eligible North Carolina voters under self-quarantine, particularly those at risk of severe complications and death from COVID-19, who live alone or who do not have two other adults in their household, will be unable to safely satisfy the state’s double-witness signature requirement and cast a mail-in absentee ballot. This is no small number: According to the U.S. Census, there are 1,113,548 single-member households in North Carolina.48 Of those single-member households, 416,121, or 37 percent, are occupied by someone 65 or older.49
RESPONSE: Intervenor-Defendants admit that the U.S. Census compiles data relating to population and refers to that data as the best evidence of its contents. The remaining allegations in Paragraph 67 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, IntervenorDefendants deny them.
68. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley are all eligible North Carolina voters who need to vote by mail-in absentee ballot to safeguard their lives and the health and wellbeing of their family members or co-habitants. Mr. Clark, who is 79 years old, has severe COPD
witnesses-unique/; Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NAT’L CONF. OF STATE LEGIS. (Apr. 14, 2020), https://www.ncsl.org/research/electionsand-campaigns/absentee-and-early-voting.aspx (select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”). 48 Table S2501, Occupancy Characteristics, American Community Survey, U.S. CENSUS BUREAU, https://data.census.gov/cedsci/table?q=S2501&g=0400000US37&tid=ACSST5Y2018.S2 501. 49 Id.
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that puts him at serious risk of severe complications and even death from COVID-19. After several bouts of pneumonia in recent years, Mr. Clark has been quarantining himself at home. Ms. Cates, who is 85 years old, lives with chronic fatigue syndrome, a debilitating disease that makes it hard for her to engage in normal daily activities and has suffered a urinary tract infection and fallen several times over the last year. Since the social distancing guidelines were put in place, Ms. Cates has not left her home, and only allows an assistant to visit and help with household chores while carefully maintaining distance from Ms. Cates. Ms. Edwards has a pre-existing medical condition, type 1 diabetes, which puts her at high risk for developing severe illness from COVID-19. In light of the risks to her health, she is uncomfortable leaving her home or being in close proximity to people other than her partner. Mr. Priddy’s doctor has informed him that he is at high risk of developing severe illness from the novel coronavirus due to his age and serious pre-existing health conditions, including his use of medication that suppresses his immune system related to a kidney transplant in 2010, and treatment for diabetes. To protect his health, Mr. Priddy’s doctor has advised him to stay at home and avoid contact with people other than his wife. Ms. Bentley has been diagnosed with hypertension and has a history of developing cold symptoms attacking her lungs, also putting her at risk of severe illness from COVID-19. As a result, she has been selfisolating in her home since March 10 to avoid contracting novel coronavirus. Ms. Bentley lives alone and does not have any family nearby and does not feel safe asking her neighbors to serve as witnesses because she has observed some breaking the Governor’s stay-at-home order. Other neighbors are themselves self-isolating to protect vulnerable family members, and Ms. Bentley does not know what precautions her remaining neighbors are taking. Accordingly, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley have no way to safely comply with the two-witness requirement and are therefore effectively disenfranchised by N.C. Gen. Stat. § 163-231(a).
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Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley will be forced to choose between exercising their fundamental right to vote or running the risk of contracting and spreading COVID-19 and further worsening the pandemic in North Carolina.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the allegations regarding Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley. The remaining allegations in Paragraph 68 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
3. Other North Carolina Election Laws and Procedures that Must Be Adjusted to Protect the Right to Vote By Mail During This Public Health Crisis
69. In addition to the restrictions imposed by SB 683 and the two-witness requirement, North Carolina’s election laws lack crucial mechanisms for guaranteeing that eligible individuals in North Carolina will be able to cast a mail-in absentee ballot that is counted. As pointed out by Defendant Director Bell, North Carolina has no mechanism for requesting absentee ballots by phone, email, or online. Accordingly, voters wishing to request an absentee mail-in ballot must either have the necessary equipment at home (printer, envelope, postage, and access to mail pickup), violate social-distancing directives and guidelines and put themselves at severe risk by seeking these items outside the home, or rely on others to provide them with a form. By contrast, at least twelve states allowed voters to request an absentee ballot online, and an additional three allowed voters to submit a scanned application via email.50
50 VOPP: Table 6: States With Web-Based and Online Absentee Ballot Applications, NAT’L CONF. OF STATE LEGIS. (May 4, 2020), https://www.ncsl.org/research/elections-and-campaigns/vopptable-6-states-with-web-based-and-online-absentee-ballot-applications.aspx.
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RESPONSE: Intervenor-Defendants admit that the National Conference of State Legislatures has compiled data regarding states with web-based and online absentee ballot applications and refer to that data as the best evidence of its contents. The remaining allegations in Paragraph 69 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, IntervenorDefendants deny them.
70. Furthermore, North Carolina voters need a fail-safe for absentee voting to prevent the unlawful denial of the right to vote given North Carolina’s lack of experience with the anticipated volume of mail-in absentee ballot requests for the November general election. This is especially critical given the recent evidence out of Wisconsin and Ohio that state and local election officials, as well as the U.S. Postal Service, are failing to deliver thousands of absentee ballots to voters in the mail.51 Those voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day— i.e., within a certain number of days of the election of their request and/or within a certain number of days of the request—will be disenfranchised unless they are permitted to use the Federal WriteIn Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.52 FWABs are already offered to overseas civilians, who can download them and print them for use, but domestic civilian absentee voters are denied the same option, even when their regular mail-in absentee ballot does not arrive in time or at all.
51 See, e.g., Carrie Levine, Ohio’s Mail-in Ballot Brouhaha: A Sign of Coming Trouble? THE CTR. FOR PUBLIC INTEGRITY (Apr. 28, 2020), https://publicintegrity.org/politics/elections/ohios-mailin-ballot-brouhaha-a-sign-of- coming-trouble/. 52 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.
44
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RESPONSE: Intervenor-Defendants refer to the cited article from the Center for Public Integrity as the best evidence of its contents. The remaining allegations in Paragraph 70 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
71. Additionally, voters without access to postage and mail pick-up must also violate social-distancing directives and guidelines to submit mail-in absentee ballots. To successfully vote by mail, voters must mail their ballots such that they are postmarked on or before Election Day and delivered no later than 5:00 pm on Election Day, or return their voted ballots to the county board of elections (not a polling location) no later than 5:00 pm on Election Day. However, there is currently no provision in North Carolina law for contactless drop boxes for absentee ballots, which would allow voters to avoid severe delays with the U.S. Postal Service, reduce the overall burden on the U.S. Postal Service, and allow those voters with their own vehicles to submit absentee ballots without requiring contact with anyone to obtain required postage or deliver inperson to the county board of elections.
RESPONSE: The allegations in Paragraph 71 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
72. Finally, there is no adequate statewide-mandated procedure in North Carolina for voters to cure deficient absentee ballot requests or the ballots themselves. In the March 2020 North Carolina primary, almost 15 percent of submitted absentee mail-in ballots were rejected.53 This
53 See N.C. State Bd. of Elections, March 3, 2020 Absentee File, https://s3.amazonaws. com/dl.ncsbe.gov/ENRS/2016_03_03/absentee_20200303.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data- Info/Election-Results-Data and navigating to “FTP Site” → “ENRS” → “2020_03_03” → “absentee_20200303.zip”. The statistics generated
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number was even higher for voters of color, with 19 percent of mail-in ballots submitted by black voters rejected and almost 16 percent of mail-in ballots submitted by Latinx voters rejected.54 In light of the anticipated dramatic increase in the use of absentee ballots and the new restrictions under SB 683 on who may assist a voter to request an absentee ballot, there is a heightened risk that voters new to mail-in absentee voting will fail to follow the proper procedures without being afforded any opportunity to cure any deficiencies. As it stands, North Carolina’s election code risks disenfranchising vast numbers of voters attempting to submit mail-in absentee ballots.
RESPONSE: Intervenor-Defendants admit that the North Carolina State Board of Elections has compiled data relating to the rejection rates of absentee ballots and refer to that data as the best evidence of its content. The remaining allegations in Paragraph 72 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
F. In-Person Voting 73. North Carolina’s electorate has expressed a clear preference for in-person voting, with just 4 percent of voters casting mail-in absentee ballots in the 2016 general election.55 In general, preference for in-person voting holds disproportionately true for voters of color.56 There
from the absentee file do not include absentee by mail ballots that were either requested and not sent to the voter, or sent to the voter but not returned to the State Board of Elections. 54 Id. 55 See N.C. State Bd. of Elections, November 8, 2016 History Statistics, https://s3.amazonaws. com/dl.ncsbe.gov/ENRS/2016_11_08/history_stats_20161108.zip. This data file is accessible by going to https://www.ncsbe.gov/Public-Records-Data- Info/Election-Results-Data and navigating to “FTP Site” → “ENRS” → “2016_11_08” → “history_stats_20161108.zip”. 56 See David Becker, Mail-in ballots to avoid coronavirus? Yes, but here’s how to minimize chaos and unfairness, WASH. POST (Mar. 18, 2020), https://www.washingtonpost.com/opinions/ 2020/03/18/mail-in-ballots-avoid-coronavirus-yes-heres-how-minimize-chaos-unfairness/.
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are a multitude of causes for this voter behavior pattern, but one reason stems from the machinations used to steal votes from and defraud voters of color, among others.57 This means that North Carolina has not needed to, and indeed has not, built the infrastructure to accommodate such a dramatic increase in voter demand for absentee ballots without overwhelming current systems and causing mass disenfranchisement.58 Thus, it is critically important that voters be provided with ample and as-safe-as-possible in-person voting options.
RESPONSE: Intervenor-Defendants refer to the cited data and articles as the best evidence of their content. The remaining allegations in Paragraph 73 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
74. The CDC has issued guidance directing election officials to “reduce crowd size at polling stations” such as encouraging “early voting, where voter crowds may be smaller throughout the day,” which “minimizes the number of individuals a voter may come in contact with.”59 There are two provisions of North Carolina law that have already and will continue to hinder county boards in providing safe and adequate in-person voting options, and there are a number of other adjustments needed to ensure voter and poll worker safety.
57 See generally, CAROL ANDERSON, ONE PERSON, NO VOTE: HOW VOTER SUPPRESSION IS DESTROYING OUR DEMOCRACY 19-22 (2018); STEVEN LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH, 1944-1969, Ch. 2 (1999). 58 See Ryan McCarthy, Whether the Ballot You Mail Is Counted May Depend On Where You Vote, PROPUBLICA (Apr. 30, 2020), https://www.propublica.org/article/whether-the- ballot-you-mail-iscounted-may-depend-on-where-you-vote. 59 Coronavirus Disease 2019 (COVID-19), Recommendations for Election Polling Locations, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (last updated: Mar. 27, 2020).
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RESPONSE: Intervenor-Defendants admit that the CDC has issued election guidance relating to COVID-19 and refer to that guidance as the best evidence of its contents. The remaining allegations in Paragraph 74 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
1. Ensuring Adequate Number of Poll Workers 75. The first problematic provision is North Carolina’s requirement that a majority of poll workers reside in the precinct where they serve on Election Day. See N.C. Gen. Stat. § 16342(b). Upon information and belief, as of May 14, 2020, eight county boards have requested to eliminate 64 precincts for the upcoming Congressional District 11 Second Republican Primary, impacting over 50,000 voters.60 Several of these county boards specifically cited a lack of poll workers as a reason for consolidated precincts. RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-42(b) and the cited data from the county boards as the best evidence of their content. The remaining allegations in Paragraph 75 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, IntervenorDefendants deny them. 76. As the pandemic persists into the fall, older poll workers will continue to withdraw in numbers sufficient to preclude the operation of countless polling places. In the 2014 general
60See https://dl.ncsbe.gov/index.html?prefix=Public_Records_Requests/June%2023%20Second% 20Primary_temporary_precinct_transfers/.
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election, over 60 percent of North Carolina poll workers were 61 years of age or older and, as a result, a significant portion of poll workers are in the 65-years-old-plus CDC risk category.61
RESPONSE: Intervenor-Defendants admit that the U.S. election Assistance Commission compiled data relating to the 2014 general election and refer to that data as the best evidence of its contents. The remaining allegations in Paragraph 76 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
77. Defendant Director Bell requested a change in state law to allow county boards to recruit and train poll workers from across the county,62 and county board members from Congressional District 11 similarly conveyed to North Carolina’s leadership that this change “would significantly help us staff polling places in these challenging times.”63
RESPONSE: Intervenor-Defendants refer to the cited letters form March 26, 2020 and April 27, 2020 as the best evidence of their contents. To the extent Paragraph 77 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
78. As North Carolina faces the withdrawal of countless poll workers statewide, this requirement will make it extremely difficult, if not impossible, to cure those critical shortages, prevent the closure of any polling places, and minimize the lines, crowds, and wait times at
61 U.S. Election Assistance Comm’n, The 2014 EAC Election Administration and Voting Survey Comprehensive Report (Table 39), at 248, https://www.eac.gov/sites/default/files/eac_assets/ 1/1/2014_EAC_EAVS_Comprehensive_Report_508_Compliant.pdf. 62 See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1). 63 Letter from Board of Elections Members in Congressional District 11 to General Assembly Leaders et al. (Apr. 27, 2020) (Exhibit 3).
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operational polling places. Long wait times and crowds unduly place vulnerable voters at a greater risk of contracting COVID-19.
RESPONSE: The allegations in Paragraph 78 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
2. Early Voting Flexibility 79. North Carolina must also change its hours-uniformity requirement for one- stop, better known as “early voting,” sites. Currently, if any early voting site is open in a county, all early voting sites must be open and all sites other than the county board office must be open 8:00 a.m. to 7:30 p.m. See N.C. Gen. Stat. § 163-227.6(c). As a result, precincts are unable to provide flexible hours that accommodate the specific behaviors and needs of the local voting population using that site. Precincts that might otherwise close due to low anticipated activity must stay open, increasing costs for the entire county and causing precinct consolidation.64 RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-227.6(c) as the best evidence of its contents. The remaining allegations in Paragraph 78 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them. 80. After North Carolina imposed this requirement in June 2018 mandating uniform hours across all early voting sites within each county,65 the costs of implementing this measure
64 See Blake Paterson, Bipartisan Furor as North Carolina Election Law Shrinks Early Voting Locations by Almost 20 Percent, PROPUBLICA (Sept. 24, 2018), https://www.propublica.org/ article/bipartisan-furor-as-north-carolina-election-law- shrinks-early-voting-locations-by-almost20-percent. 65 See An Act to Set Hours for One-Stop Early Voting Sites, S.L. 2018-112 (June 15, 2018). As originally written, the statute removed the final Saturday of early voting beginning in 2018; this was subsequently postponed.
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caused 43 counties to reduce the number of early voting sites in the 2018 general election compared to 2014 and over two thirds of counties to reduce weekend hours. This disproportionately impacted black voters, who in 2018 made up approximately 22% of registered voters but 27% of those who cast ballots on the last Saturday of early voting.66
RESPONSE: Intervenor-Defendants refer to the cited testimony of Tomas Lopez before the U.S. House of Representatives’ Committee on House Administration as the best evidence of its contents. The remaining allegations in Paragraph 80 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
81. As discussed above, the anticipated shortage of poll workers will already cause precinct consolidation in light of the global pandemic; the uniform hours requirement will compound this, causing long lines and limited early voting sites during the early voting period when social distancing and reducing crowds is required for safe election administration. Individuals accustomed to early voting may very well be deterred by large crowding and the inherent heightened risk of infection; they will thus be forced to choose between risking their health to cast a ballot or foregoing their right to vote.
RESPONSE: The allegations in Paragraph 81 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
3. Information Regarding Precinct Consolidation
66 See Voting Rights and Election Administration in North Carolina: Field Hearing Before the Subcomm. on Elections of the H. Comm. on House Administration (Apr. 18, 2019) (testimony of Tomas Lopez, Exec. Dir., Democracy North Carolina), https://docs.house.gov/meetings/HA/ HA08/20190418/109315/HHRG-116-HA08-Wstate- LopezT-20190418.pdf.
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82. The State Board of Elections must also create a more accessible, centralized way in which voters and advocates can monitor precinct consolidation, and thereby advocate against harmful precinct consolidations. Currently, each county board of elections must give notice at least 45 days before the election when altering or consolidating precincts. See N.C. Gen. Stat. § 163-128(a). This notice must be posted in a generally circulated newspaper, posted on the door of the county courthouse and county board of elections, and mailed to the chairmen of every political party in the county. Id. Voters only need to be notified of changes in their particular precinct 30 days before an election. Id. In order to ensure that all voters have access to information about precinct consolidations necessitated by poll worker and/or site shortages, the State Board must provide that information in a centralized and accessible manner.
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-128(a) as the best evidence of its contents. The remaining allegations in Paragraph 82 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
4. Personal Protective Equipment 83. Finally, there is currently no provision for counties to provide poll workers and voters with Personal Protective Equipment (“PPE”) for use during in-person voting, such as protective masks and gloves for poll workers and/or voters, separation shields, antiseptic wipes for equipment, and single-use pens. Effective use of PPE can dramatically reduce the likelihood of coronavirus transmission,67 and these measures are needed to adequately protect voters exercising their constitutional rights. In a May 15, 2020, meeting of the State Board of Elections, Defendant
67 See, e.g., Zeynep Tufekci et al., The Real Reason To Wear A Mask, THE ATLANTIC (Apr. 22, 2020), https://www.theatlantic.com/health/archive/2020/04/dont-wear-mask- yourself/610336/.
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Director Bell stated that she had ordered PPE for those counties holding the second Republican primary election on June 23, 2020. The same provisions are required for the 2020 general election and, because of the state-wide nature and expected high turnout of this election, the SBE Defendants must take action immediately to ensure counties obtain adequate supplies. Without these measures, plaintiffs will be forced to choose between their right to vote and their right to bodily integrity.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to whether Defendant Bell “stated that she had ordered PPE for those counties holding the second Republican primary election on June 23, 2020” during a May 15, 2020 meeting of the North Carolina State Board of Elections. The remaining allegations in Paragraph 83 constitute legal arguments or conclusions of law to which no response is required. To the extent there are additional allegations to which a response is required, Intervenor-Defendants deny them.
CLAIMS COUNT ONE (All Defendants) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983) 84. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-83 of the Complaint, and deny all remaining allegations. 85. Under the First and Fourteenth Amendments to the U.S. Constitution, any burden on the right to vote must be balanced against a state’s interest in that requirement. The Supreme Court has set forth the following test:
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[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also id., at 788–789, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992). RESPONSE: Paragraph 85 of the Complaint contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 85 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 86. “A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition.” Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring); see also N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016) (because there were fewer early voting days, more voters would have to vote on Election Day, and “[t]ogether, these produce longer lines at the polls on Election Day, and absent out-of-precinct voting, prospective Election Day voters may wait in these longer lines only to discover that they have gone to the wrong precinct and are unable to travel to their correct precincts. Thus, cumulatively, the panoply of restrictions results in greater disenfranchisement than any of the law’s provisions individually.”). RESPONSE: Paragraph 86 of the Complaint contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 86 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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87. Unless Plaintiffs are granted the relief requested, the right to vote and ability to freely associate of thousands of North Carolinians, including Individual Plaintiffs and Organizational Plaintiffs and their members, will be severely burdened (if not denied entirely) in the general election on November 3, 2020.
RESPONSE: Paragraph 87 of the Complaint contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 87 contains additional allegations to which a response is required, Intervenor-Defendants deny them. Voter Registration
88. North Carolina’s requirement that voter registration applications be submitted at least 25 days before the election in which the voter wishes to cast a ballot under N.C. Gen. Stat. § 163-82.6(d), and the DMV’s requirement that those registering online do so at least 25 days before the election, is a severe burden on the right to vote in light of the COVID-19 pandemic, which has caused a dramatic decrease in voter registration rates. If a voter is not able to register at least 25 days before the election, then their only recourse is to do same-day registration at an early voting site, therefore potentially exposing themselves or their families to infection via COVID-19. See N.C. Gen. Stat. § 163-82.6(f). Furthermore, North Carolina’s failure to provide online voter registration through other state agencies, and specifically Defendant DHHS, places a severe burden on those individuals who need to register online but are not registered with the DMV.
RESPONSE: Paragraph 88 of the Complaint contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 88 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
89. Any administrative burden created by extending the voter registration deadline and/or expanding online voter registration through Defendant DHHS is “de minimis” and Defendants cannot put forth a compelling or legitimate state interest in keeping the deadline as
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such in face of the emergency situation that COVID-19 has created and will create. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 48394, at *14 (W.D. Wis. Mar. 20, 2020); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016); Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016).
RESPONSE: Paragraph 89 of the Complaint contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 89 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
90. Since DMV has only allowed voters to register online without requiring a DMV transaction at the same time since March 2020, voters are generally unaware of this option. The 25-day deadline will hinder LWVNC’s efforts to promote voter registration and require LWVNC and its members to divert significant resources. The lack of other online registration options offered by the DHHS Defendants further impedes LWVNC’s ability to educate and engage in its voter registration efforts, and frustrates its mission to ensure that all eligible voters can register safely during the COVID-19 pandemic.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to whether “DMV has only allowed voters to register online without requiring a DMV transaction at the same time since March 2020.” The remaining allegations in Paragraph 90 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 90 contains additional allegations to which a response is required, IntervenorDefendants deny them.
91. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing this 25-day deadline or failing to provide online voter registration through Defendant
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DHHS that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given that North Carolina allows for same-day registration at one-stop early voting sites up until the Saturday before the election and has already implemented an online voter registration method through DMV for certain voters. Upon information and belief, Defendant DHHS possesses “wetink” signatures of its benefits recipients. Accordingly, any purported state interests in enforcing this 25-day deadline or failing to provide Defendant DHHS online voter registration are neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to whether “DHHS possesses ‘wet-ink’ signatures of its benefits recipients.” The remaining allegations in Paragraph 91 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 91 contains additional allegations to which a response is required, Intervenor-Defendants deny them. Vote-by-mail assistance restrictions
92. North Carolina’s restrictions on who can assist voters with completing and returning mail-in absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2(c), (e), and (e1) is a severe burden on the fundamental right to vote and Plaintiff LWVNC, their members, and the voters they will assist during the upcoming election. This restriction impairs LWVNC’s efforts to help voters cast a ballot and limits the assistance LWVNC and its members can provide to voters wishing to vote by mail, during an election in which a voters are expected to vote by mail—and do so for the first time—in unprecedented numbers. Additionally, Plaintiff Schaffer’s First Amendment speech and associational right to help people cast a ballot is impaired given that under the current law she is not able to assist voters as she has in the past through various volunteer opportunities.
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RESPONSE: Paragraph 92 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 92 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
93. Likewise, the failure of North Carolina election code to allow individuals to submit alternative proof of residency such as HAVA documents with their absentee request forms unnecessarily impedes and restricts the ability of North Carolina voters to successfully request absentee ballots at a time when the need to request those ballots will be at an all-time high.
RESPONSE: Paragraph 93 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 93 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
94. In the midst of this ongoing public health crisis, there is no state interest in favor of imposing and enforcing these restrictions that justifies the burden placed on the constitutional right to vote. Any purported state interest in enforcing the restriction on who can assist individuals in requesting absentee ballots is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Paragraph 94 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 94 contains additional allegations to which a response is required, Intervenor-Defendants deny them. Vote-by-mail Witness Requirement
95. North Carolina’s two-witness or notary requirement for mail-in absentee voting pursuant to N.C. Gen. Stat. § 163-231(a) is a severe burden on Plaintiffs’ right to vote in light of the COVID-19 pandemic, because it will require voters, particularly voters at high risk of severe complications and death from COVID-19, to break their self- quarantine and violate social
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distancing directives at risk to their health. For example, Plaintiffs Clark, Edwards, and Priddy, who are each self-quarantined with one other person in their household, will be forced to choose between staying home and avoiding contact with people outside their households or seeking out another person to serve as a second witness despite guidance from the CDC and medical professionals to stay quarantined and limit contact with people outside their households. Plaintiffs Cates and Bentley, who are also self-isolated at home, live alone and do not have any family members nearby. Satisfying the two-witness requirement will require them to put themselves at risk of contracting COVID-19 in order to satisfy the two-witness certification requirement.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 95 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 95 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
96. In the midst of this ongoing public health crisis, there is no state interest in favor of enforcing the two-witness or notary requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing the two- witness or notary requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Paragraph 96 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 96 contains additional allegations to which a response is required, Intervenor-Defendants deny them. Vote-by-mail lack of fail-safe for absentee ballots that are not timely delivered to voters
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97. North Carolina lacks any fail-safe option for mail-in absentee voters, if the state’s election administrators, as anticipated, cannot successfully deliver mail-in ballots on time to ten times as many absentee voters as usual. In order to prevent the wholesale and unlawful denial of the right to vote to voters who cannot risk voting in person at a polling site on or before Election Day, Defendants must afford voters who timely request an absentee ballot but who do not receive their requested absentee ballot in time to vote and drop them off or mail them by Election Day— i.e. within a certain number of days of the election of their request and/or within a certain number of days of the request—the option to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last resort to cast their votes.68 Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by mail-in absentee ballot, in order to safeguard their health. If, as expected, North Carolina’s state and local election officials and their staff cannot keep pace with the unprecedented rise in absentee ballot requests, some or all of these five Plaintiffs may well not receive their absentee ballots in a timely fashion such that they can be cast and counted. Accordingly, in order to protect their right to vote, just like overseas civilian voters, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley must be permitted to cast FWABs, as a fail-safe option.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 97 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 97 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
98. Particularly in the midst of this ongoing public health crisis, the failure to offer this standardized fail-safe option for mail-in absentee voters, which would completely deny the right
68 See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. 60
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to vote to countless domestic civilian absentee voters, cannot be justified by any legitimate or important state interest. This option is already afforded to overseas civilian voters; the exclusion of domestic, civilian voters, at least in the limited context where a voter does not receive a requested absentee ballot in the mail, is unreasonable and discriminatory. See Burdick, 504 U.S. at 434 (“But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”) (emphasis added, internal quotations omitted). Any purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Intervenor-Defendants refer to the Supreme Court’s decision in Burdick v. Takushi as the best evidence of its contents. The remaining allegations in Paragraph 98 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 98 contains additional allegations to which a response is required, Intervenor-Defendants deny them. Vote-by-mail failure to provide other accommodations
99. North Carolina’s failure to provide mechanisms for requesting absentee ballots by phone, email, or online, its failure to provide contactless drop boxes for absentee ballots that would allow voters to submit their absentee ballots from their vehicles instead of violating socialdistancing directives and guidelines, and its failure to provide a statewide-mandated procedure for voters to cure deficient absentee ballot requests are all, individually or in combination, severe restrictions on Plaintiffs’ right to vote and will require them to put their own health at risk in order to successfully vote by absentee ballot. See Clingman v. Beaver, 544 U.S. 581 607–08 (2005) (O’Connor, J., concurring); N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir.
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2016). Plaintiff Cates cannot secure an absentee ballot request form on her own, though she could if online or phone request options were made available. LWVNC will also have to redirect a significant amount of its limited resources toward helping eligible voters to access absentee ballot request forms without a phone, email, or online option to request an absentee ballot.
RESPONSE: Intervenor-Defendants refer to the Supreme Court’s decision in Clingman v. Beaver and the Fourth Circuit’s decision in N.C. State Conf. of NAACP v. McCrory as the best evidence of their contents. Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs. The remaining allegations in Paragraph 99 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 99 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
100. Additionally, Plaintiffs Clark, Cates, Edwards, Priddy, Bentley, and Hutchins all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects. Furthermore, the lack of any uniform mechanism to cure will require LWVNC and Democracy NC to devote additional resources towards researching these various rules to help ensure the voters they assist have followed all procedures for requesting and filling out absentee ballots precisely, in addition to their general educational efforts.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs. The remaining allegations in Paragraph 100 constitute legal arguments or conclusions of law to which no response
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is required. To the extent Paragraph 100 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
101. In the midst of this ongoing public health crisis, there is no state interest in failing to provide these services that justifies the burden placed on Plaintiffs’ constitutional right to vote, especially given the numerous other states that do provide these services. Any purported state interest in failing to provide these services is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Paragraph 101 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 101 contains additional allegations to which a response is required, Intervenor-Defendants deny them. Poll worker “home precinct” requirement
102. North Carolina’s requirement that a majority of poll workers reside in the precinct where they serve on Election Day pursuant to N.C. Gen. Stat. § 163-42(b) is a severe burden on Plaintiffs’ right to vote, as it will exacerbate a shortage of poll workers, force precinct consolidation and relocation, and create long lines and crowds on Election Day that contravene social distancing directives needed to protect Plaintiffs’ health.
RESPONSE: Paragraph 102 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 102 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
103. This constitutes a severe burden on voters, particularly those who cannot wait in line for hours to vote. SBE Defendants are on notice that precinct consolidation due to lack of poll workers is likely, given the requests for precinct consolidation for the June 23, 2020 second Republican Primary, and their failure to prepare for this same eventuality in the November 3, 2020
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general election will severely burden the rights of voters who rely on in-person voting. See Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969) (finding that the defendant’s failure to provide adequate voting facilities despite their foreknowledge of precinct consolidations deprived voters of their constitutional rights); see also League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (finding long lines and inadequate voting machines severely burdened Ohio voters’ right to vote).
RESPONSE: Intervenor-Defendants refer to the Northern District of Illinois’s decision in Ury v. Santee and the Sixth Circuit’s decision in League of Women Voters of Ohio v. Brunner as the best evidence of their contents. The remaining allegations in Paragraph 103 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 103 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
104. Plaintiff Permar relies on polling sites being open in order to vote in-person given her disability and her need to use an ADA compliant voting machine. She also relies on polling places being located in places that are accessible by public transportation, which she uses to independently travel. Ms. Permar’s right to vote and others similarly situated would be severely burdened if precincts are consolidated in such a way as to force her or others similarly situated to travel to a polling place that is not accessible by public transportation or to wait in long lines exposing themselves to COVID-19 when they get to the polling place. Plaintiff LWVNC will also be required to divert resources to recruit poll workers, as well as in its voter education efforts to alert its members and those in their communities about precinct consolidations if the in-precinct requirement for poll workers remains in place and precincts are consolidated as a result. Democracy NC’s poll monitors will also have to divert their resources to ensure voters find the correct precinct, instead of providing the help they would otherwise provide voters.
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RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 104 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 104 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
105. In the midst of this ongoing public health crisis, there is no state interest in enforcing this requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Paragraph 105 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 105 contains additional allegations to which a response is required, Intervenor-Defendants deny them. In-person voting uniform hours
106. North Carolina’s requirement that early voting sites in every county maintain uniform hours pursuant to N.C. Gen. Stat. § 163-227.6(c) is a severe burden on Plaintiffs’ right to vote, as the costs of maintaining uniform hours and limited resources in counties will cause precinct consolidation and long lines and crowds on early voting days that contravene social distancing directives needed to protect Plaintiffs’ health. Additionally, given the SBE Defendants’ knowledge about the effect that COVID-19 has had on the June 2020 runoff election and could have on the November 2020 general election, they have an obligation to mitigate precinct consolidation as much as possible so as to not severely burden voters’ right to vote. See Ury, 303 F. Supp. at 124.
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RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. § 163-227.6(c) as the best evidence of its contents. The remaining allegations in Paragraph 106 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 106 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
107. Plaintiff Permar works at Duke Hospital as a staff assistant, thus it is important that she is able to vote at a time that is in line with her work schedule. Further, Ms. Permar or other similarly situated disabled individuals should not have to wait in long lines further risking their health or potential COVID-19 infection. Plaintiffs Democracy NC and LWVNC will also be required to divert resources in its voter education efforts to alert their members/advocates and those in their communities about precinct consolidations if the uniform hours requirement remains in place.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 107 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 107 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
108. In the midst of this ongoing public health crisis, there is no state interest in enforcing this uniform hours requirement that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing this requirement is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Paragraph 108 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 108 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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Precinct-consolidation monitoring 109. North Carolina’s failure to provide a more accessible, centralized way in which
voters and advocates can monitor precinct consolidation is a severe burden on Plaintiffs’ right to vote. The lack of centralized access to this information will impede and confuse voters’ ability to determine where and how best to vote in-person and will impede the efforts of advocates to oppose harmful precinct consolidations. Plaintiff Permar and other voters rely on being able to know in advance where early voting locations are, or where their election-day polling place is, so as to ensure that they are able to properly schedule a time to vote. Democracy NC is a central hub for voter information, and it would be a huge drain on its resources to not have easy access to proposed precinct consolidations to inform voters. In the midst of this ongoing public health crisis, there is no state interest in failing to provide this service that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide this service is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 109 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 109 contains additional allegations to which a response is required, Intervenor-Defendants deny them. Personal Protective Equipment
110. North Carolina’s failure to provide PPE to all counties for use during early and Election-Day in-person voting is a severe burden on Plaintiffs’ right to vote, as the failure to provide this will exacerbate the shortage of poll workers and increase the risk present to all individuals that vote in person. In conducting its Election Protection hotline and poll monitoring program, Democracy NC volunteers will almost certainly be queried about PPE, who has it, and
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how to get it if is not provided. In the midst of this ongoing public health crisis, there is no state interest in failing to provide PPE that justifies the burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in failing to provide PPE is neither narrowly drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 110 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 110 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
111. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution by administering and enforcing the above laws and/or by failing to provide the above accommodations and services during the COVID-19 pandemic.
RESPONSE: Paragraph 111 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 111 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
112. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of undue burdens on their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
RESPONSE: Paragraph 112 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 112 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
COUNT TWO (SBE Defendants)
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(Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to Bodily Integrity in Violation of the Fourteenth Amendment to the U.S. Constitution
and 42 U.S.C. § 1983) 113. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-112 of the Complaint, and deny all remaining allegations. 114. Voting is protected by the First Amendment as a means of political association and political expression. See Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Norman v. Reed, 502 U.S. 279, 288–90 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787–89, 806 (1983); Kusper v. Pontikes, 414 U.S. 51, 56–58 (1973); Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). RESPONSE: Paragraph 114 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 114 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 115. Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. See Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968); Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Green v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997). RESPONSE: Paragraph 115 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 115 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 116. “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). Government actions that threaten the right to bodily integrity are subject to
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strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). The Supreme Court has invalidated voting requirements or conditions that require the forfeiture of another fundamental right. See Dunn v. Blumstein, 405 U.S. 330, 346, 353 (1972) (finding that durational residency requirement for voter registration placed unconstitutional condition on fundamental right to interstate travel).
RESPONSE: Intervenor-Defendants refer to the Eleventh Circuit’s decision in McCabe v. Sharrett, the Sixth Circuit’s decision in Kallstrom v. City of Columbus, and the Supreme Court’s decision in Dunn v. Blumstein as the best evidence of their contents. The remaining allegations in Paragraph 116 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 116 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
117. The Fourteenth Amendment guarantees the right to bodily integrity, and this right is violated if government officials are deliberately indifferent to the violation of the plaintiff’s bodily integrity. See Missouri v. McNeely, 569 U.S. 141, 159 (2013); Guertin v. Michigan, 912 F.3d 907, 919 (6th Cir. 2019) (recognizing that “individuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest”) (quoting Planned Parenthood Sw. Ohio Reg. v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012)).
RESPONSE: Intervenor-Defendants refer to the Supreme Court’s decision in Missouri v. McNeely and the Sixth Circuit’s decision in Guertin v .Michigan as the best evidence of their contents. The remaining allegations in Paragraph 117 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 117 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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118. “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” Guertin, 912 F.3d at 921–22.
RESPONSE: Intervenor-Defendants refer to the Sixth Circuit’s decision in Guertin v. Michigan as the best evidence of its contents. The remaining allegations in Paragraph 118 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 118 contains additional allegations to which a response is required, IntervenorDefendants deny them.
119. Defendants require Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley to satisfy unnecessary requirements for mail-in absentee voting that cannot be reasonably and safely accomplished without severely threatening their right to bodily integrity. Because in-person voting even more severely threatens to violate Plaintiffs’ bodily integrity by subjecting them to the significant risk of contracting COVID-19, Defendants’ enforcement of North Carolina’s requirements as to mail-in voting force Plaintiffs to forfeit their right to bodily integrity in order to exercise their right to vote. Should Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley exercise their right to vote by mail under these circumstances, Defendants will have knowingly subjected Plaintiffs to a foreign substance—the novel coronavirus that causes COVID-19— without a therapeutic basis or Plaintiffs’ consent.
RESPONSE: Paragraph 119 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 119 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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120. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the Fourteenth Amendment to the U.S. Constitution, by requiring them to forfeit their right to bodily integrity in order to exercise their right to vote.
RESPONSE: Paragraph 120 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 120 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
121. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of unconstitutional conditions on their rights to vote in violation of the Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
RESPONSE: Paragraph 121 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 121 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
COUNT THREE (SBE Defendants) (Violation of the Rights of Free Speech and Association in violation of the First and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. § 1983) 122. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-121 of the Complaint, and deny all remaining allegations. 123. The First Amendment to the United States Constitution, as applied to the states through the Fourteen Amendment, prohibits an abridgment of the freedom of speech or associational rights. Any burden, regardless of how slight, “must be justified by relevant and
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legitimate state interests sufficiently weighty to justify the limitation.” Norman, 502 U.S. at 288– 89.
RESPONSE: Intervenor-Defendants refer to the Supreme Court’s decision in Norman v. Reed as the best evidence of its contents. Paragraph 123 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 123 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
124. The restrictions on who can assist voters with completing and returning mail- in absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2 effectively prohibits the Organizational Plaintiffs and their members’ core political speech and expressive conduct, which includes assisting voters with requesting and submitting absentee ballot requests in an effort to engage potential voters and encourage them to vote. Plaintiff Schaffer’s individual speech and associational rights are also impaired by N.C. Gen. Stat. § 163-230.2, because she is no longer able to assist as she has in the past. These efforts are particularly important in the midst of the current public health crisis, where for many voting by mail is crucial to protecting their health and the health of their co-habitants and family members, and where the anticipated surge in individuals voting by mail means many will be doing so for the first time and without prior experience. Because of this prohibition, the Organizational Plaintiffs and their members will not be able to effectively engage potentially eligible absentee voters, nor will they be able to effectively facilitate those eligible voters requesting absentee ballots.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 124 constitute legal arguments or conclusions of law to
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which no response is required. To the extent Paragraph 124 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
125. N.C. Gen. Stat. § 163-230.2 therefore chills the Organizational Plaintiffs’ speech and associational rights, and Plaintiff Schaffer’s individual speech and associational rights,69 and does so without being narrowly-tailored to serve a compelling state interest. The restrictions on who can assist voters with completing and submitting absentee ballot requests are not justified by a state interest, especially in light of the current COVID-19 pandemic, where allowing individuals to follow social-distancing guidelines and self- quarantine is crucial to protecting their health and the health of their co-habitants and family members.
RESPONSE: Paragraph 125 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 125 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
COUNT FOUR (SBE Defendants) (Denial of Plaintiffs’ Right to Procedural Due Process in violation of the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1983) 126. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-125 of the Complaint, and deny all remaining allegations. 127. The Due Process Clause of the Fourteenth Amendment prohibits the deprivation of “life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV § 1. “Where the
69 Plaintiffs’ contend that Schaffer’s First Amendment right to free speech and association are restricted under the Anderson/Burdick test, or, alternatively, under exacting scrutiny similar to Meyer v. Grant, 486 U.S. 414, 422–23 (1988).
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government seeks to deprive someone of a liberty interest protected by due process, due process demands that certain procedural safeguards be provided.” United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). A liberty interest that is governed by due process can be created by the Constitution or “may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
RESPONSE: Intervenor-Defendants refer to the Due Process Clause of the Fourteenth Amendment, the Fourth Circuit’s decision in United States v. Baker, and the Supreme Court’s decision in Wilkinson v. Austin as the best evidence of their contents. Paragraph 127 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 127 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
128. At a minimum, “procedural due process requires fair notice of impending state action and an opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d 140, 146 (4th Cir. 2014) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
RESPONSE: Intervenor-Defendants refer to the Fourth Circuit’s decision in Snider Int’l Corp. v. Town of Forest Heights as the best evidence of its contents. Paragraph 128 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 128 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
129. “Proper notice is ‘an elementary and fundamental requirement of due process,’ and must be reasonably calculated to convey information concerning a deprivation.’” Snider Int’l, 739 F.3d at 146 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)); see also Presley v. City of Charlottesville, 464 F.3d 480, 490 (4th Cir. 2006).
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RESPONSE: Intervenor-Defendants refer to the Fourth Circuit’s decision in Snider Int’l Corp. v. Town of Forest Heights as the best evidence of its contents. Paragraph 129 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 129 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
130. As for the opportunity to be heard, “Mathews set forth the familiar three-step inquiry for determining the adequacy of the opportunity to be heard: a balancing of the private interest and the public interest, along with ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.’” Snider Int’l, 739 F.3d at 146 (quoting Mathews, 424 U.S. at 335). “Fundamental to due process is an opportunity to be heard—‘an opportunity which must be granted at a meaningful time.’” Sciolino v. City of Newport News, Va., 480 F.3d 642, 653 (4th Cir. 2007) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
RESPONSE: Intervenor-Defendants refer to the Fourth Circuit’s decisions in Snider Int’l Corp. v. Town of Forest Heights and Sciolino v. City of Newport News, Va. as the best evidence of their contents. Paragraph 130 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 130 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
131. Absent exigent circumstances, due process requires pre-deprivation procedures. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original)); Sciolino, 480 F.3d at 653 (“An opportunity to
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clear your name after it has been ruined by dissemination of false, stigmatizing charges is not ‘meaningful.’”).
RESPONSE: Intervenor-Defendants refer to the Supreme Court’s decision in Cleveland Bd. of Educ. v. Loudermill and the Fourth Circuit’s decision in Sciolino v. City of Newport News, Va. as the best evidence of their contents. Paragraph 131 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 131 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
132. North Carolina law gives all registered North Carolina voters statutory rights to request and cast a mail-in absentee ballot that will be processed and counted, thereby vesting them with liberty interests. Eligible, registered voters enjoy an “individual and personal” right to vote under North Carolina law. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)).
RESPONSE: Intervenor-Defendants refer to the Supreme Court’s decision in Gill v. Whitford as the best evidence of its contents. Paragraph 132 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 132 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
133. However, the SBE Defendants do not afford mail-in absentee voters any notice of or opportunities to cure material defects in their absentee ballot request forms or absentee ballots including their certificate envelopes that will result in rejection, thereby depriving Plaintiffs and other registered North Carolina voters of their liberty interests in requesting and casting a mail-in absentee ballot and exercising their fundamental right to vote.
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RESPONSE: Paragraph 133 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 133 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
134. The risk of erroneous deprivation is high, as these eligible, registered North Carolina voters are entitled by law to request an absentee ballot and to vote an absentee ballot and, therefore, must be provided with an additional procedural safeguard, the opportunity to timely cure any defect that would cause the absentee ballot request form’s rejection or the absentee ballot’s rejection.
RESPONSE: Paragraph 134 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 134 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
135. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by mail-in absentee ballot, some for the first time, and may well make errors on their absentee ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due process requires a cure procedure for these defects.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 135 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 135 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
136. Defendants cannot advance any interests that outweigh the risk of erroneous deprivation. The threat of disenfranchising Plaintiffs and their members far outweighs any increased administrative burden in affording voters an opportunity to cure their absentee ballot
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request form defects or their absentee ballot defects, including any defects on the certificate envelope. Defendants’ interest in conducting fair election administration and preserving election integrity would not be compromised in the slightest, and they would satisfy their weighty interest in abiding by federal constitutional requirements.
RESPONSE: Paragraph 136 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 136 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
137. For the foregoing reasons, SBE Defendants have violated and will continue to violate Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley’s federal constitutional rights to procedural due process.
RESPONSE: Paragraph 137 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 137 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
138. At all relevant times, Defendants have acted under color of state law. RESPONSE: Paragraph 138 contains a legal conclusion to which no response is required. To the extent Paragraph 138 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 139. Defendants have deprived and will continue to deprive Plaintiffs Clark, Cates, Edwards, Priddy, Bentley and all voters seeking to vote by mail of their right to adequate notice and a meaningful opportunity to be heard in order to cure deficiencies with their absentee ballot request forms and their absentee ballots. This wholly fails to meet these minimum requirements of procedural due process, as guaranteed to Plaintiffs by the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
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RESPONSE: Paragraph 139 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 139 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
COUNT FIVE (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 140. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Compliant and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-139 of the Complaint, and deny all remaining allegations. 141. Under Title II of the Americans with Disabilities Act, state and local governments must not impose requirements on participation in public services, programs, or activities, including voting, that screen out individuals with disabilities from fully and equally enjoying those programs and must make reasonable modifications in policies, practices, or procedures, including voting and election procedures, when the modifications are necessary to avoid discrimination on the basis of disability. RESPONSE: Paragraph 141 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 141 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 142. A disability exists under the ADA when an individual has (1) a physical impairment; (2) that affects at least one major life activity; (3) in a substantial way. Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
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RESPONSE: Paragraph 142 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 142 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
143. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which interferes with several major life activities, including breathing. His COPD has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical impairment that has detrimental effects on her health, especially her ability to operate a major bodily function, her endocrine system, and puts her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions, which include being immunocompromised due to taking medications to address complications from a kidney transplant, are physical impairments that puts him at risk of severe illness from COVID-19. This substantially influences his major life activities because the function of his immune system is directly affected. Plaintiff Hutchins is legally blind, which substantially affects a number of his major life activities, such as seeing, reading, writing, and walking. These physical impairments substantially affect the various major life activities of Plaintiffs Clark, Edwards, Priddy, and Hutchins. Accordingly, Plaintiffs Clark, Edwards, Priddy, and Hutchins have disabilities as defined by the ADA and should be provided meaningful access to the ballot through a more accessible mail-in voting process.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 143 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 143 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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144. Plaintiffs Clark, Edwards, and Priddy are unable to safely obtain two witness signatures without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death. Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot unless SBE Defendants eliminate the two-witness signature requirement.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 144 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 144 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
145. Plaintiff Hutchins is prohibited from asking staff and nurses at his nursing facility to assist him with returning an absentee ballot request form, marking and completing an absentee ballot, and submitting an absentee ballot. As a result of the COVID-19 pandemic, his nursing home is closed to visitors and he is not able to receive assistance from his wife in any of these steps in the absentee voting process. Plaintiff Hutchins would be unable to vote by absentee ballot unless SBE Defendants allow nursing home staff to assist him with each of these steps.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 145 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 145 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
146. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, Priddy possess are “at higher risk for severe illness from COVID-19.”
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Defendants’ failure and refusal to ensure that plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitute a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards and Priddy, whose health limits their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the ADA.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 146 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 146 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
147. Defendants’ failure to ensure that voters like Plaintiff Hutchins, who wishes to vote by mail because he is blind, vulnerable to COVID-19 due to his advanced age, and resides in a nursing home, can receive the assistance he needs from nursing home staff to return an absentee ballot request form and complete and submit an absentee ballot is a violation of the ADA.
RESPONSE: Paragraph 147 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 147 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
148. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Title II of the Americans with Disabilities Act.
RESPONSE: Paragraph 148 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 148 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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COUNT SIX (SBE Defendants) (Failure to Provide Reasonable Accommodations in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 149. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-148 of the Complaint, and deny all remaining allegations. 150. Under Section 504 of the Rehabilitation Act, federally funded programs, including state and local programs related to elections and voting, must not discriminate against individuals with disabilities and must make reasonable accommodations to allow individuals with disabilities to access the federal funded program, activity, or service. RESPONSE: Paragraph 150 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 150 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 151. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act. RESPONSE: Intervenor-Defendants admit that the State of North Carolina receives federal funding to conducts its elections. The remaining allegations in Paragraph 151 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 151 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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152. A disability exists under the Rehabilitation Act when an individual has (1) a physical impairment; (2) that affects at least one major life activity; (3) in a substantial way. Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).
RESPONSE: Intervenor-Defendants refer to the Fourth Circuit’s decision in Heiko v. Colombo Sav. Bank, F.S.B. as the best evidence of its contents. The remaining allegations in Paragraph 152 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 152 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
153. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which interferes with several major life activities, including breathing. His COPD has rendered him highly susceptible to complications from COVID-19, a disease that often causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical impairment that has detrimental effects on her health, especially her ability to operate a major bodily function, her endocrine system, and puts her at risk of severe illness from COVID-19. Plaintiff Priddy’s pre-existing conditions, which include being immunocompromised due to taking medications to address complications from a kidney transplant, are physical impairments that put him at risk of severe illness from COVID-19. This substantially influences his major life activities because the function of his immune system is directly affected. Plaintiff Hutchins is legally blind, which substantially affects a number of his major life activities, such as seeing, reading, writing, and walking. These physical impairments substantially affect the major life activities of Plaintiffs Clark, Edwards, Priddy, and Hutchins. Accordingly, Plaintiffs Clark, Edwards, Priddy, and Hutchins have disabilities as defined by the Rehabilitation Act and should be provided meaningful access to vote through a more accessible mail-in voting process.
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RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 153 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 153 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
154. Plaintiffs Clark, Edwards, and Priddy are unable to obtain two witness signatures without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death. Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot unless Defendants eliminate the two-witness signature requirement.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 154 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 154 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
155. Plaintiff Hutchins is prohibited from asking staff and nurses at his nursing facility to assist him with returning an absentee ballot request form, marking and completing an absentee ballot, and submitting an absentee ballot. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-230.2(e)(4), 163-231(b)(1). As a result of the COVID-19 pandemic, his nursing home is closed to visitors and he is not able to receive assistance from his wife in any of these steps in the absentee voting process. Plaintiff Hutchins would be unable to vote by absentee ballot unless SBE Defendants allow nursing home staff to assist him with each of these steps.
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RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding Plaintiff Hutchins and therefore deny them. Intervenor-Defendants refer to N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), and 163230.2(e)(4), 163-231(b)(1) as the best evidence of their contents. The remaining allegations in Paragraph 155 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 155 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
156. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Clark, Edwards, Priddy possess are “at higher risk for severe illness from COVID-19.” Defendants’ failure to ensure that plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitutes a failure to make a reasonable accommodation for those, such as Plaintiffs Clark, Edwards, and Priddy, whose physical impairments limit their ability to have contact with others in this time of public health emergency created by COVID-19, in violation of the Rehabilitation Act.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 156 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 156 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
157. Defendants’ failure to ensure that voters like Plaintiff Hutchins, who wishes to vote by mail because he is blind, vulnerable to COVID-19 due to his advanced age, and resides in a nursing home, can receive the assistance he needs from nursing home staff to return an absentee
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ballot request form and complete and submit an absentee ballot is a violation of Section 504 of the Rehabilitation Act.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding Plaintiff Hutchins and therefore deny them. The remaining allegations in Paragraph 157 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 157 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
158. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
RESPONSE: Paragraph 158 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 158 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
COUNT SEVEN (SBE Defendants) (Disparate Impact Claims in Violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 159. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-158 of the Complaint, and deny all remaining allegations. 160. Under Title II of the Americans with Disabilities Act, States cannot promulgate standards, criteria, or methods of administration that have the effect of discriminating against individuals based on their disabilities.
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RESPONSE: Paragraph 160 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 160 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
161. The Defendants are all public entities covered by Title II of the ADA. RESPONSE: Paragraph 161 contains conclusions of law to which no response is required. To the extent Paragraph 161 contains additional allegations to which a response is required, Intervenor-Defendants deny the allegations. 162. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy and individuals over the age of 65, such as Plaintiff Hutchins, are significantly more likely to risk serious illness or death if they contract COVID-19. Defendants’ enforcement of current voting regulations will unnecessarily expose Plaintiffs Clark, Edwards, Priddy, and Hutchins to an unjustifiable risk of severe illness from COVID-19 in order to vote. This will result in disparate impact upon Plaintiffs Clark, Edwards, Priddy, and Hutchins if they attempt to vote because they will be more harshly affected by COVID-19, in violation of the ADA. RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 162 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 162 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 163. Defendants will be unable to show that the current voting regulations are justified by legitimate state interests.
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RESPONSE: Paragraph 163 contains conclusions of law to which no response is required. To the extent Paragraph 163 contains additional allegations to which a response is required, Intervenor-Defendants deny the allegations.
164. The disparate impact that will result from enforcing these conditions has the effect of prohibiting individuals with disabilities from participating in the November 3, 2020 general election, in violation of Title II of the ADA.
RESPONSE: Paragraph 164 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 164 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
COUNT EIGHT (SBE Defendants) (Disparate Impact Claims in Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794) 165. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-164 of the Complaint, and deny all remaining allegations. 166. Section 504 of the Rehabilitation Act prohibits federally funded programs, including state and local programs related to elections and voting, from enacting facially neutral policies that have a discriminatory impact on persons within a protected class. RESPONSE: Paragraph 166 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 166 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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167. The State of North Carolina receives federal funding to conduct its elections. Thus, Defendants are obligated to comply with the Rehabilitation Act.
RESPONSE: Intervenor-Defendants admit that the State of North Carolina receives federal funding to conduct its elections. The remaining allegations in Paragraph 167 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 167 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
168. The CDC has declared that individuals with co-morbidities such as Plaintiffs Clark, Edwards, and Priddy and individuals over the age of 65, such as Plaintiff Hutchins are significantly more likely to risk serious illness or death if they contract COVID-19. Defendants’ enforcement of current voting requirements will unnecessarily expose Plaintiffs Clark, Edwards, Priddy, and Hutchins to an unjustifiable risk of severe illness from COVID-19 in order to vote. This will result in disparate impact upon Plaintiffs Clark, Edwards, Priddy, and Hutchins if they attempt to vote because they will be more harshly affected by COVID-19, in violation of the Rehabilitation Act.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding the individual Plaintiffs and therefore deny them. The remaining allegations in Paragraph 168 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 168 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
169. Defendants will be unable to show that the current voting regulations are justified by legitimate state interests.
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RESPONSE: Paragraph 169 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 169 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
170. The disparate impact that will result from enforcing these conditions has the effect of prohibiting individuals with disabilities from participating in the November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
RESPONSE: Paragraph 170 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 170 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
COUNT NINE (Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508) 171. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. RESPONSE: Intervenor-Defendants incorporate by reference their responses to Paragraphs 1-170 of the Complaint, and deny all remaining allegations. 172. Section 208 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10508, provides: “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” RESPONSE: Intervenor-Defendants refer to 52 U.S.C. § 10508 as the best evidence of its contents. The remaining allegations in Paragraph 172 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 172 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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173. The word “vote” is expressly defined in 52 U.S.C. § 10310(c)(1) as follows: The terms “vote” or “voting” shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this chapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election. OCA-Greater Houston v. Texas, 867 F.3d 604, 614–15 (5th Cir. 2017) (quoting 52 U.S.C. § 10310(c)(1)) (“‘To vote,’ therefore, plainly contemplates more than the mechanical act of filling out the ballot sheet.) RESPONSE: Intervenor-Defendants refer to 52 U.S.C. § 10310(c)(1) and the Fifth Circuit’s decision in OCA-Greater Houston v. Texas as the best evidence of their contents. The remaining allegations in Paragraph 173 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 173 contains additional allegations to which a response is required, Intervenor-Defendants deny them. 174. Under Section 208, a voter who is blind, disabled, or unable to read or write (“208covered voter”) possesses the right to choose any person other than their employer/union representative—regardless of whether the person is a near relative or legal guardian—to assist them with the voting process, including the steps necessary to obtain, cast, and submit an absentee ballot. See 52 U.S.C. § 10508; OCA-Greater Houston, 867 F.3d at 614–15. RESPONSE: Intervenor-Defendants refer to 52 U.S.C. § 10508 and the Fifth Circuit’s decision in OCA-Greater Houston v. Texas as the best evidence of their contents. The remaining allegations in Paragraph 174 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 174 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
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175. North Carolina restricts absentee voters to only assistance from their near relatives, verifiable legal guardians, or MAT team members, for absentee ballot request return, absentee ballot marking and completion, and absentee ballot return. Unlike for completing an absentee ballot request form, there is no similar exception for any of these steps for absentee voters who need assistance by reason of their blindness, disability, or inability to read or write. See N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163- 230.2(e)(4), 163-231(b)(1).
RESPONSE: Intervenor-Defendants refer to N.C. Gen. Stat. §§ 163-226.3(a)(4), 163226.3(a)(5), 163-230.2(e)(4), and 163-231(b)(1) as the best evidence of their contents. The remaining allegations in Paragraph 175 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 175 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
176. By imposing additional restrictions on who can assist a Section 208-covered voter who needs assistance with submitting their absentee ballot request form, marking and completing their absentee ballots, and returning their absentee ballots, specifically, by limiting valid assistors to the voter’s near relative, legal guardian, or county board multi- partisan team members, N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-230.2(e)(4), and 163-231(b)(1) violate Section 208 of the VRA by failing to allow these voters to choose any assistor who is not their employer or union representative.
RESPONSE: Paragraph 176 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 176 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
177. Defendants’ failure to allow eligible voters who need assistance by reason of their blindness, disability or ability to read or write in any part of the absentee voting process, from any
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person of their choice, other than their employers or union officials, as described herein, is a violation of Section 208. Plaintiff Walter Hutchins is harmed by these restrictions on assistance with absentee ballot request, absentee ballot marking and completion, and absentee ballot submission, and the corresponding lack of any disability- based exceptions. Plaintiff Hutchins is blind and requires assistance to submit an absentee ballot request form, and assistance in reading, marking, and submitting his ballot according to his preferences.
RESPONSE: Intervenor-Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations regarding Plaintiff Hutchins and therefore deny them. The remaining allegations in Paragraph 177 constitute legal arguments or conclusions of law to which no response is required. To the extent Paragraph 177 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
178. By depriving Plaintiff Hutchins of rights and privileges under Section 208 of the VRA under the color of state law, Defendants have violated and are liable under 42 U.S.C. § 1983.
RESPONSE: Paragraph 178 contains only legal arguments or conclusions of law to which no response is required. To the extent Paragraph 178 contains additional allegations to which a response is required, Intervenor-Defendants deny them.
PRAYER FOR RELIEF Plaintiffs respectfully request that this Court:
(a) Assume jurisdiction over this matter; (b) Declare that Defendants’ administration and enforcement of N.C. Gen. Stat. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h) (imposing 25-day voter registration deadlines); N.C. Gen. Stat. § 163-230.2(a) (requiring requests for absentee ballots be made by a form created by the State Board); N.C. Gen. Stat. § 163-230.2(c), (e), and (e1) (imposing restrictions on absentee ballot request assistance); N.C. Gen. Stat. § 163-231(a) (imposing the double-witness certification
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requirement); N.C. Gen. Stat. § 163- 230.2(a)(4), (f) (to the extent disallows election officials from accepting any proof of residency document acceptable under the Help America Votes Act (HAVA)), N.C. Gen. Stat. § 163-227.6(c) (requiring uniform hours in precincts); and N.C. Gen. Stat. § 163- 42(b) (requiring a majority of poll workers to come from the precinct in which they serve), and the Defendants’ failure to expand voter registration via online portals available through DHHS services, failure to establish contactless drop boxes for absentee ballots, and to establish mechanisms for requesting absentee ballots by phone, email, and online, failure to establish mechanisms to cure deficient absentee ballot requests and absentee ballots, failure to allow for submission of FWAB ballots, failure to provide PPE to county boards of election for use during in-person voting, and failure to establish a more accessible, centralized way in which voters and advocates can monitor precinct consolidation (and thus advocate against harmful precinct consolidations), in the context of the pandemic, taken individually or in combination, violate the First and Fourteenth Amendments to the U.S. Constitution, as enforced through 42 U.S.C. § 1983;
(c) Declare that Defendants’ administration and enforcement of N.C. Gen. Stat. § 163230.2(c), (e), and (e1) (imposing restrictions on absentee ballot request assistance), N.C. Gen. Stat. § 163-231(a) (imposing the double-witness certification requirement), and failure to expand voter registration via online portals available through DHHS services, establish contactless drop boxes for absentee ballots, establish mechanisms for requesting absentee ballots by phone, email, and online, in the context of the pandemic, taken individually or in combination, violate the unconstitutional condition doctrine and thereby Plaintiffs’ First and Fourteenth Amendment right to bodily integrity, as enforced through 42 U.S.C. § 1983;
(d) Declare that Plaintiffs’ First Amendment associational rights are violated by N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-230.2(a), 163-230.2(e)(4), and 163-231(b)(1);
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(e) Declare that the lack of a cure mechanism for Plaintiffs’ mail-in absentee ballot

request forms and mail-in absentee ballots violates their rights to procedural due process;

(f) Declare that N.C. Gen. Stat. §§ 163-226.3(a)(4)-(a)(6), 163-230.2(e)(4), 163-

231(a), and 163-231(b)(1) violate Title II of the Americans with Disabilities Act, 42 U.S.C. §§

12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794;

(g) Declare that N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163- 230.2(e)(4),

and 163-231(b)(1) violate Section 208 of the Voting Rights Act, 52 U.S.C. § 10508;

(h) Preliminarily and permanently enjoin Defendants from administering and enforcing

during the COVID-19 pandemic:

i.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), imposing 25-day voter

registration deadlines;

ii. N.C. Gen. Stat. § 163-230.2(a), requiring requests for absentee ballots be

made by a form created by the State Board of Elections;

iii. N.C. Gen. Stat. § 163-230.2(a)(4), (f), to the extent that it limits the proof

of residency documents that voters must submit with their absentee ballot

request forms to only a North Carolina driver’s license number, special

identification card number, or the last four digits of his or her Social

Security number, and instead allow election officials to accept any proof of

residency document acceptable under the Help America Votes Act

(HAVA);

iv. N.C. Gen. Stat. §§ 163-226.3(a)(4), 163-226.3(a)(5), 163-230.2(e)(4), 163-

231(a), and 163-231(b)(1), imposing restrictions on assistance for absentee

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ballot request return, absentee ballot marking and completion, and absentee ballot submission; v. N.C. Gen. Stat. § 163-231(a), imposing the double-witness certification requirement; vi. N.C. Gen. Stat. § 163-227.6(c), requiring uniform hours in precincts; and vii. N.C. Gen. Stat. § 163-42(b), requiring a majority of poll workers to come from the precinct in which they serve. (i) Preliminarily and permanently enjoin Defendants from violating Plaintiffs’ constitutional and federal statutory rights with respect to any election in the state during the COVID-19 pandemic. (j) Order the SBE Defendants to extend the voter registration deadline in N.C. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), until 5:00pm on the last Saturday of early voting and the DOT and DHHS Defendants to process voter registrations online and received in their offices up until and including 5:00pm on the last Saturday of early voting during the COVID-19 pandemic. (k) Order Defendants to implement measures to ensure eligible North Carolinians are able to vote absentee by mail, with respect to any election in the state during the COVID-19 pandemic, including:
i. Expanding voter registration via online portals available through DHHS
services;
ii. Establishing contactless drop boxes for absentee ballots; iii. Establishing mechanisms for requesting absentee ballots by phone, email,
and online;
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iv. Permitting election officials to accept any proof of residency document
acceptable under the Help America Votes Act (HAVA) as acceptable forms of identification with absentee ballot requests;
v. Establishing mechanisms to cure deficient absentee ballot requests and
absentee ballots; Establishing a mechanism for accepting FWAB ballots;
vi. Establishing a more accessible, centralized way in which voters and
advocates can monitor precinct consolidation; and
vii. Permitting voters who for reason of blindness, disability, or an inability to
read or write, require assistance to return an absentee ballot request form, mark and complete an absentee ballot, and/or submit an absentee ballot, to obtain assistance from anyone who is not their employer or union representative. (l) Order the SBE Defendants to permit mail-in absentee voters to cast a downloadable Federal Write-in Absentee Ballot (“FWAB”), if and only if their timely-requested absentee ballot has not arrived in time for the voter to timely cast that ballot so that it will be counted; (m) Order Defendants to implement a remedial plan to educate voters regarding their options to register to vote and obtain and cast a ballot. (n) Retain jurisdiction to monitor Defendants’ compliance with this Court’s judgment; (o) Grant Plaintiffs their reasonable costs and attorneys’ fees incurred in bringing this action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and as otherwise permitted by law; and (p) Grant such other relief as this Court deems just and proper.
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RESPONSE: In answer to the allegations in Plaintiffs’ Prayer for Relief, IntervenorDefendants deny all allegations. Intervenor-Defendants deny that Plaintiffs are entitled to any relief—legal, equitable, or otherwise.
REPUBLICAN COMMITTEE INTERVENORS’ AFFIRMATIVE DEFENSES First Affirmative Defense
Plaintiffs’ Complaint fails to state a claim upon which relief can be granted. Second Affirmative Defense
Plaintiffs lack standing to bring some or all of the claims asserted in this suit. Third Affirmative Defense
Plaintiffs have not sustained injury or damage as a result of any actions taken by Defendants and Intervenor-Defendants and are thus barred from asserting any claim against them.
Fourth Affirmative Defense Private causes of action are not available under some or all of the constitutional provisions on which Plaintiffs’ claims rely.
Fifth Affirmative Defense All or part of the relief sought by Plaintiffs would deprive Intervenor-Defendants of their right to Equal Protection of the Laws, protected by the Fourteenth Amendment to the United States Constitution.
Sixth Affirmative Defense The political question doctrine excludes Plaintiffs’ claims from judicial review.
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Seventh Affirmative Defense

All or part of the relief sought by Plaintiffs would violate Article I, section 4, of the United

States Constitution by usurping the authority of the North Carolina Legislature to set the time,

places, and manner of electing United States Senators and Representatives.

Eighth Affirmative Defense

Intervenor-Defendants reserve the right to amend this pleading to respond to new claims

or allegations by Plaintiffs and to assert additional defenses or counterclaims as appropriate.

Respectfully submitted,

Dated: June 18, 2020
Bobby Burchfield* Matthew Leland* KING & SPALDING LLP 1700 Pennsylvania Avenue, NW 2nd Floor Washington, DC 20006-4707 Telephone: 202.737.0500 Facsimile: 202.626.3737 Bburchfield@kslaw.com Mleland@kslaw.com

By: /s/ R. Scott Tobin
R. Scott Tobin (N.C. Bar No. 34317) TAYLOR ENGLISH DUMA LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 404.640.5951 stobin@taylorenglish.com
Attorney for Republican Committee Intervenors

Attorneys for Republican Committee Intervenors

*Seeking Pro Hac Vice Admission

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457

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,

Intervenors,

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and REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, and NORTH CAROLINA REPUBLICAN PARTY,
Proposed Republican Committee Intervenors.
MEMORANDUM IN SUPPORT OF THE REPUBLICAN COMMITTEES’ MOTION TO INTERVENE
Proposed Intervenor-Defendants the Republican National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), and North Carolina Republican Party (“NCRP”) (collectively the “Republican Committees”) move to intervene in the above-captioned case pursuant to Rule 24 of the Federal Rules of Civil Procedure.
INTRODUCTION The Republican Committees seek to intervene in this case to uphold the North Carolina election laws regarding voter registration, mail-in absentee ballots, in-person early voting, and Election Day administration challenged in this action (the “Voting Laws”). The Voting Laws are necessary for a fair, secure, and orderly administration of the November 3, 2020 general election, but plaintiffs allege that, “in light of the COVID-19 pandemic, . . . the Voting Laws unduly burden Plaintiffs’ rights to vote in violation of the First and Fourteenth Amendments” and violate Federal law. First Amended Compl., ECF No. 8 at ¶¶ 3, 84-178. Plaintiffs’ lawsuit risks imposing rushed changes to North Carolina’s election procedures and threatens the Republican Committees’ interest in maintaining the lawfully enacted structure of the upcoming election as they seek to support Republican candidates.
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The Republican Committees have a right to intervene under the liberal standard of Rule 24. They have an interest in protecting the integrity of the voting process and maintaining the rules that will guide their expenditure of funds to help elect Republican candidates at all levels of Government. Because no party in the case can adequately represent the specific interests of the Republican Committees, and granting their motion will not jeopardize the Court’s schedule for the case, the Republican Committees urge the Court to grant their timely request for intervention.
INTERESTS OF THE REPUBLICAN COMMITTEES The RNC, NRSC, and NRCC are national committees of the Republican Party, as defined by 52 U.S.C. § 30101(14), that help elect Republican candidates to federal, state, and local offices in North Carolina and throughout the United States. All three national committees have raised contributions and spent substantial amounts in North Carolina and elsewhere to develop and promote the national Republican platform, recruit Republican candidates for office, coordinate fundraising and election strategies, and lead voter registration, voter education, and “get-out-thevote” (“GOTV”) activities up to and on election day. Among their voter outreach, the national party committees inform individuals about the procedures in each state for voting lawfully, including the procedures for early and absentee voting. The NCRP is a North Carolina state political party organization recognized under state and federal law. See 11 C.F.R. 100.15; N.C. GS § 163-96. The NCRP is the statewide organization representing Republican candidates at the state and local level, as well as Republican voters throughout the State of North Carolina. It supports the election of Republican candidates through fundraising, voter registration, get-out-the-vote drives, and other campaign activities.
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STATUS OF THE CASE Plaintiffs filed their complaint on May 22, 2020, less than four weeks ago. On June 5, 2020, they filed a First Amended Complaint and a motion for a preliminary injunction. Briefs in opposition to the motion for preliminary injunction have not yet been filed and are not due until June 19, 2020. On June 10, 2020, the Honorable Philip E. Berger, President Pro Tempore of the North Carolina Senate, and Honorable Timothy K. Moore, Speaker of the North Carolina House of Representatives, moved to intervene in their official capacities. The Court granted their motion to intervene by text order on June 12, 2020, followed by a written order on June 15.
STANDARD FOR INTERVENTION The Republican Committees are all eligible to intervene both by right and by permissive intervention. See Fed. R. Civ. P. 24(a)(2) (providing for intervention by right); Fed. R. Civ. P. 24(b) (providing for permissive intervention). Rule 24 is liberally construed with all doubts resolved in favor of the proposed intervenor. E.g., Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (noting the Fourth Circuit’s “liberal” approach); South Dakota ex rel Barnett v. U.S. Dep’t of Interior, 317 F.3d 783, 785 (8th Cir. 2003) (noting that Rule 24 should be liberally construed with all doubts resolved in favor of the proposed intervenor). Indeed, courts around the country have routinely recognized that national and state-level major political parties should be allowed to intervene in lawsuits seeking to enjoin the enforcement of election laws. See, e.g., League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20-cv-00024, 2020 WL 2090678, at *2 (W.D. Va. Apr. 30, 2020); Democratic National Committee v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1505640, at *5 (W.D. Wis. Mar. 28, 2020); Republican National Committee v. Newsom, No. 2:20-cv-01055-MCE-CKD, 2020 WL 3074351, at *1 (E.D. Cal. Jun. 10, 2020); Nielsen v. DeSantis, No. 4:20-cv-00236-RH-MJF, Dkt. 101 (N.D. Fla. May 28, 2020).
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GROUNDS FOR INTERVENTION I. THE REPUBLICAN COMMITTEES’ MOTION IS TIMELY
Whether seeking intervention by right or permissive intervention, the motion must be timely. Fed. R. Civ. P. 24(a) and (b)(1); Spring Const. Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980). The passage of time is one factor, but “the most important consideration is whether the delay has prejudiced the other parties.” Spring Const. Co., 614 F.2d at 377. The Republican Committees’ motion is timely: it is filed less than two weeks after the Amended Complaint and will not prejudice any party. With this motion, the Republican Committees file their answer to the amended complaint, and they will file their opposition to the motion for preliminary injunction in accordance with the schedule set by the Court. Thus, allowing the Republican Committees to intervene will not alter the current briefing schedule in any way. II. THE REPUBLICAN COMMITTEES HAVE A RIGHT TO INTERVENE
Under Federal Rule of Civil Procedure 24(a)(2) a court must permit anyone to intervene if the movant (1) “has an interest in the subject matter of the action,” (2) is situated so that “disposition of the action may practically impair or impede the movant’s ability to protect that interest,” and (3) has an interest that “is not adequately represented by the existing parties.” Feller, 802 F.2d at 729 (quoting Newport News Shipbuilding and Drydock Co. v. Penn. Shipbuilders’ Ass’n, 646 F.2d 117 (4th Cir. 1981)).
As for the first requirement, the Republican Committees have direct and significant interests in the Voting Laws, which are designed to ensure “the integrity of [the] election process,” Eu v. San Fran. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989), and the “orderly administration” of elections, Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008) (op. of Stevens, J.). See also Hill, 169 N.C. at 415, 86 S.E.2d at 356. If granted, Plaintiffs’ request for
5
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judicial modification of the Voting Laws will interfere with the Republican Committees’ interests by upsetting its current plans for voter outreach, and by jeopardizing the ability of the State to run a fair, secure, and orderly election. Courts generally recognize that political parties and voters have an interest in litigation that might impose changes in voting procedures affecting candidates in a particular party, as well the voters who are associated with that party. See Ohio Democratic Party v. Blackwell, No. 2:04-CV-1055, 2005 WL 8162665, at *2 (S.D. Ohio Aug. 26, 2005).
The second requirement is satisfied for similar reasons. See, e.g. Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989) (citing Hobson v. Hansen, 44 F.R.D. 18, 30 (D.D.C 1968)) (noting the two requirements are closely related). If Plaintiffs prevail in this case, the procedures for voting will be dramatically changed, safeguards adopted by the Legislature will be eliminated shortly before the November general election, voters will be confused by the changes, and confidence in elections will be undermined. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (“Court orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”). National party committees, in turn, will be required to spend substantial resources informing their Republican voters of changes in the law amid the inevitable confusion, which will impede the committees’ ability to reach a larger population that might participate in the voting process.
With regards to the third requirement, the inadequate representation of the interest by the existing parties, the movant must only show that “representation of his interest may be inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538, 92 S. Ct. 630, 636, 30 L. Ed. 2d 686 (1972) (emphasis added; quotation marks omitted).
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The Defendants and Republican legislators who have intervened in their official capacities represent the general public’s interest in fair and reliable elections, but those other parties do not share the Republican Committees’ interest in electing particular, Republican candidates. Moreover, the Defendants and Republican legislators must take account of other, more general concerns that may diverge from the particular interests of the Republican Committees, including the views of opposing political parties, the burden of litigation on the state budget, and state officials’ “desires to remain politically popular and effective leaders.” See Meek v. Metro Dade Cty., 985 F.2d 1471, 1478 (11th Cir. 1993). Because the Republican Committees’ candidates “actively seek [election or] reelection in contests governed by the challenged rules,” and because their members’ ability to participate in those elections is governed by the challenged rules, movants have a distinct interest in “demand[ing] adherence” to the current lawfully enacted requirements. Shays v. FEC, 414 F.3d 76, 88 (D.C. Cir. 2005). Accordingly, the Defendants and Republican legislator intervenors do not adequately represent the Republican Committees, which weighs in favor of intervention. See Declarations of Christopher White (RNC) (attached as Exhibit A), Ryan Dollar (NRSC) (Ex. B), Erin Clark (NRCC) (Ex. C), and Philip Thomas (NCRP) (Ex. D). III. THE REPUBLICAN COMMITTEES EXCEED THE STANDARDS FOR
PERMISSIVE INTERVENTION The Republican Committees’ interests in maintaining the current lawfully enacted structure of the competitive environment and their interest in fair elections support granting permissive intervention under Rule 24(b)(2). Permissive intervention is appropriate when a movant satisfies three requirements: (1) the motion is timely; (2) the defenses or counterclaims have a question of law or fact in common with the main action; and (3) intervention will not result in undue delay or prejudice to the existing parties. See League of Women Voters of Va. 2020 WL 2090679, at *3; Carcano v. McCrory, 315 F.R.D. 176, 178 (M.D.N.C. 2016).
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As shown above, the Republican Committees’ intervention in this case would not cause undue delay or unfairly surprise or prejudice the existing parties. See id. at *5.
The Republican Committees would also seek to preserve North Carolina’s existing Voting Laws, and their positions “share[] a common factual and legal basis with the main action” that satisfies the standard for permissive intervention. See id. at *3. Indeed, several federal courts recently granted intervention to national party committees in similar cases challenging state election laws on grounds arising from the COVID-19 pandemic, recognizing that the committees raised common factual and legal questions to the named defendants. See id. (“The [Republican Party] introduces no unrelated, additional claims into this suit, and its argument that enjoining the witness signature requirement will dilute the votes of its members is a direct counter to the main thrust of Plaintiffs’ complaint.”); Democratic National Committee, 2020 WL 1505640, at *5 (“[T]here is no reasonable dispute that their proposed defense of the challenged laws shares common questions of law and fact with the main action.”). Because the Republican Committees are in harmony with Defendants’ and the intervening legislators’ positions, and the Republican Committees will not introduce ancillary issues in the case, the requirements for permissive intervention are satisfied.
CONCLUSION For the foregoing reasons, the RNC, NRSC, NRCC, and NCRP urge the Court to grant their motion to intervene and admit them with all the rights of a defendant in this litigation.

Dated: June 18, 2020

Respectfully submitted,

/s/ R. Scott Tobin R. Scott Tobin (N.C. Bar No. 34317) Taylor English Duma LLP 4208 Six Forks Road, Suite 1000

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Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: stobin@taylorenglish.com Bobby R. Burchfield (pro hac vice pending) Matthew M. Leland (pro hac vice pending) King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 bburchfield@kslaw.com mleland@kslaw.com Counsel for the Republican Committee Intervenors
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CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for this Memorandum is less than 6250 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of the word-processing system used to prepare the brief.
/s/ R. Scott Tobin R. Scott Tobin
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457 [PROPOSED] ORDER

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,

Intervenors,

Case 1:20-cv-00457-WO-JLW Document 34 Filed 06/19/20 Page 11 of 12

and
Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, and North Carolina Republican Party,
Proposed Republican Committee Intervenors.

It is hereby ORDERED that Republican Committees’ Motion to Intervene is GRANTED.

SO ORDERED.

DATED:

William L. Osteen, Jr. United States District Judge

Case 1:20-cv-00457-WO-JLW Document 34 Filed 06/19/20 Page 12 of 12

EXHIBIT A
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457

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,

Intervenors,

Case 1:20-cv-00457-WO-JLW Document 334-1 Filed 06/189/20 Page 2 of 4

and Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, and Republican Party of North Carolina,
Proposed Republican Committee Intervenors.
DECLARATION OF CHRISTOPHER WHITE IN SUPPORT OF REPUBLICAN COMMITTEES’ MOTION TO INTERVENE
I, Christopher White, state the following based on my personal knowledge: 1. I am over 18 years of age and competent to make this Declaration. 2. I am Senior Counsel for the Republican National Committee (“RNC”). 3. I have reviewed the Republican Committees’ Motion to Intervene, Memorandum in support of the motion, and proposed Answer. 4. I make this Declaration in support of Republican Committees’ motion for an order allowing the RNC to participate as a party defendant to this action, permitting the RNC to respond to the pleadings in this action and participate at trial, and for such other relief that may be proper. 5. The RNC is the national organization of the Republican Party. It is an unincorporated organization registered with the Federal Election Commission pursuant to 52 U.S.C. § 30101(14). 6. A critical part of the RNC’s mission is to support Republican candidates at all levels—local, state, and national—in elections throughout the country, including in North Carolina. 7. In the 2020 election, the RNC will be supporting a full slate of candidates for local, state, and national offices, up to and including the Office of President. For this reason, the RNC
2
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has a strong interest, on behalf of itself, its members, and those who identify with it, to protect the integrity, fairness, and security of election procedures throughout the United States, including in North Carolina, and in insuring that properly enacted statutes are respected, enforced, and followed.
8. No other party presently in this case adequately shares the interests of the RNC in protecting the electoral prospects of Republican candidates who will appear on the ballot on November 3, 2020.
9. The RNC requests approval of the Republican Committees’ motion to intervene on an expedited basis, and does not seek to intervene for the purpose of delay.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: June 18, 2020

___________________________________ Christopher White

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EXHIBIT B
Case 1:20-cv-00457-WO-JLW Document 34-2 Filed 06/19/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457

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,

Intervenors,

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and Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, and Republican Party of North Carolina,
Proposed Republican Committee Intervenors.
DECLARATION OF RYAN G. DOLLAR IN SUPPORT OF REPUBLICAN COMMITTEES’ MOTION TO INTERVENE
I, Ryan G. Dollar, state the following based on my personal knowledge: 1. I am over 18 years of age and competent to make this Declaration. 2. I am General Counsel for the National Republican Senatorial Committee (“NRSC”). 3. I have reviewed the Republican Committees’ Motion to Intervene, Memorandum in support of the motion, and proposed Answer. 4. I make this Declaration in support of Republican Committees’ motion for an order allowing the NRSC to participate as a party defendant to this action, permitting the NRSC to respond to the pleadings in this action and participate at trial, and for such other relief that may be proper. 5. The NRSC is the national organization of the Republican Party devoted to electing Republican Senators. It is registered with the Federal Election Commission pursuant to 52 U.S.C. § 30101(14). 6. A critical part of the NRSC’s mission is to support Republican candidates for the United States Senate in elections throughout the country, including in North Carolina.
2
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7. In the 2020 election, the NRSC will be supporting incumbent Republican Senator Thom Tillis. For this reason, the NRSC has a strong interest in protecting the integrity, fairness, and security of election procedures throughout the United States, including in North Carolina, and in insuring that properly enacted statutes are respected, enforced, and followed.
8. No other party in this case shares the interests of the NRSC in protecting the electoral prospects of Senator Tillis, who will appear on the ballot on November 3, 2020.
9. The NRSC requests approval of the Republican Committees’ motion to intervene on an expedited basis, and does not seek to intervene for the purpose of delay.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: June 18, 2020

___________________________________ Ryan G. Dollar

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EXHIBIT C
Case 1:20-cv-00457-WO-JLW Document 34-3 Filed 06/19/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as Transportation Secretary; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as Secretary of Health and Human Services,

Civil Action No. 20-cv-00457

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,

Intervenors,

Case 1:20-cv-00457-WO-JLW Document 34-3 Filed 06/19/20 Page 2 of 4

and Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, and Republican Party of North Carolina,
Proposed Republican Committee Intervenors.
DECLARATION OF ERIN CLARK IN SUPPORT OF REPUBLICAN COMMITTEES’ MOTION TO INTERVENE
I, Erin Clark, state the following based on my personal knowledge: 1. I am over 18 years of age and competent to make this Declaration. 2. I am counsel for the National Republican Congressional Committee (“NRCC”). 3. I have reviewed the Republican Committees’ Motion to Intervene, Memorandum in support of the motion, and proposed Answer. 4. I make this Declaration in support of Republican Committees’ motion for an order allowing the NRCC to participate as a party defendant to this action, permitting the NRCC to respond to the pleadings in this action and participate at trial, and for such other relief that may be proper. 5. The NRCC is the national organization of the Republican Party dedicated to electing Republicans to the U.S. House of Representatives. It is registered with the Federal Election Commission pursuant to 52 U.S.C. § 30101(14). 6. A critical part of the NRCC’s mission is to support Republican candidates for the U.S. House of Representatives in elections throughout the country, including in North Carolina. 7. In the 2020 election, the NRCC will be supporting candidates for Congress. For this reason, the NRCC has a strong interest in protecting the integrity, fairness, and security of
2
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election procedures throughout the United States, including in North Carolina, and in insuring that properly enacted statutes are respected, enforced, and followed.
8. No other party in this case shares the interests of the NRCC in protecting the electoral prospects for Republican candidates who will appear on the ballot on November 3, 2020.
9. The NRCC requests approval of the Republican Committees’ motion to intervene on an expedited basis, and does not seek to intervene for the purpose of delay.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: June 18, 2020

___________________________________ Erin Clark

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EXHIBIT D
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs,
vs.
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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Civil Action No. 20-cv-457
PLAINTIFFS’ OPPOSITION TO PROPOSED INTERVENORS
REPUBLICAN COMMITTEES’ MOTION TO INTERVENE

Defendants,

Case 1:20-cv-00457-WO-JLW Document 43 Filed 06/22/20 Page 1 of 32

PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; TIMOTHY K. MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
Defendant-Intervenors.
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TABLE OF CONTENTS INTRODUCTION .............................................. 1 FACTUAL BACKGROUND ........................................ 2 ARGUMENT .................................................. 4 I. The Republican Committees are not entitled to
intervene as of right. ................................ 4 a. The Republican Committees have not shown a
significantly protectable interest that would be inadequately represented by the current parties. ......................................... 5 b. The existing Defendants adequately represent the interests asserted by the Defendants and the NCGA Intervenors. ........................... 10 II. Permissive intervention is not warranted. ............ 15 CONCLUSION ............................................... 23
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TABLE OF AUTHORITIES
Page(s)
Cases
American Association of People with Disabilities v. Herrera, 257 F.R.D. 236 (D.N.M. 2008) .... 9, 10, 12, 20
Carcano v. McCrory, 315 F.R.D. 176 (M.D.N.C. 2016) ......................... 16
Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) ................................... 12, 18
Columbus-America Discovery Grp. v. Atlantic Mut. Ins. Co., 974 F.2d 450 (4th Cir. 1992) ................. 23
Commonwealth of Virginia v. Westinghouse Electric Corp.,542 F.2d 214 (4th Cir. 1976) ..................... 10
Crawford v. Marion County Election Board, 553 U.S. 181 (2008) ..................................... 8
Democratic National Committee v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1505640 (W.D. Wis. Mar. 28, 2020) modified on reconsideration, No. 20-CV-249-WMC, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020) .................... 8, 20
Eu v. San Francisco County Democratic Central Committee,489 U.S. 214 (1989) ........................... 8
Hill v. Skinner, 169 N.C. 405 (1915) ..................................... 8
Issa v. Newsom, No. 2:20-cv-01055-MCE-CKD, 2020 WL 3074351 (E.D. Cal. Jun. 10, 2020) .......................... 15, 20
JLS, Inc. v. Public Service Commission of West Virgina, 321 F. App’x 286 (4th Cir. 2009) ............ 5, 9
Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir. 1993) ......................... 14
ii
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Nader v. Federal Election Commission, 725 F.3d 226 (D.C. Cir. 2013) ........................... 9
North Carolina Democratic Party v. Berger, No. 1:17-CV-1113, 2018 WL 7982918 (M.D.N.C. Feb. 7, 2018) ................................. 6
Ohio Democratic Party v. Blackwell, No. 2:04-CV-1055, 2005 WL 8162665 (S.D. Ohio Aug. 26, 2005) ............................... 7
One Wisconsin Institute, Inc. v. Nichol, 310 F.R.D. 394 (W.D. Wis. 2015) ........................ 19
Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019) ........................... 18
Priorities USA v. Nessel, No. 19-13341, 2020 WL 2615504 (E.D. Mich. May 22, 2020) .............................. 22
Purcell v. Gonzalez, 549 U.S. 1 (2006) ....................................... 6
Scott v. Bond, 734 F. App’x 188 (4th Cir. 2018) ........................ 4
Shays v. Federal Election Commission, 414 F.3d 76 (D.C. Cir. 2013) ........................ 9, 13
Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013) ................... 10, 14, 23
Teague v. Bakker, 931 F.2d 259 (4th Cir. 1991) ......................... 5, 9
Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972) .................................... 14
Docketed Cases
Nielson v. DeSantis , No. 4:20-cv-00236-RH-MJF (N.D. Fla. May 28, 2020) .............................................. 21, 22
iii
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Rules Fed. R. Civ. P. 24 ............................. 3, 8, 12, 19 Fed. R. Civ. P. 24(a) .............................. 4, 9, 15 Fed. R. Civ. P. 24(b) .................................... 16
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INTRODUCTION Plaintiffs brought this action to mitigate the impact of the COVID-19 crisis on North Carolina’s upcoming general election and safeguard the constitutional and voting rights of all North Carolina voters. The Proposed Intervenors the Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, and North Carolina Republican Party (the “Republican Committees”) claim to assert an interest in “fair, secure, and orderly administration of the November 3, 2020 general election” Mem. in Support of the Republican Committees’ Mot. to Intervene, ECF No. 34 at 2, but this is no different than a general interest in the enforcement of North Carolina’s laws, which is adequately protected by the current Defendants and Defendant-Intervenors. The only specific interest asserted by the Republican Committees is their assertion that this lawsuit “threatens the Republican Committees’ interest in maintaining the lawfully enacted structure of the upcoming election as they seek to support Republican candidates.” Id. (emphasis added). But this partisan concern is not a significant protectable interest in this matter, which concerns election procedures that affect all candidates
1
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equally. The Republican Committees make unsubstantiated claims of how they will be impacted by the changes in election law sought by Plaintiffs. Furthermore, the Republican Committees have admitted their positions are “in harmony” with existing parties, and have failed to show how their interests would be impaired if intervention is denied. Finally, their intervention would cause undue delay and prejudice to Plaintiffs. Accordingly, the motion to intervene should be denied.
FACTUAL BACKGROUND Plaintiffs filed the instant action on May 22, 2020, alleging that certain provisions of North Carolina’s election code present an undue burden to the right to vote in violation of the First and Fourteenth Amendments, and further additional provisions of the U.S. Constitution and Federal law. Compl., ECF No. 1. Plaintiffs amended their complaint and filed a motion for Preliminary Injunction on June 5, 2020, ECF Nos. 8, 9, for which the Court granted expedited consideration. June 11, 2020, Order, ECF No. 29. On June 12, 2020, the Court granted permissive intervention to Philip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, in his
2
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official capacity as Speaker of the North Carolina House of Representatives, on behalf of the North Carolina General Assembly (the “NCGA Intervenors”). June 12, 2020, Order, ECF No. 26.
In the motion before the Court, Republican Committees seek to intervene in this case as of right or, in the alternative, with permission from the Court, pursuant to Rule 24 of the Federal Rules of Civil Procedure. Republican Committees’ Mot. to Intervene, ECF No. 32. In support of their motion, the Republican Committees have submitted four declarations from representatives of each organization, all of which contend they will be “supporting” Republican candidates in the upcoming election and therefore have a “strong interest” in protecting “the integrity, fairness and security of election procedures throughout the United States, including in North Carolina, and in insuring that properly enacted statutes are respected, enforced, and followed.” ECF No. 34-1 at ¶ 7 (“White Decl.”); ECF No. 34-2 at ¶ 7 (“Dollar Decl.”); ECF No. 34-3 at ¶ 7 (“Clark Decl.”); ECF No. 34-4 at ¶ 7 (“Thomas Decl.”).
None of these declarations state how the relief sought by Plaintiffs would cause detriment to the efforts of the
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Republican Committees to support Republican candidates or further Republican interests. They also do not describe the Republican Committees’ efforts to “support” candidates or state these efforts would change if Plaintiffs were to prevail in this matter.
ARGUMENT I. The Republican Committees are not entitled to intervene
as of right. The Republican Committees do not satisfy the requirements to intervene as of right in this matter. A party seeking to intervene under Federal Rule of Civil Procedure 24(a) must demonstrate “(1) timeliness, (2) an interest in the litigation, (3) a risk that the interest will be impaired absent intervention, and (4) inadequate representation of the interest by the existing parties.” Scott v. Bond, 734 F. App’x 188, 191 (4th Cir. 2018). Here, the Republican Committees have not substantiated an identifiable interest that would be impaired absent intervention and that would be inadequately represented by the current Defendants and the existing NCGA Intervenors.
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a. The Republican Committees have not shown a significantly protectable interest that would be inadequately represented by the current parties.
A proposed intervenor must hold a “significantly protectable interest” in the litigation it moves to join. JLS, Inc. v. Pub. Serv. Comm’n of W.Va., 321 F. App’x 286, 289 (4th Cir. 2009) (quoting Teague v. Bakker, 931 F.2d 259 (4th Cir. 1991)). This exists when an intervenor “stand[s] to gain or lose by the direct legal operation” of the judgment in the case. Teague, 931 F.2d at 261.
Here, the Republican Committees assert an interest in the laws challenged by Plaintiffs because “[i]f granted Plaintiffs’ request for judicial modification of the Voting Laws will interfere with the Republican Committees’ interest by upsetting its current plans for voter outreach, and by jeopardizing the ability of the State to run a fair, secure, and orderly election.” ECF No. 34 at 5–6. These stated interests are insufficient for several reasons.
First, the Republican Committees provide no information on how their current plans might change and, as noted above, there is no support in the Republican Committees’ submitted declarations for the contention that such plans would be “upset”-indeed, their declarations do not describe any such
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plans at all. The Republican Committees assert that in their
brief they “will be required to spend substantial resources
informing their Republican voters of changes in the law,” ECF
No. 34 at 6, but make no such similar claims in any
declarations and, further, provide no explanation of how the
relief Plaintiffs seek—which reduce barriers to voting-will
require any expenditure of resources that is greater or
different than what the Republican Committees were already
intended to spend. As “[i]t is well-established that
statements in a brief are not evidence,” N.C. Democratic Party
v. Berger, No. 1:17-CV-1113, 2018 WL 7982918, at *3 n.3
(M.D.N.C. Feb. 7, 2018) (collecting cases), the Republican
Committees have failed to show this purported interest in “current plans” to be a significantly protectable interest.1
1 The Republican Committees argue that “voters will be confused by the changes,” citing Purcell v. Gonzalez, but notably omit that the Court in Purcell was primarily concerned about the conflicting natures of the district and appellate courts’ orders as it applied to voter confusion. See 549 U.S. 1, 4-5 (2006) (“Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion”). There is no indication that the requested changes in voting procedures will cause North Carolina voters so much confusion that the “[n]ational party committees, in turn, will be required to spend substantial resources,” especially in light of the new legislation enacted less than 2 weeks prior.
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Second, even construing their interest in “current plans” as part of a broader interest in supporting Republican candidates for office, the Republican Committees fail in both their declarations and supporting brief to articulate how Republican candidates would be harmed by Plaintiffs’ requested relief. Such a presumption would in fact be illogical: Plaintiffs’ requested relief aims to ensure that all North Carolina voters (including voters supporting Republican candidates) are able to safely, securely, and fairly vote in the upcoming election, and further to allow organizations to assist voters to do so.
Third, the Republican Committees’ sweeping statement that “[c]ourts generally recognize that political parties and voters have an interest in litigation that might impose changes in voting procedures affecting candidates in a particular party, as well [as] the voters who are associated with that party,” ECF No. 33 at 6, does not support their claim that they have a significant protectable interest warranting intervention by right here. In the lone case cited in support of this proposition, Ohio Democratic Party v. Blackwell, No. 2:04-CV-1055, 2005 WL 8162665, at *1 (S.D. Ohio Aug. 26, 2005), the court granted the Ohio Republican
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Party’s unopposed motion for permissive intervention in a
case brought by a rival political party to change the state’s
election code. This hardly supports that political parties
have a significant protectable interest supporting
intervention by right in a matter brought by non-partisan
plaintiffs to ensure all voters, regardless of political
affiliation, are given the right to vote, as is the case
here.2
By contrast, other courts have explained in the analogous
context of standing that the cognizable interest that
candidates possess is not an interest in preventing any change
in the competitive political environment, but in preventing
2 Nor do the other cases relied upon by the Republican Committees support intervention by right here. In Democratic National Committee v. Bostelmann No. 20-CV-249WMC, 2020 WL 1505640, at *5 (W.D. Wis. Mar. 28, 2020), modified on reconsideration, No. 20-CV-249-WMC, 2020 WL 1638374, at *5 (W.D. Wis. Apr. 2, 2020), the court permitted the Republican Committees to permissively intervene in a suit brought by the Democratic National Committee. The cited portions of the decisions in Eu v. San Fran. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989), and Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008), discuss states’ interests in protecting the integrity and orderly administration of elections, not any motion to intervene by a political party. And Hill v. Skinner, 169 N.C. 405 (1915) is a 105-year-old North Carolina case that has nothing to do with the rights of political parties as intervenors under Federal Rule of Civil Procedure 24.
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allegedly illegal changes to otherwise lawful competitive environments. See Shays v. Federal Election Commission, 414 F.3d 76, 85 (D.C. Cir. 2013); Nader v. Federal Election Commission, 725 F.3d 226, 228 (D.C. Cir. 2013). The Republican Committees have nowhere alleged that the relief requested by Plaintiffs would create an illegal competitive environment for Republican candidates.
Accordingly, the Republican Committees have not articulated a “significantly protectable interest” with respect to their current plans to support Republican candidates for office, JLS, 321 F. App’x at 289, nor have they shown how they would stand to “gain or lose” from this litigation. Teague, 931 F.2d at 261.
As for the Republican Committees’ stated interest in the “ability of the State to run a fair, secure, and orderly elections,” ECF No. 34 at 6, this is “too general an interest to form the basis of a rule 24(a) motion.” Am. Ass’n of People with Disabilities v. Herrera, 257 F.R.D. 236, 253, 258 (D.N.M. 2008) (denying intervention by individuals and the Republican Party of New Mexico).3 Furthermore, and as explained below,
3 The court in Herrera only found that the Republican Party of New Mexico had a distinct interest because it had specified how changes to New Mexico’s voter registration
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they cannot show that these interests would be inadequately represented by the existing Defendants and NCGA Intervenors.
b. The existing Defendants adequately represent the interests asserted by the Defendants and the NCGA Intervenors.
When a proposed intervenor and an existing party have the same goal, a presumption of adequate representation attaches, “which can only be rebutted by a showing of adversity of interest, collusion, or nonfeasance.” Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013) (internal quotation marks omitted); Commonwealth of Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976). Furthermore, when the existing party is a government agency, “a very strong showing of inadequacy is needed to warrant intervention.” Huff, 706 F.3d at 349 (internal quotation marks omitted).
Here, the Republican Committees have failed to show any inadequacy, much less the “strong” showing needed to warrant intervention where several government agencies and the legislature are defending the action. To the contrary, they concede that they are “in harmony with the Defendants’ and
laws could subject their candidates to voter and registration fraud. Herrera, 257 F.R.D. at 257. Here, the Republican Committees have made no such claims.
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the intervening legislators’ positions.” ECF No. 34 at 8. The Republican Committees assert, without support, that they “have a distinct interest in ‘demand[ing] adherence’ to the current lawfully enacted requirements,” but do not explain how their distinct purpose of electing Republican candidates would be harmed by Plaintiffs’ requested relief. Mem. in Support of the Republican Committees’ Mot. to Intervene, ECF No. 34 at 7. By contrast, there are several reasons that the existing parties will more than adequately represent the Republican Committees’ states interests.
First, Defendants have already rebutted (in response to the NCGA’s motion to intervene) any suggestion they would inadequately defend this suit, including the challenges to the Constitutionality of certain laws. ECF No. 23. And in seeking intervention in this matter, the NCGA Intervenors asserted an interest in “defending the State’s laws from attack in federal court in cases like this one,” ECF No. 17 at 9, and in the “continued enforceability of the numerous laws challenged here.” Id. at 10. For purposes of Rule 24, the NCGA Intervenors have therefore demonstrated they will adequately protect the Republican Committees’ purported “distinct interest in ‘demand[ing]’ adherence to the current
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lawfully enacted requirements.” ECF 33 at 7 (citing Shays v. FEC, 414 F.3d 76, 88 (D.C. Cir. 2005)).
Second, the NCGA Intervenors also specifically noted their interest in passing law that would “safeguard . . . the integrity of North Carolina’s elections.” Id. at 11. This is “essentially the same interest,” Herrera, 257 F.R.D. at 253, that the Republican Committees assert in the supporting declarations to protect “the integrity, fairness and security of election procedures” and ensure the election code is enforced, see, e.g., ECF No. 34-1 at ¶ 7, and thus is adequately represented by the NCGA Intervenors’ in this matter.
This point is further supported by the case cited by the Republican Committees. In Chiles v. Thornburgh, the court rejected the Homeowners’ Associations’ appeal on their denial of intervention after determining that the associations “have an interest which is identical to [the plaintiffs’] interests.” 865 F.2d 1197, 1215 (11th Cir. 1989). As a result, “[t]here is no indication whatsoever that the representation rendered by [plaintiffs] would be inadequate.” Id. However, the court reversed the denial of a separate motion to intervene filed by detainees held at the detention center in
12
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question only after finding that their interests diverged from the plaintiff-intervenor county: the county, was representing “the effect that [the federal facility at which immigrants were detained] has on those who lived outside its walls,” while the detainees-intervenors would be representing their own interests. Id. In this case, the Republican Committees, the Defendants, and the NCGA Intervenors all have the identical interest to safeguard the integrity of the North Carolina elections and ensure the orderly administration of elections.
The Republican Committees’ reliance on Shays v. Federal Election Commission, 414 F.3d 76 (D.C. Cir. 2005) is misplaced. In Shays, the challenged rule would have affected directly the amount of donations the candidates would have received. 414 F.3d at 79. Here, the challenged statutes govern the ability of all voters, regardless of political affiliation, to vote, and do not pertain to candidate campaign conduct. Id. at 79 (D.C. Cir. 2005). The Republican Committees’ reliance on Meek v. Metro. Dade Cty, 985 F.2d 1471 (11th Cir. 1993) and Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) is similarly misplaced. In Meek, the proposed intervenors stated that “[t]he sole purpose of the
13
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requested leave to intervene is to pursue the appeal which has not been taken by [defendant] Dade County.” 985 F.2d at 1476. The 11th Circuit found that the interests of the proposed intervenors diverged from those of Dade County “once [Dade County] decided not to appeal.” Id. at 1478. There is no such demonstrated divergence here. In Trbovich, the Supreme Court permitted intervention by a union member in a lawsuit filed by the Secretary of Labor acting on his behalf, 404 U.S. at 539, a unique procedural posture also not present here.
Additionally, the Republican Committees have failed to contend, much less show, any adversity of interest, collusion, or nonfeasance that would overcome the presumption of adequate representation here. See Huff, 706 F.3d at 349. Accordingly, they have failed to make the requisite strong showing that the current Defendants and Intervenors would inadequately protect any significantly protectable interest.
Finally, as the Republican Intervenors have failed to show a significant protectable interest that differs from the interests protected by the current parties, this case is also markedly different from the recent decision Issa v. Newsom, No. 2:20-cv-01055-MCE-CKD, 2020 WL 3074351 (E.D. Cal. Jun.
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10, 2020) (cited by Republican Committees as Republican Nat’l Committee). In Newsom, the Democratic National Party intervenors cited three interests that were not represented by the Government defendants;4 but, as noted above, the two interests listed by the Republican Committees here are already protected by the Defendants and the NCGA Intervenors.
As the Republican Committees’ have failed to show the required elements for intervention by right under Rule 24(a), their motion on these grounds should be denied. II. Permissive intervention is not warranted.
Permissive intervention should similarly be denied here, as it would be prejudicial to Plaintiffs and would be incompatible with efficiency and due process.
Permissive intervention is only appropriate when the motion is timely, when intervenors have shown a question of law or fact in common with the main action, and when intervention will not result in any undue delay or prejudice to the existing parties. Carcano v. McCrory, 315 F.R.D. 176,
4 Newsom, 2020 WL 3074351, at *3 (“The Proposed Intervenors cite three protectable interests. . .: (1) asserting the rights of their members to vote safely without risking their health; (2) advancing their overall electoral prospects; and (3) diverting their limited resources to educate their members on the election procedures.”).
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178 (M.D.N.C. 2016); Fed. R. Civ. P. 24(b). Furthermore, the decision to grant or deny permissive intervention “lies within the sound discretion of the trial court.”
Here, permissive intervention should be denied at the discretion of the Court on three grounds: (i) any purported interests that the Republican Committees have in this litigation will already be vociferously defended by the State Defendants as well as the NCGA Intervenors; (ii) permitting intervention will further delay and complicate a matter of pressing public importance in which time is of the essence, a point on which all parties (and the Court) appear to agree; and (iii) permitting intervention will prejudice Plaintiffs.
As to the first reason, the Republican Committees have conceded they are “in harmony” with Defendants’ and the NCGA Intervenors’ positions. As discussed above, the Republican Committees have otherwise failed to show that their interests will not be protected or how they will be prejudiced should permissive intervention be denied.
Second, permitting intervention would seriously risk imposing undue delay in this matter. The existing parties have worked hard to expedite and streamline the briefing and required for the proposed hearing on Plaintiffs’ Motion for
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Preliminary Injunction. See ECF No. 18 (Joint Status Report noting the parties’ agreement to limit necessary evidentiary hearing in the interest of expediting consideration of Plaintiffs’ Motion); ECF No. 28 (Plaintiffs’ status update noting that “all Parties now consent to the requests made in the Motion for Leave”).
But if intervention is permitted to four additional parties, and those parties are permitted to participate in the hearing on Plaintiffs’ Motion, this could require extended hearing time beyond the single day agreed upon between Plaintiffs and Defendants and thus further delay calendaring the motion. Furthermore, if granted permission to participate and submit briefing, the additional (and likely duplicative) evidence and argument of the Republican Committees may further require additional time for the Court’s consideration and overall delay the disposition of Plaintiffs’ Motion. In short, permitting intervention here would result in an “intractable procedural mess” by allowing four additional entities to represent the same interests. Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 801 (7th Cir. 2019).
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And as Plaintiffs have discussed in their Memorandum in Support of their Motion for Preliminary Injunction, ECF No. 10 at 12, any such delay could have dangerous consequences for the fall general election.
Third, there would also be a clear prejudice to Plaintiffs in permitting additional intervenors in this matter. Plaintiffs already expect to be required to respond to two briefs, each up to 15,000 words, within six days of their filing. See ECF No. 29. But if intervention is further granted here to the four additional proposed intervenors and they are permitted to submit briefing and evidence, Plaintiffs will face an overwhelming burden at both the briefing and hearing stages. See, e.g., Chiles, 865 F.2d at 1215 (finding the district court did not abuse its discretion with regards to denying permissive intervention and that “[t]he duplicative nature of the claims and interest [proposed intervenors] asserted threatens to unduly delay the adjudication of the rights of the parties in the lawsuit and makes it unlikely that any new light will be shed on the issues to be adjudicated”).
Finally, this likely delay and prejudice to Plaintiffs would have no discernable benefit to this matter. The
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Republican Committees have failed to show or even allude to what benefit they could provide to the disposition of the factual and legal questions at issue, or how their input and advocacy would assist the Court’s consideration of Plaintiffs’ Motion at all. ECF No. 34 at 8. To the extent their objective is to introduce partisan politics into this case, that does not serve the purpose of Rule 24. See, e.g., One Wis. Inst., Inc. v. Nichol, 310 F.R.D. 394, 397 (W.D. Wis. 2015) (“Rule 24 is not designed to turn the courtroom into a forum for political actors who claim ownership of the laws that they pass.”).
The cases cited by the Republican Committees in support of permissive intervention are plainly distinguishable from this case. For example, Bostelmann was a Wisconsin case brought by the partisan Democratic National Committee. No. 20-CV-249-WMC, 2020 WL 1505640, at *5 (W.D. Wis. Mar. 28, 2020). The Republican National Committee was granted permissive intervention because “they are uniquely qualified to represent the ‘mirror-image’ interests of the plaintiffs, as direct counterparts to the DNC/DPW.” See also, Newsom, 2020 WL 3074351, at *3 (permitting Democratic Party intervenors in
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case brought by the Republican National Committee). Such mirror-image interests are not at issue here.
This present case is also distinguishable from other cases where the Republican Committees had a special interest. For example, in League of Women Voters of Virginia v. Virginia State Bd. of Elections, the defendants had agreed to the nonenforcement of the election statute at issue and facilitating all the relief sought by plaintiffs, leading the court to find that the intervenors’ interest in enforcing the statute was not adequately represented by defendants. No. 6:20-CV-00024, 2020 WL 2090678, at *4 (W.D. Va. Apr. 30, 2020). Here, however, and as discussed above, the Republican Committees have conceded they are “in harmony” with Defendants’ and the NCGA Intervenors’ positions. See Am. Ass’n of People with Disabilities v. Herrera, 257 F.R.D. 236, 249 (D.N.M. 2008) (“While not a required part of the test for permissive intervention, a court's finding that existing parties adequately protect prospective intervenors' interests will support a denial of permissive intervention.”). Furthermore, in League of Women Voters of Virginia, the Republican Party was tasked with running its own primary elections under Virginia law. Id. at *1. As a result, the
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court found that it had a special interest in intervening in a case where plaintiffs sought to change voting procedures for primary elections. Here, the Republican Committees are not tasked with running the general elections (Defendant State Board of Elections are), and thus have no similar interest in the November 2020 General Elections.
Furthermore, district courts have allowed Republican Committees to permissively intervene in COVID-19 related voting cases, that do not have the same expedited schedule that this current case has. Plaintiffs, Defendants, and NCGA Intervenors have all agreed to a hearing as early as the week of July 6th, about two weeks from the date of this filing. The court in Nielsen v. DeSantis decided the motion to intervene on May 28, 2020, almost two months prior to the preliminary injunction hearing on July 20, 2020 and noted that “[t]he intervenors should expect to comply with the schedule that would be followed in their absence.” No. 4:20cv-00236-RH-MJF, Dkt. 101, at 2 (N.D. Fla. May 28, 2020). See also Priorities USA v. Nessel, No. 19-13341, 2020 WL 2615504, at *5 (E.D. Mich. May 22, 2020) (granting the Republican Committees’ motion to intervene on May 22, 2020 when the preliminary injunction was filed on January 28, 2020 and a
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hearing has not been set as of June 22, 2020 because the Republican Committees asserted that “their defenses are unlikely to require discovery or an evidentiary hearing, and they will submit all filings in accordance with any briefing schedule imposed by the Court”).
Any delay therefore risks severe prejudice to all parties, as well as the voters of this State, as it will make it more difficult (or potentially impossible) for Defendants to adapt to any changes ordered by the Court and to properly prepare for the fall general election in accordance with any relief the Court may see fit to grant—a result that ultimately harms voters. By contrast, the Republican Committees cannot articulate any concrete harm it will suffer if it is denied intervention in this case. The Republican Committees, like any other entity, may seek leave to participate as amici curiae if they wish to be separately heard. Huff, 706 F.3d at 355 (denying appellants’ permissive intervention and noting that “[o]ur decision today does not leave appellants without recourse. Appellants retain the ability to present their views in support of the Act by seeking leave to file amicus briefs.”). The Republican Committees have put forth no explanation as to why such participation as amici curiae is
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insufficient to voice their interests. Accordingly, their request for permissive intervention should therefore be denied.5
CONCLUSION For the foregoing reasons, the Republican Committees have not met their burden in showing that they are entitled to intervene as of right, or that their asserted interests merit permissive intervention. Plaintiffs therefore respectfully request that the Court deny its Motion to Intervene.

Dated: June 22, 2020.

Respectfully Submitted,

/s/ Jon Sherman Jon Sherman D.C. Bar No. 998271 Michelle Kanter Cohen

/s/ Allison Riggs Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939)

5 Should the Court decide to grant permissive intervention, Plaintiffs respectfully request that it deny or limit the Republican Committees’ participation in the briefing and hearing on Plaintiffs’ Motion for Preliminary Injunction, especially because Plaintiffs and Defendants have agreed to a one-day hearing to expedite consideration of the Motion. See ECF No. 18 (Joint Status Report noting the parties’ agreement to limit necessary evidentiary hearing to one day in the interest of expediting consideration of Plaintiffs’ Motion). “When granting an application for permissive intervention, a federal district court is able to impose almost any condition, including the limitation of discovery.” Columbus-America Discovery Grp. v. Atlantic Mut. Ins. Co., 974 F.2d 450, 469 (4th Cir. 1992).

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D.C. Bar No. 989164 Cecilia Aguilera D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email: jsherman@fairelectionscenter.or
g mkantercohen@fairelectionscente
r.org caguilera@fairelectionscenter.o
rg

Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition. org jeff@southerncoalition.org
/s/ George P. Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392) Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email: george.varghese@wilmerhale
.com joseph.yu@wilmerhale.com stephanie.lin@wilmerhale.c
om rebecca.lee@wilmerhale.com rick.ingram@wilmerhale.com

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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1), the undersigned counsel hereby certified that the foregoing Memorandum in Support of Plaintiffs’ Opposition to Proposed Intervenors’ Motion to Intervene contains 4486 words (including headings and footnotes) as measured by Microsoft Word.
/s/ Allison J. Riggs Allison J. Riggs
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CERTIFICATE OF SERVICE I certify that on the 22th day of June, 2020, the foregoing Memorandum in Support for Plaintiffs’ Opposition to Proposed Intervenors’ Motion to Intervene was served upon the parties through the Court’s ECF system.
/s/ Allison J. Riggs Allison J. Riggs
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA,

)

THE LEAGUE OF WOMEN VOTERS )

OF NORTH CAROLINA,

)

DONNA PERMAR, JOHN P. CLARK, )

MARGARET B. CATES,

)

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,

)

KEN RAYMOND, 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, DAVID C. BLACK, )

in his 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, THE NORTH

)

CAROLINA DEPARTMENT OF

)

1:20CV457

Case 1:20-cv-00457-WO-JLW Document 48 Filed 06/24/20 Page 1 of 8

TRANSPORTATION, J. ERIC

)

BOYETTE, in his official

)

capacity as TRANSPORTATION )

SECRETARY, THE NORTH

)

CAROLINA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, )

and MANDY COHEN, in her

)

official capacity as

)

SECRETARY OF HEALTH AND

)

HUMAN SERVICES,

)

)

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. )

ORDER The Republican National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), and North Carolina Republican Party (“NCRP”) (together, “Proposed Intervenors”) move to intervene in this case as defendants under Federal Rule of Civil Procedure 24. (Doc. 32.) The parties have responded, (Docs. 37, 43, 46, 47), and this matter is now ripe for ruling. The court will deny Proposed Intervenors’ motion to intervene.
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Rule 24 provides two avenues for intervention: intervention as of right pursuant to Rule 24(a)(2), and permissive intervention pursuant to Rule 24(b). Fed R. Civ. P. 24(a)(2), (b). If intervention as of right is not warranted, a court may still allow an applicant to intervene permissively under Rule 24(b). Id.
First, the court finds that Proposed Intervenors may not intervene under Rule 24(a). Rule 24(a) dictates that the court must permit anyone to intervene who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2).
Proposed Intervenors are all organizations representing the Republican party at the national and state levels. DefendantIntervenors Berger and Moore, in their official capacities as the President Pro Tempore of the North Carolina Senate and the Speaker of the North Carolina House of Representatives, respectively, are both Republicans. At present, the executive and legislative branches of the North Carolina government are represented, and those branches include individuals identified as both Republicans and Democrats. The present parties are more
- 3 -
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than capable of representing those interests of all people of the state of North Carolina and protecting the integrity of the voting process.
Furthermore, Proposed Intervenors argue that Defendants and Republican legislators in their official capacities do not share Proposed Intervenors’ interest in electing particular candidates. (Doc. 34 at 7.) This court certainly understands that these organizations and the candidates they represent have an interest in the rules applying to this election. However, that interest in “the current lawfully enacted requirements,” (id.), is undoubtedly protected by the legislature and other individuals that enacted the rules in the first instance.
This court finds Proposed Intervenors’ interest is adequately protected and intervention under Rule 24(a) should be denied.
Second, the court will exercise its discretion in declining to permit Proposed Intervenors under Rule 24(b). Under Rule 24(b), the court may permit anyone who “has a claim or defense that shares with the main action a common question of law or fact” to intervene on timely motion. Fed. R. Civ. P. 24(b)(1)(B). “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.” Fed. R. Civ.
- 4 -
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P. 24(b)(3). Where a movant seeks permissive intervention as a defendant, the movant must therefore satisfy three requirements: (1) the motion is timely; (2) the defenses or counterclaims have a question of law or fact in common with the main action; and (3) intervention will not result in undue delay or prejudice to the existing parties. See League of Women Voters of Va. v. Va. State Bd. of Elections, Case No. 6:20-CV-00024, 2020 WL 2090679, at *3 (W.D. Va. Apr. 30, 2020); Carcano v. McCrory, 315 F.R.D. 176, 178 (M.D.N.C. 2016).
The Fourth Circuit has held that “liberal intervention is desirable to dispose of as much of a controversy involving as many apparently concerned persons as is compatible with efficiency and due process.” Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (internal quotation marks omitted); see also Friend v. REMAC Am., Inc., No. 3:12–CV–17, 2014 WL 2440438, at *1 (N.D. W. Va. May 30, 2014) (analyzing motion to intervene “in the context of the Fourth Circuit's policy favoring ‘liberal intervention’ and preventing the ‘problem of absent interested parties’” (quoting Feller, 802 F.2d at 729)). Further, the decision to grant or deny permissive intervention “lies within the sound discretion of the trial court.” Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (quoting Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982)).
- 5 -
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The court finds that Proposed Intervenors meet the first two elements for permissive intervention, but acts within its discretion in declining to allow Proposed Intervenors to intervene. First, the court finds that the Proposed Intervenors’ motion was timely, given Plaintiffs filed their second amended Complaint the same day as Proposed Intervenors’ motion. See Carcano, 315 F.R.D. at 178 (finding the intervenors’ motion timely when it was filed nine days after the plaintiffs filed their motion for preliminary injunction and before the defendants had filed any documents). The first element is thus satisfied.
Second, it is undisputed that Proposed Intervenors’ defenses in their proposed answer, (Doc. 32-1 at 100-01), arguably share common questions of law and fact with the main action in this case; that is, the legality of North Carolina’s election laws. See N.C. State Conference of NAACP v. Cooper, 332 F.R.D. 161, 172 (2019) (agreeing that the proposed intervenors’ proposed answer included “defenses which present common issues of fact and law”).
Finally, however, the court finds that allowing Proposed Intervenors to intervene will result in undue prejudice on the parties and will result in “accumulating . . . arguments without assisting the court.” Allen Calculators, Inc. v. Nat’l Cash
- 6 -
Case 1:20-cv-00457-WO-JLW Document 48 Filed 06/24/20 Page 6 of 8

Register Co., 322 U.S. 137, 141–42 (1944). As previously noted, the present parties are capable of representing the interests of all North Carolina citizens. To the extent Proposed Intervenors have concern over the enforcement of the existing laws, those interests will be adequately addressed by the present parties. The right to vote, and the issues raised here, are the same without regard to the type of political race in which those voting rights are exercised. In other words, while Proposed Intervenors’ interest in the outcome of elections might be different from that of the present parties, the present parties are more than capable of supporting and defending the voting process in place presently. To add Proposed Intervenors will likely unnecessarily extend fact-finding, discovery, and evidentiary hearings, thereby resulting in inefficiencies and undue delay of the resolution of these matters.
Thus, the court will exercise its discretion in denying Proposed Intervenors’ motion. The court finds that Proposed Intervenors’ interests in upholding North Carolina’s voting laws will be adequately represented by Defendants.
The court will consider, at the appropriate time, whether Proposed Intervenors and any other interested non-parties should be allowed to participate by filing timely amicus curiae briefs consistent with Federal Rule of Civil Procedure 1.
- 7 -
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IT IS THEREFORE ORDERED that Proposed Intervenors’ Motion to Intervene, (Doc. 32), is DENIED.
This the 24th day of June, 2020. __________________________________ United States District Judge
- 8 Case 1:20-cv-00457-WO-JLW Document 48 Filed 06/24/20 Page 8 of 8

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Civil Action
No. 20-cv-00457
LEGISLATIVE DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ AMENDED MOTION FOR PRELIMINARY INJUNCTION

Defendants, and

Case 1:20-cv-00457-WO-JLW Document 51 Filed 06/26/20 Page 1 of 79

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,
Legislative DefendantIntervenors.
Case 1:20-cv-00457-WO-JLW Document 51 Filed 06/26/20 Page 2 of 79

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..........................................iii

INTRODUCTION AND STATEMENT OF FACTS.............................1

ARGUMENT........................................................4

I. Plaintiffs’ Claims that North Carolina Law Unconstitutionally Burdens the Right To Vote Are Unlikely To Succeed....................................4

A. Plaintiffs Do Not Have Standing To Assert Their Anderson-Burdick and Unconstitutional Conditions Claims................................................4
1. No Plaintiff Has Article III Standing............4

a. Voter Registration ............................5

b. The Witness Requirement .......................7

c. Requesting Absentee Ballots ..................10

d. Drop Boxes ...................................10

e. Opportunity To Cure Absentee Ballots .........11

f. The Home County and Uniform Hours Requirements .................................12
2. The Organizational Plaintiffs Do Not Have Prudential Standing.............................13
B. Plaintiffs’ Constitutional Voting Rights Claims Must Be Dismissed Under the Political Question Doctrine..........................15

C. The State’s Election Laws Do Not Unduly Burden the Right To Vote....................................16

1. The Applicable Legal Framework..................17 2. Voter Registration..............................18

3. The Ballot Harvesting Ban.......................22

4. The Witness Requirement.........................28 i

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5. Drop Boxes......................................30
6. Opportunity To Cure.............................32
7. The Home County Requirement.....................35
8. The Uniform Hours Requirement...................37
D. Plaintiffs’ “Unconstitutional Conditions” Claim Fails..........................................40
II. Plaintiffs Are Unlikely To Succeed on Any of Their Other Claims........................................46
A. The Ballot Harvesting Ban Does Not Violate the First Amendment..................................46
B. Plaintiffs Lack Standing To Assert Their Procedural Due Process Challenge, and the Due Process Clause Does Not Require the Procedures Plaintiffs Demand....49
C. The Court Lacks Jurisdiction To Consider Plaintiffs’ Claims Under the Americans With Disabilities Act and Rehabilitation Act, Which Also Fail on the Merits....53
D. Plaintiffs Lack Standing To Assert a Claim Under Section 208 of the Voting Rights Act, and Section 208 Does Not Prohibit States from Placing Reasonable Restrictions on Who May Assist Blind Voters in Completing Their Ballots.............................55
III. No Preliminary Injunction Should Issue, and Any Relief Ordered Must Be Limited to Redressing Plaintiffs’ Injuries......................................58
A. The Remaining Factors Weigh Heavily Against Issuance of a Preliminary Injunction.................58
B. The Purcell Doctrine Bars the Relief Sought by Plaintiffs...........................................59
C. Plaintiffs’ Requested Injunction Is Overbroad........62
CONCLUSION.....................................................67
ii
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Cases

TABLE OF AUTHORITIES

Page

520 Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961 (7th Cir. 2006) .................................8

Abbott v. Perez, 138 S. Ct. 2305 (2018)........................59

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)...................54

Alexander v. Choate, 469 U.S. 287 (1985).......................54

Alston v. Va. High School League, Inc., 184 F.R.D. 574 (W.D. Va. 1999) ..............................65

Anderson v. Celebrezze, 460 U.S. 780 (1983)....................17

Ariz. Democratic Party v. Reagan, No. 16-3618, 2016 WL 6523427 (D. Ariz. Nov. 3, 2016) .....................62

Baker v. Carr, 369 U.S. 186 (1962).........................15, 16

Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017)..................8

Burdick v. Takushi, 504 U.S. 428 (1992)....................17, 50

Califano v. Yamasaki, 442 U.S. 682 (1979)......................63

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) ........................................14

Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008) ................................29

City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983) .........................................14

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ..............................7, 49, 53, 54

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) .........................................47

Coal. for Good Governance v. Raffensperger, No. 20-1677, 2020 WL 2509092 (N.D. Ga. May 14, 2020) .............15, 16, 43

Collins v. City of Harker Heights, 503 U.S. 115 (1992).........45

Common Cause v. Rucho, 139 S. Ct. 2484 (2019)..................16

DaimlerChrysler Corp v. Cuno, 547 U.S. 332 (2006)..............66

David v. Alphin, 704 F.3d 327 (4th Cir. 2013)...................4

DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189 (1989) .........................................42

DiPietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Commw. Ct. 1995) .......................................57

Doe v. Rosa, 795 F.3d 429 (4th Cir. 2015)..................43, 44

iii

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Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)..................64 Dunn v. Blumstein, 405 U.S. 330 (1972).........................41 Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp.,
28 F.3d 1268 (D.C. Cir. 1994) ................................7 FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993)...............48 Freilich v. Upper Chesapeake Health, Inc.,
313 F.3d 205 (4th Cir. 2002) ................................14 Fulani v. Hogsett, 917 F.2d 1028 (7th Cir. 1990)...............62 Fusaro v. Cogan, 930 F.3d 241 (4th Cir. 2019)..................17 Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019)...................44 Greater Birmingham Ministries v. Alabama,
161 F. Supp. 3d 1104 (N.D. Ala. 2016) .......................15 Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019)..............46 Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980)...................45 Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016).........66 Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999)...............44 Kendall v. Balcerzak, 750 F.3d 515 (4th Cir. 2011).............52 Kentuckians for the Commonwealth, Inc. v. Rivenburgh,
317 F.3d 425 (4th Cir. 2003) ................................64 Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018)................48 Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) .........................................40 Kowalski v. Tesmer, 543 U.S. 125 (2004)................13, 14, 49 Lane v. Holder, 703 F.3d 668
(4th Cir. 2012) ...............................6, 7, 10, 12, 13 Lee v. Va. State Bd. of Elections,
843 F.3d 592 (4th Cir. 2016) ................................17 Lefkowitz v. Cunningham, 431 U.S. 801 (1977)...................41 Leifert v. Strach, 404 F. Supp. 3d 973 (M.D.N.C. 2019).........53 Lewis v. Casey, 518 U.S. 343 (1996)............................66 Libertarian Party of Va. v. Alcorn,
826 F.3d 708 (4th Cir. 2016) ........................27, 29, 32 Liddy v. Lamone, 919 A.2d 1276 (Md. 2007)......................62 Mackey v. Nationwide Ins. Co., 724 F.2d 419 (4th Cir. 1984)....14 Matherly v. Andrews, 859 F.3d 264 (4th Cir. 2017)...............8
iv
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Mathews v. Eldridge, 424 U.S. 319 (1976).......................51 Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020)...........17, 22, 30 McDonald v. Bd. Election Comm’rs of Chi.,
394 U.S. 802 (1969) .................................23, 50, 51 McGhee v. Granville County, 860 F.2d 110 (4th Cir. 1988).......67 McLaughlin v. N.C. Bd. of Elections,
65 F.3d 1215 (4th Cir. 1995) ................................37 Md. Highways Contractors Ass’n, Inc. v. Maryland,
933 F.2d 1246 (4th Cir. 1991) ................................4 Miller v. Smith, 115 F.3d 1136 (4th Cir. 1997).................41 N.C. State Conference of NAACP v. Cooper,
430 F. Supp.3d 15 (M.D.N.C. 2019) ...........................20 Nat’l Fed’n for the Blind v. Lamone,
813 F.3d 494 (4th Cir. 2016) ................................54 North Carolina v. Covington, 138 S. Ct. 2548 (2018)............67 Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995)............43, 44 Pisano v. Strach, 743 F.3d 927 (4th Cir. 2014).............18, 19 Planned Parenthood of Ind. v. Comm’r of Ind. State
Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) ...............40 Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015).................50 Priorities USA v. Nessel, No. 19-13341, 2020 WL 2615766
(E.D. Mich. May 22, 2020) .................................. 15 Purcell v. Gonzalez, 549 U.S. 1 (2006).....................59, 60 Qualkinbush v. Skubisz, 826 N.E.2d 1181
(Ill. App. 1st Dist. 2004) ..................................57 Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel,
872 F.2d 75 (4th Cir. 1989) ..............................3, 62 Ray v. Texas, No. 2-06-385, 2008 WL 3457021
(E.D. Tex. Aug. 7, 2008) ................................56, 57 Reno v. Flores, 507 U.S. 292 (1993)............................44 Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct. 1205 (2020) ...............................3, 59, 60 Reynolds v. Sims, 377 U.S. 533 (1964)..........................60 Riley v. Kennedy, 553 U.S. 406 (2008)..........................60 Rochin v. California, 342 U.S. 165 (1952)......................45 Rosario v. Rockefeller, 410 U.S. 752 (1973)....................17
v
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Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) ..........................................47
Schlaud v. Snyder, 785 F.3d 1119 (6th Cir. 2015)...............65 Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017)............14 Shapiro v. Thompson, 394 U.S. 618 (1969).......................41 Simmons v. United States, 390 U.S. 377 (1968)..................41 Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) .....................................44, 45 South Carolina v. United States,
912 F.3d 720 (4th Cir. 2019) .................................8 S. Walk at Broadlands Homeowner's Ass’n, Inc. v. OpenBand
at Broadlands, LLC, 713 F.3d 175 (4th Cir. 2013) .............6 Stevenson ex rel. Stevenson v. Martin Cty. Bd. Of Educ.,
3 Fed. App’x 25 (4th Cir. 2001) .............................42 Summers v. Earth Island Inst., 555 U.S. 488 (2009)...........6, 9 Telescope Media Grp. v. Lucero,
936 F.3d 740 (8th Cir. 2019) ................................41 Tex. Democratic Party v. Abbott,
961 F.3d 389 (5th Cir. 2020) ........................23, 60, 61 Thomas v. Andino, No. 20-01552,
2020 WL 2617329 (D.S.C. May 25, 2020) .......................30 Thompson v. Dewine, 959 F.3d 804
(6th Cir. 2020) .............................21, 22, 60, 61, 63 Umstead v. Bowling, 150 N.C. 507, 64 S.E. 368 (1909)...........28 Upham v. Seamon, 456 U.S. 37 (1982)........................66, 67 Valley Drug Co. v. Geneva Pharm., 350 F.3d 1181
(11th Cir. 2003) ........................................65, 66 Va. Soc’y for Human Life, Inc. v. FEC,
263 F.3d 379 (4th Cir. 2001) ................................64 Voting for Am., Inc. v. Steen, 732 F.3d 382
(5th Cir. 2013) .........................................47, 48 Washington v. Glucksberg, 521 U.S. 702 (1997)..................44 Washington v. Harper, 494 U.S. 210(1990).......................45 White v. Weiser, 412 U.S. 783 (1973)...........................67 Wilkins v. Gaddy, 734 F.3d 344 (2013)..........................48 Wilkinson v. Austin,545 U.S. 209 (2005)........................52
vi
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Wood v. Meadows, 207 F.3d 708 (4th Cir. 2000) .........................26, 27, 28, 29, 30, 32
Zivotofsky v. Clinton, 566 U.S. 189(2012)......................16 Constitutions, Statutes, and Rules
U.S. CONST. art. I, § 4 .........................................1
52 U.S.C. § 10508..........................................55, 56
FED. R. CIV. P. 23(b)(2) ........................................65
Session Law 2020-17 (“HB1169”) § 1(a) ................................................. 10, 28 § 1(b) ..................................................10, 35 § 2(b) .......................................................9 § 7(a) ......................................................10 § 11.1(b)(5) ................................................39
N.C. GEN. STAT. § 163-82.7 ..................................................21 § 163-128(a) ................................................38 § 163-166.8(a)(2) ...........................................58 § 163-226.3(a)(4) .......................................54, 56 § 163-226.3(c) ..............................................55 § 163-226.3(e)(4) ...........................................55 § 163-227.2(b) ..............................................18 § 163-227.2(e) ..............................................58 § 163-230.2(a) ..............................................63 § 163-230.2(c) ..............................................22 § 163-230.2(e)(2) ...........................................22 § 163-230.2(e)(4) ...........................................22 § 163-231(b)(2)b .............................................7
Legislative Materials
S. REP. NO. 97-417, (May 25, 1982)..............................57
Other Authorities
2020 Primary Election Early Voting Schedule, DURHAM CTY. BD. OF ELECTIONS (2020), https://bit.ly/3hxxhzH ........................12
Citizen Voting-Age Population: North Carolina, U.S. CENSUS BUREAU (Nov. 15, 2016), https://bit.ly/3dpNtzv........................20
Comm’n on Fed. Election Reform, Building Confidence in U.S. Elections 46, CTR. FOR DEMOCRACY & ELECTION MGMT., AM. UNIV. (Sept. 2005), https://bit.ly/2YxXVRh...........................27
Numbered Memorandum 2020-03 from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to County Bds. Of Elections (Jan. 15, 2020), https://bit.ly/3eASDdj........................52
vii
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Office of Highway Policy Info., Highway Statistics 2018, FED. HIGHWAY ADMIN. (Feb. 28, 2020) (7,267,042 licensed drivers in North Carolina in 2016), https://bit.ly/31dzLxu................20 Office of Inspector Gen., HealthCare.gov: CMS Management of the Federal Marketplace, U.S. DEP’T OF HEALTH & HUMAN SERVS. (Feb. 16, 2016), https://bit.ly/2Z328M8...................................2 Online Voter Registration, NAT’L CONFERENCE OF STATE LEGISLATURES (Feb. 3, 2020), https://bit.ly/2YALXqd.....................................19, 20 Online Voter Registration, N.C. STATE BD. OF ELECTIONS, https://bit.ly/31oVKSd (last visited June 26, 2020)........19, 20 Kim Westbrook Strach, Prior Education Efforts on Voter Identification Requirements (2014-16), N.C. STATE BD. OF ELECTIONS & ETHICS ENFORCEMENT (Nov. 26, 2018), https://bit.ly/2lLiV6M.....................................30, 31 Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989) ...................................40 Voting Outside the Polling Place: Absentee, All-Mail and Other Voting at Home Options, NAT’L CONFERENCE OF STATE LEGISLATURES (June 22, 2020), https://bit.ly/3ezVWll........................31
viii
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INTRODUCTION AND STATEMENT OF FACTS This is a fundamentally irresponsible lawsuit that threatens to harm the very interests Plaintiffs purport to be seeking to protect. The U.S. Constitution expressly vests the North Carolina General Assembly with the authority to prescribe the times, places, and manner of holding elections for federal office in the State of North Carolina, subject to a legislative check by the U.S. Congress. U.S. CONST. art. I, § 4. On March 26, 2020, the Executive Director of the State Board of Elections accordingly addressed a letter to General Assembly members and Governor Cooper requesting various changes to the State’s election laws to account for the COVID-19 pandemic. See Riggs Decl. Ex. 1, Doc. 12-7 (June 5, 2020). The General Assembly responded by crafting bipartisan legislation, House Bill 1169 (“HB1169”) (attached as Exhibit 1). The Bill was introduced in the House on May 22, and it was signed into law by Governor Cooper on June 12 after passing the General Assembly by a total vote of 142–26. The law makes several changes to North Carolina election procedures for the 2020 General Election, including by reducing to one the number of individuals required to witness an absentee ballot, expanding the pool of authorized poll workers to include county residents beyond a particular precinct, allowing absentee ballots to be requested online, by fax, or by email, directing the State Board of Elections to develop guidelines for assisting registered voters in nursing homes and hospitals,
1
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giving additional time for county boards to canvass absentee ballots, and providing over $27 million in funding for election administration.
Plaintiffs, however, believe they know better than North Carolina’s elected officials what needs to be done to balance the State’s interests in election administration, access to the polls, and election integrity during a global pandemic. Apparently unsatisfied with HB1169, which gives them some, but not all, of what they seek, Plaintiffs filed suit on May 22, the same day the Bill was introduced. They now seek a preliminary injunction requiring radical changes to North Carolina election procedures, including the construction of absentee ballot drop boxes across the state, the development and implementation of an additional online voter registration system, and the elimination of the uniform hours requirement for early voting locations.
Any one of these changes would divert precious time and resources and could threaten to throw preparations for the November elections into disarray, imperiling the very values Plaintiffs purport to advance. Cf. Office of Inspector Gen., HealthCare.gov: CMS Management of the Federal Marketplace at i, U.S. DEP’T OF HEALTH & HUMAN SERVS. (Feb. 16, 2016), https://bit.ly/2Z328M8 (“The development of HealthCare.gov faced a high risk of failure, given the technical complexity required, the fixed deadline, and a high degree of uncertainty about mission, scope, and funding.”). Taken
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together, the risks they pose are even greater. And the basis for which Plaintiffs seek to impose these risks is unfounded: “Voters can wear masks, avoid crowds, bring their own hand sanitizer with them, practice frequent hand hygiene, and avoid touching their face. Doing so will bring their risk of transmission of the virus close to zero.” Plush Decl. ¶19.
Fortunately for the People of North Carolina, Plaintiffs’ claims are utterly without merit and indeed fail for several threshold reasons. First, “equity demands . . . haste,” Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989), yet Plaintiffs let over two months pass from the time of the Executive Director’s letter to the General Assembly to the filing of their motion for a preliminary injunction. That delay alone is reason enough to deny Plaintiffs’ motion. Second, the Supreme Court “has repeatedly emphasized that lower federal courts should not ordinarily alter the election rules on the eve of an election,” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam), and that principle applies with full force here, particularly when state election officials already are working to adjust the rules to implement HB1169. Third, Plaintiffs’ attempt to enlist this Court in second-guessing the General Assembly’s considered judgment on how to adjust the rules of voting for a pandemic are foreclosed by the political question doctrine. And fourth, Plaintiffs lack standing to bring most of
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their claims, as the individual and organizational plaintiffs generally fail to assert cognizable injuries. Finally, to the extent this Court has jurisdiction to consider any of Plaintiffs’ claims those claims fail on the merits.
For these reasons, the Court should deny Plaintiffs’ motion for a preliminary injunction.
ARGUMENT I. Plaintiffs’ Claims that North Carolina Law Unconstitutionally
Burdens the Right To Vote Are Unlikely To Succeed. A. Plaintiffs Do Not Have Standing To Assert Their
Anderson-Burdick and Unconstitutional Conditions Claims. 1. No Plaintiff Has Article III Standing. The “irreducible minimum requirements” of standing are an injury in fact, causation, and redressability. David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013). In addition to suing on its own behalf, an organizational plaintiff may seek to establish standing to represent its members’ interests by demonstrating that “(1) its own members would have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to the organization’s purpose; and (3) neither the claim nor the relief sought requires the participation of individual members in the lawsuit.” Md. Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991).
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Both the individual and organizational Plaintiffs lack standing to challenge what they allege are unconstitutional burdens on the right to vote.
a. Voter Registration Plaintiffs seek to enjoin the State’s requirement that voters must register at least 25 days before the relevant election. See Pls.’ Mem. In Support of their Mot. for Prelim. Inj. & Request To Expedite 2, Doc. 7 (June 5, 2020) (“PI Br.”). And they seek to require the State Defendants to “offer broader online registration through DHHS.” Id. at 20.
However, every single one of the individual voter-plaintiffs is already registered to vote in North Carolina. See Permar Decl. ¶2, Doc. 11-3 (June 5, 2020); Clark Decl. ¶3, Doc. 11-4 (June 5, 2020); Cates Decl. ¶3, Doc. 11-5 (June 5, 2020); Bentley Decl. ¶2, Doc. 11-6 (June 5, 2020); Edwards Decl. ¶2, Doc. 11-7 (June 5, 2020); Priddy Decl. ¶2, Doc. 11-8 (June 5, 2020); Hutchins Decl. ¶3, Doc. 11-9 (June 5, 2020). The State’s registration regime therefore poses no injury to any of them and they have no standing.
The organizational plaintiffs lack standing as well. Neither has identified any members who would independently have standing to challenge the registration system. LWVNC asserts that “voters who need to update their registration and were previously able to do so during one-stop voting, including LWVNC members, will now be unable to do so because they are unable to vote in person due to
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the risk to their health.” Nicholas Decl. ¶8, Doc. 11-2 (June 5, 2020). But this kind of general, conclusory statement is insufficient because an organization must “make specific allegations establishing that at least one identified member had suffered or would suffer harm.” Summers v. Earth Island Inst., 555 U.S. 488, 498, (2009) (emphasis added). LWVNC’s “terse allegation of its injury—without specific mention of any individual member’s injury” is insufficient.” S. Walk at Broadlands Homeowner's Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
The organizational plaintiffs have likewise failed to establish their own standing. They make general allegations that they must “divert significant resources to help voters problemsolve complying with existing rules,” Lopez Decl. ¶18, Doc. 11-1 (June 5, 2020), or “devote resources to helping voters register that [they] would otherwise use in other initiatives leading up to the election,” Nicholas Decl. ¶9, but these general statements again do not suffice. “Although a diversion of resources might harm the organization by reducing the funds available for other purposes, it results not from any actions taken by [the defendant], but rather from the [organization’s] own budgetary choices.” Lane v. Holder, 703 F.3d 668, 675 (4th Cir. 2012) (quotation marks omitted). Finding standing in such circumstances “would not comport with the case or controversy requirement of Article III of
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the Constitution.” Id.; see also Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1277 (D.C. Cir. 1994).
b. The Witness Requirement Of the individual plaintiffs, only Plaintiffs Bentley and Hutchins are potentially capable of challenging the Witness Requirement as amended. Bentley lives alone, see Bentley Decl. ¶1, and attests that she “do[es] not know that [she] will be able to find witnesses, or who [she] would ask,” id. ¶9. Bentley lacks standing because her “theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013) (quotation marks omitted). Bentley has until the day of the General Election in November 2020 to postmark her ballot. See N.C. GEN. STAT. § 163-231(b)(2)b. And a great deal can change in the next four months with respect to the danger posed by the virus. Moreover, Bentley attests only that she “follow[s] the stay-at-home order as best as [she] can,” and if she “do[es] not need to leave [her] house, then [she doesn’t].” Bentley Decl. ¶6. This implies that since she began self-isolating on March 10, see id. ¶4, she has left her house on occasion. And Bentley has not alleged facts showing that she will not need to leave her house in the months preceding the election such that she will necessarily come in contact with at least one
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person eligible to serve as her witness. Nor has she alleged facts showing that no member of her own family will visit her from outof-town between now and Election Day who could serve as a witness.
Moreover, while Bentley emphasizes the magnitude of harm she may suffer should she contract the virus, that truth has no bearing on the imminence inquiry, as “[s]tanding depends on the probability of harm.” 520 Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006) (Easterbrook, J.). And Bentley has proffered no evidence or declaration indicating that the probability of contracting the virus is so high as to be “certainly impending.” An injury that “could very likely” occur does not suffice to secure standing. Matherly v. Andrews, 859 F.3d 264, 277 (4th Cir. 2017). Indeed, even a 33% chance of harm “falls far short” of establishing standing. Beck v. McDonald, 848 F.3d 262, 275–76 (4th Cir. 2017). Assuming the Bentley continues to behave as she has in the past, see South Carolina v. United States, 912 F.3d 720, 728–29 (4th Cir. 2019), she will maintain diligent social distancing and compliance with CDC recommendations regarding masks, sanitization, etc. Should Bentley thereafter engage as a witness a neighbor who has no COVID-19 symptoms and has likewise engaged in social distancing, and should she and the neighbor meet outdoors while complying with CDC recommendations, it is highly improbable that Bentley would contract the virus. See Plush Decl. ¶¶7, 11–14, 18– 19, 21; Schauder Decl. ¶¶11–18.
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Hutchins also lacks standing to challenge to the Witness Requirement. As with Bentley, Hutchins relies on speculation failing to show any certainly impending injury. First, while Hutchins’s living facility is currently on lockdown, that may not be so by the time of the November General Elections. And if there is no lockdown, then Hutchins’s wife should be able to assist him in completing an absentee ballot and serving as his witness. See Hutchins Decl. ¶¶4, 11. Second, Hutchins proffers no allegations explaining why one of his fellow residents at the living facility could not serve as his witness. Although Hutchins notes that residents are told to be 6 feet from each other, he does not explain how that requirement would prevent another resident from serving as his witness. Third, HB1169 requires the Department of Health and Human Services (“DHHS”) and State Board of Elections (“SBOE”) to develop guidance allowing trained multipartisan assistance team (“MAT”) members to enter nursing homes “to assist registered voters” there. HB1169 § 2(b). Hutchins may therefore also have a MAT member serve as his witness.
The organizational plaintiffs also lack standing to challenge the Witness Requirement. Neither addresses whether their members would not be able to meet the one-witness requirement, much less identified any such member. See Summers, 555 U.S. at 498. The organizational plaintiffs lack standing in their own right because the most they assert is that the Witness Requirement requires them
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to reallocate space on their printed voters guides, see Lopez Decl. ¶23, or “divert [their] limited resources towards educating voters on how to vote safely . . . with this restriction in place,” Nicholas Decl. ¶15. But these allegations merely concern the diversion of resources and are not enough to secure organizational standing. See Lane, 703 F.3d at 675.
c. Requesting Absentee Ballots Plaintiffs Cates and Hutchins challenged the State’s former laws requiring voters to request absentee ballots through submission of a hard-copy ballot request form to the county board of elections. HB1169 now provides that voters or their near relatives may additionally request absentee ballots through online submissions, email, or fax. HB1169 §§ 1(b), 7(a). Because Cates declared that she has a tablet and a smart phone and “would request a ballot that way,” Cates Decl. ¶8, she no longer has standing. And Hutchins has alleged no facts indicating that neither his wife nor any other near relative would be unable to submit the online form or send a fax or email on his behalf or that he has any preference between those options and requesting his ballot over the phone. He therefore lacks standing as well.
d. Drop Boxes None of the individual plaintiffs has declared a need for using a contactless drop box to submit their absentee ballots. Therefore, none has standing to raise this claim.
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Nor do the organizational plaintiffs. Because neither specifically identifies any members who need or plan to use such drop boxes, they lack representational standing. And they lack organizational standing too, because they simply allege a potential diversion of resources caused by the lack of drop boxes. See Lopez Decl. ¶26; Nicholas Decl. ¶16. These allegations are highly speculative, and mere diversions of resources are not enough for organizational standing in any event. See Lane, 703 F.3d at 675.
e. Opportunity To Cure Absentee Ballots The individual plaintiffs who plan to vote by mail with absentee ballots do not make allegations showing that it is “certainly impending” that they will need an opportunity to cure any deficiencies in submitting their absentee ballots. None express a concern that they will make a mistake in completing their ballots that will necessitate any opportunity to cure. Moreover, given that millions of citizens every year are able to successfully cast absentee ballots across the country, and given that these individual plaintiffs are sophisticated enough to initiate this very suit, one would be hard-pressed to think it “imminent” that they will err in filling out their absentee ballots. The organizational Plaintiffs likewise lack standing to challenge this alleged burden on the right to vote. They do not have representational standing because they have not identified
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any individual members who would have standing. And they do not have organizational standing because their bare assertions of resource diversion, see Lopez Decl. ¶27; Nicholas Decl. ¶18, are insufficient. See Lane, 703 F.3d at 675.
f. The Home County and Uniform Hours Requirements The only individual plaintiff expressing any desire to vote in-person is Permar. See Permar Decl. ¶4. She asserts that because she is blind she uses public transportation and “[i]f precincts are consolidated in a manner in which [she] would not have access to [her] polling place via public transportation, it would place a severe burden on [her] ability to [her] vote in-person.” Id. ¶7. She also asserts that she does not believe that she “should have to stand in long lines because of excessive precinct consolidation.” Id. ¶8. These concerns are entirely speculative. Permar makes no assertions supporting the highly unlikely proposition that Durham County—should it even need to engage in precinct consolidation— would not locate any polling places near public transportation. Indeed, in the 2020 Primary Election, one early voting location in Durham County was the Broadhead Center at Duke University, see 2020 Primary Election Early Voting Schedule, DURHAM CTY. BD. OF ELECTIONS (2020), https://bit.ly/3hxxhzH, the same campus on which Permar works, see Permar Decl. ¶1.
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Likewise, Permar’s speculative concern about long lines lacks sufficient factual support to secure her standing to challenge either the Home County Requirement or the Uniform Hours Requirement.
Finally, the organizational plaintiffs lack standing to challenge the Home County or Uniform Hours Requirements. Neither has representational standing because they have not identified any individual members who would have standing. And they do not have organizational standing because their bare assertions of resource diversion, see Lopez Decl. ¶28; Nicholas Decl. ¶20, are insufficient. See Lane, 703 F.3d at 675.
2. The Organizational Plaintiffs Do Not Have Prudential Standing.
The organizational plaintiffs face a second, insurmountable obstacle to pressing claims based upon the constitutional right to vote: they do not have any such right. The organizational plaintiffs’ complaint is that state laws and policies violate the rights of unspecified North Carolina voters—third parties who are strangers to this action.
To overcome the limits on third-party standing, the organizational plaintiffs must show that: (1) they have a “ ‘close’ relationship” with the individuals whose constitutional rights they seek to assert; and (2) the individuals whose constitutional rights are at issue face a “hinderance” to their “ability to
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protect [their] own interests.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). Neither is satisfied here. First, the relationship between the organizational plaintiffs and third-party voters is nothing like the special relationships of intimacy and confidence that courts have found sufficient for third-party standing. See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017) (parent-child); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 (1989) (attorney-client); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 440 n.30 (1983) (abortion provider-patient). Moreover, the organizational plaintiffs’ interests are antagonistic to those of voters to the extent that the organizational plaintiffs challenge laws that safeguard the integrity of the State’s elections.
Second, parties whose rights are directly affected are their own best representatives, to the exclusion of others, unless thirdparty plaintiffs make an affirmative showing otherwise. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215 (4th Cir. 2002); Mackey v. Nationwide Ins. Co., 724 F.2d 419, 422 (4th Cir. 1984). The organizational plaintiffs cannot make such a showing. The claims of individual plaintiffs Clark, Cates, Edwards, Priddy, and Hutchins, who suffer from various ailments, demonstrate that voters readily can bring their own suits.
Other courts have found a lack of third-party standing in voting rights cases, including in the current pandemic, and this
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Court should do the same. See Priorities USA v. Nessel, No. 19-13341, 2020 WL 2615766 (E.D. Mich. May 22, 2020), Greater Birmingham Ministries v. Alabama, 161 F. Supp. 3d 1104, 1115 (N.D. Ala. 2016).
B. Plaintiffs’ Constitutional Voting Rights Claims Must Be Dismissed Under the Political Question Doctrine.
When recently presented with claims that Georgia election officials had not adequately responded to the threat of COVID-19 in violation of the constitutional right to vote, a federal court dismissed the claims under the political question doctrine. See Coal. for Good Governance v. Raffensperger, No. 20-1677, 2020 WL 2509092 (N.D. Ga. May 14, 2020). The court reasoned that the claims had two characteristics that Supreme Court precedent makes important when deciding whether a case presents a political question: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; and (2) a lack of judicially discoverable and manageable standards for resolving it. See Baker v. Carr, 369 U.S. 186, 217 (1962). As to the first, the court pointed to the Elections Clause’s commitment of “the administration of elections to Congress and state legislatures— not courts,” which is “especially important during crises such as the present one involving a medical pandemic.” Coal. for Good Governance, 2020 WL 2509092, at *3. As to the second, the court explained that the plaintiffs’ claims ultimately turned on
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“whether the executive branch has done enough,” and resolving that issue “with any degree of certainty would be impossible, as there are no judicially discoverable and manageable standards.” Id.
Coalition for Good Governance is on all fours with this case, its reasoning is persuasive, and this Court should follow it. Any standard for resolving claims in the sensitive area of election regulation “must be grounded in a limited and precise rationale and be clear, manageable, and politically neutral.” Common Cause v. Rucho, 139 S. Ct. 2484, 2498 (2019) (quotation marks omitted). Here, the General Assembly balanced many incommensurable values when deciding upon procedures for the upcoming election during a pandemic. The Court cannot second-guess this judgment without making “an initial policy determination of a kind clearly for nonjudicial discretion,” Baker, 369 U.S. at 217, and even after making that threshold legislative judgment the Court would need to set about making a series of further “unmoored determination[s]” before deciding whether to order the sweeping relief Plaintiffs request Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012).
C. The State’s Election Laws Do Not Unduly Burden the Right To Vote.
Even if the Court has jurisdiction, Plaintiffs are unlikely to succeed on the merits of their constitutional right-to-vote claims.
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1. The Applicable Legal Framework The Court’s review is dictated by the Anderson-Burdick framework. Lee v. Va. State Bd. of Elections, 843 F.3d 592, 604– 05 (4th Cir. 2016) (citing Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992)). That framework accepts “that there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Id. at 605 (quotation marks omitted). Reviewing courts accordingly first “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Id. (quotation omitted). If the restriction is “severe,” it “must be narrowly drawn to advance a state interest of compelling importance.” Id. at 606. But this strict scrutiny is applicable only when “the State totally denied the electoral franchise to a particular class of residents, and there was no way in which the members of that class could have made themselves eligible to vote.” Mays v. LaRose, 951 F.3d 775, 786 (6th Cir. 2020) (quoting Rosario v. Rockefeller, 410 U.S. 752, 758 (1973)). Meanwhile, “a reasonable, nondiscriminatory restriction on voting rights” is “justified by a State’s important regulatory interests.” Lee, 843 F.3d at 606 (quotation marks omitted); see also Fusaro v. Cogan, 930 F.3d 241, 257–58 (4th Cir. 2019).
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2. Voter Registration Plaintiffs argue that “[i]n light of the COVID-19 pandemic North Carolina’s 25-day registration deadline and failure to provide broader online voter registration severely burden the right to vote.” PI Br. 18. Plaintiffs cannot credibly claim that the 25-day registration deadline somehow “totally denie[s]” the right to vote, because the State provides ample registration opportunities. In addition to traditional registration methods, the State provides online voter registration for all residents with a North Carolina driver’s license or DMV-issued ID. Furthermore, voters may continue to register after the 25-day deadline at one-stop early voting locations that are available beginning the third Thursday before an election through the last Saturday before an election. See N.C. GEN. STAT. § 163-227.2(b). Given these ample registration opportunities, Plaintiffs cannot plausibly allege that voters will be denied the opportunity to register. The State makes that opportunity available for every voter; the State is not responsible if any voters choose not to avail themselves of those opportunities. Because voters “have ample time and opportunity” to register, the 25-day requirement’s burden on voters is, at most, “modest.” Pisano v. Strach, 743 F.3d 927, 936 (4th Cir. 2014). The State’s interests justify the registration deadline. The State has “an interest in ensuring orderly, fair, and efficient
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procedures for the election of public officials.” Id. at 937 (quotation marks omitted). “This interest necessarily requires the imposition of some cutoff period to verify the validity of” the applications. Id. (quotation marks omitted). Plaintiffs give no reason to think that the 25-day requirement is incongruent with that interest. The balance between the modest burden of the registration deadline and the State’s interest in verification favors the State.
For similar reasons, the State’s decision offer online registration only through the DMV’s website is perfectly constitutional. Legislative Defendants are not aware of any case holding that a State is obligated by the federal Constitution to have any online voter registration system in addition to the traditional paper-based one. That the State even offers even a single website for online registration puts it ahead of about 11 other states including Maine, New Hampshire, and Texas. See Online Voter Registration (“Online Voter Registration I”), NAT’L CONFERENCE OF STATE LEGISLATURES (Feb. 3, 2020), https://bit.ly/2YALXqd.
Plaintiffs offer virtually no explanation for how an additional registration website administered by DHHS would meaningfully improve registration opportunities. They offer no evidence of the proportion of eligible, unregistered North Carolina citizens who do not have DMV-issued identification and cannot register through other means. See Online Voter
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Registration, N.C. STATE BD. OF ELECTIONS, https://bit.ly/31oVKSd

(last visited June 26, 2020). Available statistics indicate that

the number is likely is substantially less than 10% and perhaps as

low as 0.1%. See N.C. State Conference of NAACP v. Cooper, 430 F.

Supp.3d 15, 38 (M.D.N.C. 2019) (observing that in 2019 the SBOE

found that at least 91.9% of registered voters had DMV-issued ID);

Citizen Voting-Age Population: North Carolina, U.S. CENSUS BUREAU

(Nov. 15, 2016) (7,296,335 citizens of voting age),

https://bit.ly/3dpNtzv; Office of Highway Policy Info., Highway

Statistics 2018, FED. HIGHWAY ADMIN. (Feb. 28, 2020) (7,267,042

licensed

drivers

in

North

Carolina

in

2016),

https://bit.ly/31dzLxu; Kim Westbrook Strach, Prior Education

Efforts on Voter Identification Requirements (2014-16), at slides

30–31, N.C. STATE BD. OF ELECTIONS & ETHICS ENFORCEMENT (Nov. 26, 2018)

(less than 0.1% of voters in March 2016 primary cast provisional

ballot for lack of qualifying ID, which included DMV-issued ID),

https://bit.ly/2lLiV6M. Nor do Plaintiffs explain how restricting

online registration to those with DMV-issued ID unduly burdens the

right to vote, when that is majority practice of the States. See

Online Voter Registration I, supra. And Plaintiffs further do not

explain how even a single voter has ever been hindered from

registering to vote because DHHS has not operated a registration

website apart from the DMV’s. In short, they point to no tangible,

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concrete burden that the State’s registration system imposes on any would-be voter.
On the other side of the Anderson-Burdick calculus, Plaintiffs entirely ignore the need to avoid voter confusion and to secure sensitive voter information. Were there a proliferation of State agency websites available for registration, the State would need to expend significant resources to securely maintain the information deposited through the websites and would need to make efforts to allow voters to differentiate those agencies whose websites permit voter registration from those that do not. Moreover, because the State must ultimately verify each voter registration application, see N.C. GEN. STAT. § 163-82.7, a DMVcentered online registration system helpfully connects any applicant to an existing DMV account and therefore streamlines the verification process.
“[F]ederal courts don’t lightly tamper with election regulations,” especially when “the new election procedures proffered by Plaintiffs threaten to take the State into unchartered waters.” Thompson v. Dewine, 959 F.3d 804, 812 (6th Cir. 2020) (per curiam). It is perhaps possible the registration scheme proposed by Plaintiffs here “will prove workable,” but those same changes “may also pose serious security concerns and other, as yet unrealized, problems.” Id. While federal courts “can enter positive injunctions that require parties to comply with existing
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law,” they may not usurp the authority of State officials “to choose among many permissible options when designing elections.” Id. Whether to have one, two, or many online portals for voter registration is exactly the kind of discretionary choice left to the State.
3. The Ballot Harvesting Ban Before HB1169, North Carolina law: (1) required that an absentee ballot request be physically submitted using the State’s Absentee Ballot Request Form; (2) allowed only a “voter’s near relative or verifiable legal guardian” or MAT members to “complete[], partially or in whole” or to “sign[]” the request form, see N.C. GEN. STAT. § 163-230.2(e)(2); and (3) allowed only the voter, his near relative or verifiable legal guardian, a MAT member, the Postal Service, or a statutorily authorized delivery service to deliver a completed request form, see id. § 163230.2(c), (e)(4). Plaintiffs challenged all three of these laws, the former of which they dubbed the “Form Requirement” and the latter two of which they refer to as the “Organizational Assistance Ban,” PI Br. 21–22, although it would be more aptly described as a “Ballot Harvesting Ban.” Of course, “there is no constitutional right to an absentee ballot.” Mays, 951 F.3d at 792. Therefore, restrictions on absentee ballots are reviewed only for rationality unless the putative voter
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is “in fact absolutely prohibited from voting by the State” when looking at the state’s election code “as a whole.” McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807–08 & 808 n.7 (1969) (emphasis added); see also Tex. Democratic Party v. Abbott, 961 F.3d 389, 403 (5th Cir. 2020).
North Carolina “permits the plaintiffs to vote in person; that is the exact opposite of absolutely prohibiting them from doing so.” Tex. Democratic Party, 961 F.3d at 404 (quotation marks and alterations omitted). Therefore, “McDonald directs [this Court] to review [North Carolina absentee-ballot laws] only for a rational basis.” Id. at 406. This is true not only for the Ballot Harvesting Ban but also for the additional absentee restrictions that Plaintiffs challenge. That said, as Legislative Defendants show below, each challenged provision of North Carolina law satisfies even the inapplicable Anderson-Burdick framework.
With the passage of HB1169, Plaintiffs’ challenge to the Form Requirement has largely been mooted; the State will now allow absentee ballot requests online and by email and fax for all further 2020 elections. While Plaintiffs continue to fault the State for choosing not to allow absentee ballot requests to be submitted over the phone, see PI Br. 29, the lack of such an option when voters can request absentee ballots online, by email or fax, or through the mail is not a “severe” burden on the right to vote. Whatever burden exists is minute, as any voter with an internet
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connection (or any near relative who has access to the internet) would be able to secure an absentee ballot without the need to travel. And the State’s interest in maintaining written and electronic records, complete with wet signatures or e-signatures for verification, is legitimate and demonstrates why the State continues to disallow over-the-phone requests.
HB1169 also completely neuters Plaintiffs’ challenge to the Ballot Harvesting Ban. The thrust of Plaintiffs’ Anderson-Burdick claim with respect to absentee ballot requests hinged primarily on the burdens allegedly imposed by the Form Requirement. The Ballot Harvesting Ban, according to Plaintiffs, merely “augments” the challenges previously posed by the Form Requirement by allegedly “preventing organizations like LWVNC from helping voters to correctly complete and deliver request forms.” PI Br. 23.
The suspension of the Form Requirement in the 2020 elections undercuts Plaintiffs’ claim of undue burden from the Ballot Harvesting Ban, because without the Form Requirement voters will be less likely to need the assistance of organizations to complete their absentee ballot requests. For example, Plaintiffs argued that because Plaintiff Cates could not print the request form, she would need “to seek help from others” and that the Ballot Harvesting Ban interferes with that assistance. Id. However, now that Cates can submit an online request, she no longer requires such assistance. The same is true of Plaintiff Hutchins; under
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HB1169, his wife may now submit the absentee ballot request for him using the online option.
Plaintiffs’ remaining gripes with the Ballot Harvesting Ban stem from a substantial over-reading of the statute’s restrictions. Section 163-230.2 prohibits three discrete acts: (1) “complet[ing]” the applicant’s request form; (2) “sign[ing]” the form; and (3) “deliver[ing]” the form to the county board of elections. The so-called “Organizational Assistance Ban” does not actually prohibit all forms of “assistance” that an organization may provide a voter. The three acts prohibited by Section 163230.2 still leave organizations with plenty of opportunities to help voters themselves “complete,” “sign,” and “deliver” their requests.
For instance, organizational Plaintiffs lawfully may provide oral or written guidance to voters who “are not confident that they understand the process of voting by mail” and “need[ ] assistance to navigate the ballot request process.” PI Br. 23–24. A LWVNC volunteer could, consistent with Section 163-230.2, discuss filling out an absentee ballot request line-by-line with any of the individual Plaintiffs or any other voter, answering whatever questions the voter has along the way, so long as the volunteer does not “complete” the application in whole or part by putting pen to paper or by making keystrokes; “sign” the application on behalf of the voter; or “deliver” the application
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by physically bringing the request to the county board of elections. The prohibition is exceedingly limited. The narrowness of the Ballot Harvesting Ban means that the law poses only a minimal burden on the right to vote, especially now that voters in 2020 elections are not physically required to deliver paper requests to the county boards.
Meanwhile, the government’s interests in the Ballot Harvesting Ban are weighty. While Plaintiffs concede that the Ban “was passed in the wake of the Dowless Scheme and therefore has some connection to preventing voter fraud,” they fault the restriction as “not narrowly drawn” because the state can “achieve its anti-fraud goals in other, less burdensome ways.” PI Br. 29. This fundamentally misunderstands the Anderson-Burdick framework.
“The ‘narrow tailoring’ or ‘least restrictive means’ analysis has always been reserved for a court’s strict scrutiny of a statute.” Wood v. Meadows, 207 F.3d 708, 716 (4th Cir. 2000) (emphasis added). And under Anderson-Burdick, “requirements constituting an unreasonable, discriminatory burden are the only requirements subject to strict scrutiny review.” Id. While Plaintiffs argue about “the extent to which [the State’s] interests make it necessary to burden [their] rights,” that question “only becomes relevant when the challenged statute constitutes an unreasonable, discriminatory burden” subject to strict scrutiny. Id. For “reasonable and nondiscriminatory rules”—like the Ballot
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Harvesting Ban—the court must “ask only that the state articulate its asserted interests.” Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 719 (4th Cir. 2016) (quotation marks and alterations omitted). This is “not a high bar” and can be cleared with “[r]easoned, credible argument,” rather than “elaborate empirical verification.” Id (quotation omitted).
The State has met its burden. The Dowless scheme exposed that absentee ballots are particularly susceptible to fraud. See Comm’n on Fed. Election Reform, Building Confidence in U.S. Elections 46, CTR. FOR DEMOCRACY & ELECTION MGMT., AM. UNIV. (Sept. 2005), https://bit.ly/2YxXVRh. Indeed, Legislative Defendants’ expert found evidence of at least 1,265 voters who voted in both North Carolina and another state in the 2016 general election—64% of whom cast an absentee ballot in North Carolina. Block Decl. ¶38. In the aftermath of the Dowless scandal, the State reasonably and credibly decided that preventing abuse of the ballot collection process required targeted restrictions on handling absentee ballot requests by individuals outside of the voter’s family and the MAT. SB 683 passed with unanimous support in the Senate and with a lone nay in the House. Plaintiffs cannot credibly contend that 160 state legislators lacked any “reasoned” or “credible” arguments for enacting this limited regulation on ballot harvesting. In these circumstances, the Court thus has “no basis for finding [the] state statutory scheme unconstitutional.” Wood, 207 F.3d at 717.
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4. The Witness Requirement North Carolina law requires that for the 2020 elections an absentee-by-mail voter need only “mark[] the ballot in the presence of at least one person who is at least 18 years of age” and not otherwise disqualified by North Carolina law, “provided that the person signed the application and certificate as a witness and printed that person’s name and address on the container-return envelope.” HB1169 § 1(a). The State’s relaxed Witness Requirement satisfies the Anderson-Burdick test. The law is not subject to strict scrutiny because it does not impose “an unreasonable, discriminatory burden” on voting rights. Wood, 207 F.3d at 716. Indeed, the Witness Requirement poses a modest burden even for those voters who live alone and are susceptible to the virus. The law only requires that the ballot be marked “in the presence” of a witness, HB1169 § 1(a), and “presence” in similar contexts (like signing wills) is satisfied even if a witness is in a different room or several feet away from the individual signing a document. See, e.g., Umstead v. Bowling, 150 N.C. 507, 64 S.E. 368, 371 (1909). Voters therefore can satisfy the Witness Requirement while abiding by all relevant social-distancing and sanitization guidelines. For example, any family member, friend, neighbor, mail-delivery person, food-delivery person, or MAT member can watch the voter mark their ballot through a window, glass door, or
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other barrier. At that point, the voter can pass the ballot under a closed door or through an open window to be marked, signed, and returned (after handwashing or sanitizing) without direct interaction between the two persons. These options are available to practically all voters living alone and would not require the voter or the witness to come within six feet of each other or break other social-distancing guidelines. By engaging in these sorts of protective activities, voters can vote without exposing themselves to any appreciable risk of contracting the virus. See Plush Decl. ¶¶7, 11–14, 18–19, 21; Schauder Decl. ¶¶11–18.
Because the Witness Requirement is a “reasonable and nondiscriminatory rule[],” the State’s burden is merely to “articulate its asserted interests”, with “[r]easoned, credible argument,” rather than “elaborate empirical verification.” Libertarian Party of Va., 826 F.3d at 708 (quotation marks and alterations omitted). The Witness Requirement is a rational means of promoting the State’s interest in deterring, detecting, and punishing voter fraud. And that interest is compelling. See Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir. 2008). Articulation of this interest alone suffices to “justify[] [the State’s] reasonable, nondiscriminatory” Witness Requirement. Wood, 207 F.3d at 717.
Plaintiffs argue that the Witness Requirement is “not a particularly effective anti-fraud measure,” PI Br. 33, and “is not
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narrowly tailored,” id. at 34. But the Witness Requirement does not need to be narrowly tailored, see Wood, 207 F.3d at 716, and Plaintiffs’ criticism of the requirement’s effectiveness misses the mark. Plaintiffs’ appeal to Thomas v. Andino, No. 20-01552, 2020 WL 2617329 (D.S.C. May 25, 2020), is misplaced because under the South Carolina provision there election officials arguably “have no ability to verify the witness signature” because it law did not mandate the inclusion of verifying information. Id. at *19–20. The 2020 Witness Requirement requires the witness to print his or her name and address, thereby serving as a more “effective fraud deterrence, prevention, detection, [and] prosecution tool[].” PI Br. 35.
5. Drop Boxes Plaintiffs seek to enjoin the State to “provide for contactless drop boxes for voters to deliver absentee ballots.” PI Br. 22. Plaintiffs make this claim despite the fact that “there is no constitutional right to an absentee ballot” in the first place, Mays, 951 F.3d at 792, let alone a right to deliver that ballot however one sees fit. Plaintiffs assert that drop boxes “would allow voters without access to postage and USPS pick-up to securely deposit their ballots without breaking social distancing guidelines, and would further reduce the strain on North Carolina’s mail infrastructure.” PI Br. 27. But simply because such drop boxes
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might benefit some absentee voters, that alone does not mean that the State’s decision to allocate its limited resources toward other election-related matters somehow runs afoul of the Constitution. Plaintiffs impliedly speculate that voters “rel[iance] on USPS to safely submit their ballots” will potentially prove insufficient given that “USPS will have to handle an unprecedented volume of absentee ballots.” Id. These conclusory suppositions—unsupported by any evidence—fall far short of showing that voters lack adequate opportunities to submit their mail-in ballots without drop boxes.
Plaintiffs cite no judicial authority either questioning the constitutional adequacy of permitting Postal Service delivery of absentee ballots or imposing on a State a particular method of returning absentee ballots. Indeed, at most only “[t]en states provide ballot drop boxes in some or all counties.” Voting Outside the Polling Place: Absentee, All-Mail and Other Voting at Home Options, NAT’L CONFERENCE OF STATE LEGISLATURES (June 22, 2020), https://bit.ly/3ezVWll. Given that the historical and present norm among the states is not to provide drop boxes, it would be unusual indeed if 80 percent of states were unknowingly violating the Constitution.
And while Plaintiffs assert that “North Carolina can easily implement” a drop box program, PI Br. 27, that is untrue. Contactless drop boxes present several problems including (1) the risk of partisan manipulation and discrimination in selecting the
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locations of the drop boxes (or a perception thereof); (2) the cost of purchasing and securing the boxes; (3) the need to monitor and collect ballots from the drop boxes and to prevent loss, tampering, vandalism, or theft; and (4) the burdens of providing the security for county board employees who will need to collect and transport the ballots. See Devore Decl. ¶10; Hawkins Decl. ¶7.
Because the State’s decision to abstain from providing drop boxes is nothing more than a “reasonable and nondiscriminatory rule[],” the State’s burden is merely to “articulate its asserted interests” with “[r]easoned, credible argument.” Libertarian Party of Va., 826 F.3d at 719 (quotation omitted). Its asserted interests in administrative convenience and the allocation of limited resources in the remaining time before the election “readily falls under the rubric of a state’s regulatory interests, the importance of which the Supreme Court has repeatedly recognized.” Wood, 207 F.3d at 715 (quotation marks omitted). And the State’s decision to abstain from wading into the practice of drop boxes clearly “furthers these interests.” Id.
6. Opportunity To Cure Plaintiffs argue that the State unduly burdens the right to vote by not guaranteeing to voters statewide “an opportunity to cure deficient absentee ballot requests or ballots, or to submit a [Federal Write-in Absentee Ballot] as an alternative of last
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resort.” PI Br. 36. Plaintiffs confuse what they believe to be good policy with what the Constitution demands of States.
Some of Plaintiffs’ concerns derive from mistaken premises already addressed. For example, Plaintiffs assert that “there is a heightened risk that voters new to mail-in absentee voting will fail to follow the proper procedures” due to the Ballot Harvesting Ban. But the Ban does not prevent any person from helping an individual understand the procedures surrounding mail-in absentee voting and would permit the organizational plaintiffs’ members to walk a voter line-by-line through an absentee ballot. More fundamentally, Plaintiffs cannot identify a single instance where election officials rejected an absentee ballot based on some mistake that could have been cured. This alone indicates that the purported burden here is, at most, minimal.
Plaintiffs’ other predominant concern—that State and county election officials, as well as the Postal Service will “fail[] to timely deliver” absentee ballots to voters in the mail, id. at 37— rests on speculation that falls short of establishing a significant burden. Plaintiffs merely assert that because of the expected increase in absentee mail-in ballot use this November “it is likely that many North Carolina voters will likewise receive their ballots too late to cast them.” Id. Plaintiffs’ only evidence concerns the failure to deliver absentee ballots in recent elections this past spring. Of course, there is a significant difference between those
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primary elections and the November general elections: time. Given the timing of COVID-19’s spread in the United States, election officials and the Postal Service had little time to make adjustments in the spring. The November election, meanwhile, is still more than four months away and both government officials and postal employees have greater notice of the challenges that lie ahead and are therefore better equipped to confront them effectively.
Plaintiffs also ignore the State’s substantial interests in finality and administrative convenience. What Plaintiffs seek—a formal administrative apparatus designed to cure approximately 90,000 absentee ballots, see Gronke Decl. ¶15 fig. 4, Doc. 12-2 (June 5, 2020) (2016 statistics), and countless more absentee ballot request forms—could upend the finality of North Carolina’s elections—and perhaps their legitimacy. Absentee ballots can be received by the county boards as late as election day itself and requiring election officials to dedicate potentially thousands of hours to assessing the curative potential for each rejected absentee ballot could easily delay election results—particularly in close contests—by weeks. While some county boards have opted to undertake this process, see Devore Decl. ¶11; Hawkins Decl. ¶8, the State’s decision to refrain from imposing such a curative process on each county board is nonetheless backed by important
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and substantial interests in finality and administrative convenience.
Further, while Plaintiffs demand that mail-in absentee voters be permitted to correct mistakes made in casting their ballots, they have not a word to say about in-person voters, who clearly do not have an opportunity to cure any mistakes they make after casting their votes. Absentee voters therefore are not treated any worse than other voters.
Because the State’s decision to abstain from providing a mandatory curative process for absentee ballots is a “reasonable and nondiscriminatory rule[],”and because the State’s articulated its asserted with “[r]easoned, credible argument,” Libertarian Party of Va., 826 F.3d at 719, its practice is constitutional.
7. The Home County Requirement North Carolina law applicable to the 2020 elections requires that at least one poll worker be a resident of the precinct, and that all poll workers in the precinct at least be members of the county. See HB1169 § 1(b). Plaintiffs take aim at even this modest polling-place regulation. See Second Am. Compl. ¶¶79–82, Doc. 30 (June 18, 2020). Plaintiffs’ challenge to the “Home County Requirement” can be rejected summarily. The thrust of Plaintiffs’ claim is that enjoining the Home County Requirement is “required to prevent the closure of polling locations in the November election in light of
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the anticipated persistence of COVID-19 and the advanced age of poll workers.” PI Br. 41. But none of Plaintiffs’ preliminary injunction papers address the central premise of this argument: that the Home County Requirement causes precinct consolidation. While Plaintiffs’ exhibits and declarations do address the potential connections between a Majority Precinct Requirement and precinct consolidation, see, e.g., Lopez Decl. ¶29; Gronke Decl. ¶¶23, 50, 60; Bartlett Decl. ¶22, Doc. 12-3 (June 5, 2020); Riggs Decl. Ex. 1, at 5, Doc. 12-7 (June 5, 2020); Riggs Decl. Ex. 2, at 4, Doc. 12-7 (June 5, 2020), they say nothing about how a Home County Requirement—which significantly expands the pool of potential poll workers for any given polling place—would have a similar effect.
Indeed, one of Plaintiffs’ own exhibits specifically requested that the legislature “allow county boards to recruit and train poll workers from across the county,” Riggs Decl. Ex. 3, at 1, Doc. 12-7 (June 5, 2020) (emphasis added), i.e., that the General Assembly adopt the very Home County Requirement that Plaintiffs now assail. See also Second Am. Compl. ¶81.
The most that Plaintiffs can say about the Home County Requirement is the assertion in their amended complaint that a June primary election in Georgia shows “that this expansion will still be insufficient to prevent a poll worker shortage, as even county-wide recruitment of poll workers proved insufficient to
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properly staff poll locations.” Id. ¶82. This conclusory allegation would not suffice to survive a motion to dismiss, let alone justify a preliminary injunction. Plaintiffs offer no explanation for how an anecdotal news account of a handful of polling locations in another state is at all probative of the Home County Requirement’s effect on the 2020 General Election in North Carolina.
Plaintiffs cannot show that the law burdens their rights to vote at all and it therefore necessarily satisfies AndersonBurdick. See McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 n.6 (4th Cir. 1995). At any rate, the State’s interest in election administration and integrity supports the requirement that poll workers reside in-county.
8. The Uniform Hours Requirement Finally, Plaintiffs argue that the State’s Uniform Hours Requirement—that all early voting sites remain open during uniform hours and that all sites aside from the county board office must be open from 8:00 AM to 7:30 PM—unconstitutionally burdens the right to vote. But this claim rests upon speculation and a disregard for the State’s important interests in election integrity. Plaintiffs claim that the Uniform Hours Requirement “caused 43 counties to reduce the number of early voting sites in the 2018 general election compared to 2014 and over two-thirds of counties
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to reduce weekend hours.” PI Br. 41. But the overall picture is one of vastly expanded early voting opportunities in 2018. Statewide, there was a modest 17% decrease in the number of early voting sites, but that was coupled with a robust 94% increase in early voting hours. See Callanan Decl. ¶¶9–10. Plaintiffs therefore have zero evidence that the Uniform Hours Requirement restricted voting opportunities.
Plaintiffs also lack any basis for asserting that any precinct consolidation resulting from the Uniform Hours Requirement will cause voters “confusion,” “increased travel time,” or “long lines and crowds.” PI Br. at 42. First, the Uniform Hours Requirement is designed to reduce voter confusion. Under the law, “[v]oting hours for a county can be publicized and a voter in that county can be assured that their voting site will be open on those days and times without having to do further research.” Hawkins Decl. ¶5; see also Devore Decl. ¶8; Weatherly Decl. ¶3. And to the extent that a county confronts precinct consolidation (for whatever reason), it must give the public 45 days’ notice through a variety of media and must mail individual notices to all registered voters no later than 30 days before the election. See N.C. GEN. STAT. § 163-128(a).
Second, Plaintiffs point to no concrete evidence showing that the Uniform Hours Requirement has led to “increased travel time” for Permar or any other early voter. The early voting sites for Durham County have not yet been announced and at least one
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convenient early voting location close to Permar’s place of work existed prior to the March Primary Election. See supra Part I.A.1.f. Nor have Plaintiffs proffered any evidence that the Uniform Hours Requirement would inevitably lead to unavoidable lines and crowds at early voting locations. Indeed, one should suspect the law to have the opposite effect: Even if fewer early voting locations are established for the 2020 General Election, the locations that remain open will operate at least every weekday from 8:00 AM to 7:30 PM. As explained above, in 2018 the requirement led to a near-doubling of the total early voting hours in the State. If anything, then, the ability to avoid a crowded polling station should be enhanced under the Uniform Hours Requirement.
Perhaps most importantly, Plaintiffs’ speculation about the need for precinct consolidation lacks foundation in light of HB1169, which allocates an additional $6 million “for early onestop voting-related expenses” in counties “that adopt uniform early one-stop voting plans.” HB1169 § 11.1(b)(5). This substantial funding significantly decreases the likelihood that the Uniform Hours Requirement will cause precinct consolidation on the scale that Plaintiffs’ imply.
The Uniform Hours Requirement is designed to expand access to one-stop early voting. To the extent that the law may not fully produce that intended effect and instead burdens the right to vote,
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that burden is modest. Moreover, the State’s interests in avoiding voter confusion by promoting uniformity and promoting administrative convenience by making it easier for counties to publicize early voting hours, see Devore Decl. ¶8; Hawkins Decl. ¶5; Weatherly Decl. ¶5, justify such a reasonable, nondiscriminatory election regulation. The State’s additional interest in reducing the potential for discrimination in allocation of early voting hours throughout a county (or the suspicion thereof) likewise justifies whatever burdens may flow from the Uniform Hours Requirement. See id.
D. Plaintiffs’ “Unconstitutional Conditions” Claim Fails. 1. The unconstitutional-conditions doctrine is irrelevant to this case because the State has not conditioned the provision of any government benefit on Plaintiffs agreeing to forgo exercise of their constitutional rights. “[T]he unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606 (2013) (emphasis added); see also Planned Parenthood of Ind. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 986 (7th Cir. 2012); Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1421–28 (1989). The circumstances that trigger the unconstitutional-conditions doctrine are not present here: Plaintiffs are not challenging the withholding of government
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benefits, and Legislative Defendants are not arguing that Plaintiffs voluntarily agreed to give up a constitutional right in exchange for such benefits.
Plaintiffs contend that the unconstitutional-conditions doctrine is implicated because North Carolina election law allegedly forces them to choose between their constitutional voting rights and their substantive due process right to bodily integrity. But the correct way to analyze cases in which more than one constitutional right is at stake is to apply the ordinary legal standards that govern claims under each of the constitutional rights in question. That is what the en banc Fourth Circuit did when it upheld a Maryland statute that was alleged to unconstitutionally force an indigent criminal defendant to choose between his appellate rights under the Due Process Clause and his Sixth Amendment right to counsel of choice. Miller v. Smith, 115 F.3d 1136, 1139–44 (4th Cir. 1997) (en banc); see also Telescope Media Grp. v. Lucero, 936 F.3d 740, 762 (8th Cir. 2019). The Supreme Court cases that Plaintiffs cite are not to the contrary. Each of those cases applied the ordinary legal standard that was appropriate for the constitutional rights that were at issue, not the unconstitutional-conditions doctrine. See Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977); Dunn v. Blumstein, 405 U.S. 330 (1972); Shapiro v. Thompson, 394 U.S. 618, 634 (1969); Simmons v. United States, 390 U.S. 377, 394 (1968).
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Preceding sections of this brief have already explained why Plaintiffs have not stated viable claims for abridgement of their constitutional voting rights. Those same claims cannot succeed when repackaged under the inapplicable unconstitutional-conditions doctrine.
2. Although mislabeled as a claim under the unconstitutionalconditions doctrine, much of Plaintiffs’ discussion of this claim focuses on their contention that application of North Carolina’s election laws in the upcoming general election would violate their substantive due process right to bodily integrity. This argument is meritless.
In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court held that the Due Process Clause “forbids the State itself to deprive individuals of life, liberty, or property without due process of law, but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” Id. at 194–95 (quotation marks omitted). Under DeShaney and its progeny, the baseline rule is that “[l]iability does not arise when the state stands by and does nothing in the face of danger.” Stevenson ex rel. Stevenson v. Martin Cty. Bd. Of Educ., 3 Fed. App’x 25, 31 (4th Cir. 2001).
Outside the custodial context, the only exception to that rule applies when “affirmative misconduct by the state . . .
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creat[es] or enhanc[es] the danger” that someone confronts. Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir. 1995) (quotation marks omitted). “[A]ffirmative conduct” on the state’s part is “[a] key requirement for liability” under this “narrow” exception, and government officials cannot trigger the exception “merely through inaction or omission.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). Plaintiffs cannot establish any such affirmative conduct by the State. The spread of the coronavirus is a natural phenomenon that the State did not cause, much less cause through any “affirmative” act. Cf. Coal. for Good Governance, 2020 WL 2509092, at *3 n.2. Just as the Constitution would not affirmatively require the State to protect Plaintiffs were they required to traverse crime-ridden streets to reach the polling place, it likewise does not affirmatively require the State to protect Plaintiffs from a pandemic when voting. Imposing such a burden would be particularly inappropriate here, when voters can take simple and common-sense measures such as wearing masks, engaging in social distancing, and using hand sanitizer to protect themselves at the polls. See Plush Decl. ¶¶7, 11–14, 18–19, 21; Schauder Decl. ¶¶11–18.
Plaintiffs cannot sidestep this issue by artfully recharacterizing the State’s failure to take additional precautions against the coronavirus as an “affirmative act”; the Fourth Circuit has often and recently rejected such efforts to use “semantics” to “disguise” the lack of an affirmative act by
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government officials. Rosa, 795 F.3d at 440; see also, e.g., Graves v. Lioi, 930 F.3d 307, 328–29 (4th Cir. 2019); Pinder, 54 F.3d at 1175.
Even if Plaintiffs’ feared injuries were attributable to an affirmative act by the State, their substantive due process argument would still fail because the right that Plaintiffs assert falls far outside the ambit of any right the Supreme Court has ever recognized under the heading of “bodily integrity.” Supreme Court precedent requires a “careful description of the asserted fundamental liberty interest,” Washington v. Glucksberg, 521 U.S. 702, 721 (1997); see Hawkins v. Freeman, 195 F.3d 732, 747 (4th Cir. 1999) (en banc), and Plaintiffs claim a substantive due process right to physical safety while voting. Plaintiffs are unable to cite any case that has recognized such a right—much less the sort of weighty authority that would be necessary to show that this right is “deeply rooted in this Nation’s history and tradition.” Glucksberg, 521 U.S. at 721. “The mere novelty” of Plaintiffs’ claim “is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U.S. 292, 303 (1993).
Cases in which the Supreme Court has recognized substantive due process rights related to bodily integrity reinforce the conclusion that there is no basis for the novel right that Plaintiffs assert. The Court has held that due process prohibits forced sterilizations of criminals, Skinner v. Oklahoma ex rel.
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Williamson, 316 U.S. 535, 541 (1942), certain invasive medical procedures to secure evidence against individuals suspected of committing crimes, Rochin v. California, 342 U.S. 165, 166, 172 (1952), and, in some scenarios, forced administration of antipsychotic medication, Washington v. Harper, 494 U.S. 210, 221– 22 (1990). The Fourth Circuit has extended these cases to prohibit extreme forms of corporal punishment in public schools. See Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980). The fact patterns in each of those cases involved direct, severe, and intentional intrusions on the body by state officers; they are far afield from election officials’ alleged failure to take adequate measures to guard against the spread of a communicable disease.
Further counseling against recognition of the substantive due process right Plaintiffs assert is the fact that the First and Fourteenth Amendments as interpreted in the Supreme Court’s voting rights cases already define a set of constitutional requirements for balancing the benefits and burdens of various voting procedures. Plaintiffs’ claims are properly analyzed under those precedents, not by extending substantive due process—a doctrine the Supreme Court “has always been reluctant to expand . . . because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
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Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019), cannot fill the chasm between existing substantive due process precedents and the right Plaintiffs ask this Court to invent. Guertin ruled that plaintiffs injured by contaminated water in Flint, Michigan, could sue city officials for violating their “constitutional right to be free from forcible intrusions on their bodies against their will.” Id. at 919. The panel majority in Guertin erred in describing the relevant substantive due process right at such a high level of generality, and the panel majority’s decision lies well beyond the outer fringes of the bodily integrity rights that any other American court has recognized. Id. at 954–57 (McKeague, J., dissenting). Plaintiffs’ substantive due process argument asks this Court to move to go considerably farther than even this highly questionable decision. II. Plaintiffs Are Unlikely To Succeed on Any of Their Other
Claims. A. The Ballot Harvesting Ban Does Not Violate the First
Amendment. Plaintiff Schaffer and the organizational Plaintiffs claim that the Ballot Harvesting Ban violates their rights to free speech and free association under the First Amendment. But the Ballot Harvesting Ban does not touch on protected speech or association at all. First, Plaintiffs entirely ignore their burden to show that the ballot harvesting that North Carolina regulates is expressive
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conduct protected by the First Amendment. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). First Amendment protection extends “only to conduct that is inherently expressive.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006). Conduct is inherently expressive if it “is intended to be communicative and . . . in context, would reasonably be understood by the viewer to be communicative.” Clark, 468 U.S. at 294.
Plaintiffs fail to make this showing. The Ballot Harvesting Ban regulates three discrete forms of “assistance”: (1) “complet[ing]” the applicant’s absentee ballot request form; (2) “sign[ing]” it; and (3) “deliver[ing]” it to the county board of elections. None of these actions constitute inherently expressive activity. And Plaintiffs offer no explanation for how this limited regulation of conduct infringes on their First Amendment rights. Plaintiffs can say anything they want to any registered voter regarding absentee ballot requests. Indeed, they can stand over the shoulder of a voter and explain step-by-step how to correctly fill out the absentee ballot request.
Courts assessing the constitutionality of ballot-collection measures regularly hold that they do not implicate the First Amendment. The Fifth Circuit has stated that the “receipt and delivery of completed voter registration applications”—analogues to the restriction here on ballot request delivery—are “two non-
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expressive activities” beyond the protection of the First Amendment. Voting for Am., Inc. v. Steen, 732 F.3d 382, 391 (5th Cir. 2013). The Ninth Circuit has likewise rejected that “the conduct of collecting ballots would reasonably be understood by viewers as conveying . . . a symbolic message of any sort.” Knox v. Brnovich, 907 F.3d 1167, 1181 (9th Cir. 2018). The nonexpressive conduct regulated by the Ballot Harvesting Ban falls beyond the protections of the First Amendment. And even if “complet[ing]” or “sign[ing]” a ballot request form constitutes protected speech, it is the speech of the voter, not the organization or individual assisting the voter. See Knox, 907 F.3d at 1182; Voting for Am., Inc., 732 F.3d at 390.
Because the Ballot Harvesting Ban “regulate[s] conduct only and do[es] not implicate the First Amendment, rational basis scrutiny is appropriate.” Voting for Am. Inc., 732 F.3d at 392. Under that standard the Ballot Harvesting Ban comes to this Court “bearing a strong presumption of validity” and it falls upon Plaintiffs “to negative every conceivable basis which might support it.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993. Meanwhile, the law passes constitutional muster so long as it is “rationally related to legitimate governmental goals,” which can be based on “ ‘rational speculation unsupported by evidence or empirical data.’ ” Wilkins v. Gaddy, 734 F.3d 344, 348 (2013) (quoting Beach Commc’ns, Inc., 508 U.S. at 315). The Ballot
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Harvesting Ban clearly survives under such a deferential standard: It is a rational means of promoting the government’s legitimate interest in combating election fraud. As explained above, the Ballot Harvesting Ban also easily passes the Anderson-Burdick test, to the extent applicable.
B. Plaintiffs Lack Standing To Assert Their Procedural Due Process Challenge, and the Due Process Clause Does Not Require the Procedures Plaintiffs Demand.
1. The individual plaintiffs lack standing to assert their due process claims because speculation that they “may well make errors” on their ballots or ballot request forms, PI Br. 62, falls far short of the “certainly impending” injury that is required to establish Article III standing. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013).
The organizational plaintiffs likewise “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 410. Moreover, the organizational plaintiffs also lack prudential standing. Plaintiffs never suggest that the practices they challenge violate the organizations’ procedural due process rights, and the organizations cannot invoke the constitutional rights of a third party unless they have (1) a sufficiently close relationship with the third party, and (2) the third party is hindered in suing to protect his or her own interests. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). As has already been explained,
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the organizational plaintiffs do not satisfy either of those requirements.
2. On the merits, Plaintiffs assert that North Carolina violates the due process rights of its absentee voters because election officials do not provide a uniform, mandatory process through which voters who submit error-ridden absentee ballots are given a second chance at filling them out. This claim would fail even if Plaintiffs were correct in their premise that election officials provide no such procedures. The Fourth Circuit uses a two-pronged test to determine procedural due process violations: “a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). Here, Plaintiffs cannot satisfy either prong.
First, the absentee vote is not a protected interest. Plaintiffs correctly state that under Wilkinson v. Austin, protected interests may derive from the U.S. Constitution or from “an expectation or interest created by state laws or policy.” 545 U.S. 209, 221 (2005). But the option of an absentee ballot is not a right itself. See Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“The right to vote . . . does not entail an absolute right to vote in any particular manner.”). North Carolina upholds its voters’ protected rights by facilitating elections, regardless of voter access to absentee ballots. See McDonald v. Bd. of Election
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Comm’rs of Chi., 394 U.S. 802, 807–08 (1969). Even if more North Carolinians may choose to vote absentee in 2020 than in previous years, the preference for the absentee option is just that—a preference, not a protected interest. Plaintiffs fail the first prong of the test.
Second, even if absentee voting were a protected interest, it does not follow that North Carolina deprives voters of that interest because the State has not adopted Plaintiffs’ chosen procedural safeguards. In considering safeguards, courts weigh three factors: the protected interest; the risk that the interest will be erroneously deprived and the probable value of additional safeguards; and the public interest, including “the fiscal and administrative burdens” that the safeguards would impose. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). If the burdens of added safeguards would overwhelm their expected value, states may reject them without violating the Due Process Clause. See id. at 349. So it is here.
Plaintiffs insist that North Carolina does not afford mailin absentee voters “any notice of or opportunities to cure material defects in their absentee ballot request form[s] or the absentee ballots themselves.” PI Br. 61. But in fact some, if not all, county boards of election already reach out to absentee voters to help them cure defects when doing so is feasible, see Devore Decl. ¶11; Hawkins Decl. ¶8, and the State Board of Elections has a
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uniform policy encouraging county officials to contact voters to help them correct mistakes on absentee ballot request forms, Numbered Memorandum 2020-03 from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to County Bds. Of Elections 2–4 (Jan. 15, 2020), https://bit.ly/3eASDdj. Plaintiffs say nothing about these existing safeguards and do not even attempt to establish that additional safeguards would have value. These omissions are fatal to Plaintiffs’ effort to establish a likelihood of success on the merits of their procedural due process claim. See Wilkinson, 545 U.S. at 225–28.
In contrast to the dearth of evidence that additional or different procedures would have value, the financial and administrative costs of what Plaintiffs appear to contemplate are overly burdensome. The Fourth Circuit has already ruled on this issue. See Kendall v. Balcerzak, 750 F.3d 515 (4th Cir. 2011). When a county election board rejected 2,603 referendum petition signatures without giving an opportunity for cure, the Kendall court found that there was no procedural due process violation because “the costs of allowing thousands of people to demand a hearing on the validity of their signatures would be disproportionate to the benefits.” Id. at 530. The costs in this case would be significantly greater than in Kendall. One of Plaintiffs’ experts observes that North Carolina “stands out as having a rejection rate higher than average” for absentee ballots,
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Gronke Decl. ¶17, which means that Plaintiffs’ proposed safeguards would require election workers to devote higher-than-average time and manpower to correcting absentee voter errors. In-person voters who make errors on their ballots generally cannot correct mistakes, and mail-in absentee voters are not entitled to any greater procedural protections.
C. The Court Lacks Jurisdiction To Consider Plaintiffs’ Claims Under the Americans With Disabilities Act and Rehabilitation Act, Which Also Fail on the Merits.
The organizational plaintiffs do not claim that any of their members are disabled, and the only individual plaintiffs who claim to be disabled are Clark, Edwards, Priddy, and Hutchins. Plaintiffs say that Clark, Edwards, and Priddy “may well” not receive their absentee ballots in time to cast votes in the upcoming election, Second Am. Compl. ¶¶101, 149, but this is pure speculation. They have suffered no injury-in-fact and do not have a ripe claim under the Americans With Disabilities Act (“ADA”) or the Rehabilitation Act (“RA”). See Clapper, 568 U.S. at 402; Leifert v. Strach, 404 F. Supp. 3d 973, 985 (M.D.N.C. 2019) (Osteen, J.).
Plaintiff Hutchins also has neither standing nor a ripe claim under the ADA and the RA. The SBOE has been tasked with developing guidelines to ensure that MATs will be available to assist voters like Hutchins in completing their ballots, but Plaintiffs complain that the guidelines—which the General Assembly called for less than three weeks ago—“do not exist.” Second Am. Compl. ¶150.
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Plaintiffs also speculate that, regardless of what the guidelines say, Hutchins’s nursing home may not allow a MAT into the facility to provide help. Id. Hutchins will only sustain an injury if: (1) his nursing home remains under lockdown when it is time to cast an absentee ballot, such that his wife cannot help him; (2) some combination of the forthcoming guidelines and the nursing home’s policy prevent a MAT from assisting Hutchins; and (3) there is no non-staff person (such as another nursing home resident) available to help. Hutchins lacks standing because he does not have a certainly impending injury, see Clapper, 568 U.S. at 402, and further factual developments are necessary before the Court can adjudicate any claim that Hutchins may ultimately have, see Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).
Even if Hutchins’s ADA and RA claims did not fail for threshold jurisdictional and prudential reasons, they would fail on the merits. If no one else is available to help Hutchins cast his ballot, he can receive help from another nursing home resident. See N.C. GEN. STAT. § 163-226.3(a)(4). There is no scenario in which Hutchins will be disenfranchised by the prohibition on nursing home staff assisting him, and thus there is no violation of the ADA or the RA. The ADA and RA entitle Hutchins to “meaningful access” to the opportunity to cast an absentee ballot. Alexander v. Choate, 469 U.S. 287, 301 (1985); Nat’l Fed’n for the Blind v. Lamone, 813 F.3d 494, 505–06 (4th Cir. 2016). These statutes do
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not entitle Hutchins to cast his ballot with assistance from whomever he chooses.
D. Plaintiffs Lack Standing To Assert a Claim Under Section 208 of the Voting Rights Act, and Section 208 Does Not Prohibit States from Placing Reasonable Restrictions on Who May Assist Blind Voters in Completing Their Ballots.
1. Section 208 of the Voting Rights Act applies to voters who “require[ ] assistance to vote by reason of blindness, disability, or inability to read or write.” 52 U.S.C. § 10508. Nothing in the record suggests that the organizational plaintiffs have members who fit into that category, and the only individual plaintiff who qualifies is Hutchins. And Hutchins has not demonstrated that he is affected by either of the features of North Carolina law that Plaintiffs challenge under Section 208.
First, Plaintiffs argue that North Carolina law runs afoul of Section 208 by limiting who may hand-deliver a written request for an absentee ballot. PI Br. 70. But North Carolina law allows Hutchins to send the request himself via mail, N.C. GEN. STAT. § 163-226.3(e)(4), and nothing in his declaration suggests that this option would not be his preferred method of delivery. Moreover, Hutchins’s wife has assisted him with voting in the past, see Hutchins Dec. ¶5, and she is a “near relative” who could lawfully hand deliver his request to the county board of elections, N.C. GEN. STAT. § 163-226.3(c). Even while Hutchins’s nursing home is under lockdown, nothing in North Carolina law would prevent him
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from telephoning his wife and asking her to fill out and deliver an absentee ballot request on his behalf. In the absence of any evidence that Hutchins would choose to avail himself of the option to have someone other than his wife hand-deliver the request form, he has not demonstrated that he is threatened with an injury that would provide standing to challenge this aspect of North Carolina law.
Second, Plaintiffs argue that North Carolina law is inconsistent with Section 208 because it does not permit nursing home staff to assist Hutchins in filling out his absentee ballot. See N.C. GEN. STAT. § 163-226.3(a)(4). Hutchins says that he “would like [nursing home] staff members to be permitted to assist [him] in voting and returning [his] absentee ballot,” Hutchins Dec. ¶11, but he does not say that he has no other equally effective options available to him. Under Section 163-226.3(a)(4), both Hutchins’s wife and a MAT member may lawfully help Hutchins complete his absentee ballot. Moreover, other nursing home residents could assist him.
2. If Hutchins had standing to bring a Section 208 claim, this claim would fail on the merits. By its terms and with certain exceptions, Section 208 allows blind, disabled, and illiterate voters to be “given assistance by a person”—not any person—“of [their] choice.” 52 U.S.C. § 10508 (emphasis added). The statute’s text thus “allows the voter to choose a person who will assist the
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voter, but it does not grant the voter the right to make that choice without limitation.” Ray v. Texas, No. 2-06-385, 2008 WL 3457021, at *7 (E.D. Tex. Aug. 7, 2008). Congress anticipated that “[s]tate provisions would be preempted only to the extent that they unduly burden the right recognized in this section, with that determination being a practical one dependent upon the facts.” S. REP. NO. 97-417, at 63 (May 25, 1982). Courts have repeatedly rejected Section 208 challenges to state laws that narrowed, but did not eliminate, a voter’s choice as to who may assist with the completion of a ballot. See Ray, 2008 WL 3457021, at *7; Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1198 (Ill. App. 1st Dist. 2004); DiPietrae v. City of Philadelphia, 666 A.2d 1132, 1135–36 (Pa. Commw. Ct. 1995). North Carolina law leaves Hutchins with many options for who will assist him in filling out his ballot— including his wife, a MAT member, and (if neither of the first two options is available) any resident of Hutchins’s nursing home. Forbidding nursing home staff to help Hutchins and other vulnerable voters with this sensitive task is a reasonable step designed to prevent fraud or undue influence, and it does not unduly burden Hutchins’s selection of who will assist him.
Furthermore, Section 208 only requires that states make some method of voting with assistance available to voters who are covered by the provision; North Carolina law is consistent with Section 208 so long as there is at least one means by which Hutchins
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can cast his ballot with help from a person of his choice. If Hutchins wishes to complete his ballot with help from a member of his nursing home’s staff, that staff person may accompany him to vote absentee at a one-stop voting location. N.C. GEN. STAT. § 163227.2(e). The same staff person could also help Hutchins with his ballot at a polling place on election day. Id. § 163-166.8(a)(2). While Plaintiffs generally allege that these options are too dangerous, nothing in the record suggests that Hutchins could not take simple measures to protecting himself, including wearing a mask and gloves, using hand sanitizer, and bringing his own pen. See Plush Decl. ¶¶7, 11–14, 18–19, 21; Schauder Decl. ¶¶11–18. Especially in the absence of any concrete evidence establishing that these alternatives are unduly risky, Section 208 does not mandate that Hutchins be permitted to choose a member of his nursing home’s staff to help him complete his ballot from his nursing home. III. No Preliminary Injunction Should Issue, and Any Relief
Ordered Must Be Limited to Redressing Plaintiffs’ Injuries. A. The Remaining Factors Weigh Heavily Against Issuance
of a Preliminary Injunction. Even if Plaintiffs could show that they are likely to prevail on the merits, they also must establish an irreparable injury, that the injunction will serve the public interest, and that the threatened injury outweighs any damage that an injunction may cause the opposing party. These factors tilt heavily against the issuance
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of an injunction, especially the sweeping injunction that Plaintiffs request. The “inability [for a State] to enforce its duly enacted [laws] clearly inflicts irreparable harm on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018). The election-law context of this case heightens the State’s interest. Voter confusion, once caused, will not be easily remedied. In fact, a preliminary injunction modifying North Carolina election procedures followed by a later court order contradicting it would exacerbate that confusion. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam).
Furthermore, the State’s and the public’s interest in the enforcement of existing North Carolina election law is especially potent in the middle of a global health crisis. State and local executive officials are closest to the problems at hand, and they need discretion to decide—consistent with the duly enacted laws of the General Assembly—how best to achieve the competing objectives of protecting public health, preventing voter fraud, and promoting participation in the upcoming general election.
B. The Purcell Doctrine Bars the Relief Sought by Plaintiffs.
The Supreme Court, invoking its decision in Purcell v. Gonzalez, “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140
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S. Ct. 1205, 1207 (2020) (per curiam). That is because “practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges.” Riley v. Kennedy, 553 U.S. 406, 426, (2008). For example, “[c]ourt orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls,” a risk that will increase “[a]s an election draws closer,” Purcell, 549 U.S. at 4–5.
Even if Plaintiffs are correct that one or more aspects of North Carolina election law violate federal law, this Court should abstain from issuing an injunction disrupting the State’s upcoming elections. “In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). Here, equity favors judicial modesty.
In recent months, other courts of appeals faced with electionlaw challenges prompted by the COVID-19 pandemic have followed the Supreme Court’s lead in Republican National Committee and have recognized the need to “heed the Supreme Court’s warning that federal courts are not supposed to change state election rules as elections approach.” Thompson, 959 F.3d at 813; see also Tex. Democratic Party, 961 F.3d at 412. And they have exercised caution
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under Purcell even though “the November election itself may be months away,” Thompson, 959 F.3d at 813, because States cannot reasonably be expected to dramatically alter their election procedures overnight; they need sufficient time to coordinate and plan the logistics of any election-related changes.
For at least some of the relief that Plaintiffs seek—such as building a Statewide system of contactless drop boxes, creating and implementing a Statewide program for curing deficient absentee ballots, or developing secure computer software to process online registrations—the logistical challenges facing state officials are daunting. Indeed, the full effect of Plaintiffs’ proposed remedies cannot even be anticipated with any precision because “moving or changing a deadline or procedure now will have inevitable, other consequences.” Id.
Likewise, the Purcell principle has special purchase where, as here, “local officials are actively shaping their response to changing facts on the ground.” Tex. Democratic Party, 961 F.3d at 412 (quotation omitted). North Carolina legislators have already revised the State’s election laws to address the pandemic. These elected officials are far better positioned than a federal court to assess the balance of benefits and harms that are likely to result from altering the State’s election regulations in the final months before a general election.
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Finally, “[e]quity demands that those who would challenge the legal sufficiency of [legislative] decisions concerning time sensitive public [decisions] do so with haste and dispatch.” Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989). This rule carries additional force in the electoral context and courts have consequently withheld equitable relief on several occasions from plaintiffs who delay in initiating an action or moving for a preliminary injunction. See, e.g., Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990); Ariz. Democratic Party v. Reagan, No. 16-3618, 2016 WL 6523427, at *16–18 (D. Ariz. Nov. 3, 2016); Liddy v. Lamone, 919 A.2d 1276, 1289–91 (Md. 2007).
Plaintiffs here did not file their initial complaint until May 22, 2020—nearly two months after the SBOE’s Executive Director raised the potential need for legislative reform to address the impact of the pandemic on the State’s elections. See PI Br. 11. And then Plaintiffs did not move for a preliminary injunction until more than two weeks later. Both Purcell and Quince Orchard demand that Plaintiffs’ motion be denied.
C. Plaintiffs’ Requested Injunction Is Overbroad. Plaintiffs’ requested injunction is overbroad in two basic ways. First, Plaintiffs ask the Court not only to prohibit North Carolina officials from taking certain unlawful actions but also to take it upon itself to effectively rewrite North Carolina election law. See Pls.’ Am. Mot. for Prelim. Inj. 6–8, Doc. 31
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(June 18, 2020). But federal courts “cannot usurp a State’s legislative authority by re-writing its statutes to create new law.” Thompson, 959 F.3d at 812 (cleaned up). Plaintiffs’ efforts to enlist this Court in what amounts to legislation must be rejected.
Second, whenever this Court exercises its equitable discretion to fashion an injunction, the injunction must be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (emphasis added). The terms of Plaintiffs’ proposed preliminary injunction transgress this bedrock principle because they would have the Court universally enjoin enforcement of a variety of provisions of North Carolina law and rewrite others even though a far narrower remedy would fully redress any cognizable injuries the plaintiffs may sustain.
Take, for example, the recently amended witness requirement. Any injury suffered by the individual named plaintiffs would be fully redressed by enjoining enforcement of that requirement as applied to those individuals; the Court need not enjoin enforcement of the requirement throughout the state to provide the individual plaintiffs complete relief. A similarly tailored injunction could require the State to allow the individual plaintiffs to request absentee ballots over the telephone and without completing the form required by N.C. GEN. STAT. § 163-230.2(a); could authorize
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the individual plaintiffs to receive help from whomever they choose in completing and submitting their absentee ballots; and could direct the State to contact the individual plaintiffs and help them correct any deficiencies on their absentee ballots. Awarding the individual plaintiffs any broader relief would do nothing to cure their alleged injuries and therefore contravene Fourth Circuit precedent on the appropriate scope of injunctive relief. See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 436 (4th Cir. 2003); Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).
An injunction awarded to the organizational plaintiffs should be similarly tailored to the extent that the Court concludes that either of those plaintiffs may proceed on a representational standing theory. Before the Court issues a preliminary injunction, it should direct these entities to specifically identify any individual members on whom they rely for purposes of representational standing. If the Court concludes that preliminary injunctive relief is otherwise appropriate, it should tailor the injunction to secure the interests of identified individual members of the organizational plaintiffs—not universally enjoin or blue pencil the challenged provisions of North Carolina law. To be sure, broader relief might be appropriate if the organizational plaintiffs could show that they have organizational standing to
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sue based upon a diversion-of-resources theory, but that theory fails for both Article III and prudential reasons discussed above. See supra Part I.A.
Even if the Supreme Court and Fourth Circuit precedents cited in the preceding paragraphs did not require this Court to tailor any preliminary injunction to the plaintiffs’ actual injuries, additional considerations would make that the appropriate course.
First, to seek injunctive relief that would benefit nonparties, Plaintiffs must ask this Court to certify a class action under Federal Rule of Civil Procedure 23(b)(2). The procedural requirements of that Rule are more than empty formalisms; they reflect, among other things, decades of Supreme Court due process precedent on what courts must do to ensure that nonparties are adequately represented in litigation before their rights are adjudicated. Had Plaintiffs sought class certification, it is far from certain that they could have satisfied the Rule’s typicality and adequacy requirements, for they are challenging statutory provisions that benefit voters by safeguarding the upcoming election—features of a larger statutory regime that balances competing objectives in a manner that was blessed by overwhelming bipartisan majorities of the General Assembly just two weeks ago. See Alston v. Va. High School League, Inc., 184 F.R.D. 574, 579 (W.D. Va. 1999); see also Schlaud v. Snyder, 785 F.3d 1119, 1127 (6th Cir. 2015); Valley Drug Co. v. Geneva Pharm.,
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350 F.3d 1181, 1198 (11th Cir. 2003). The Court should not permit Plaintiffs to sidestep Rule 23(b)(2) by awarding them a preliminary injunction that does more than redress their own injuries.
Second, issuing an injunction designed to remedy injuries sustained by individuals who are not parties to this litigation would exceed this Court’s authority under Article III. As the Supreme Court has explained, “[t]he actual-injury requirement would hardly serve the purpose . . . of preventing courts from undertaking tasks assigned to the political branches . . . if once a plaintiff demonstrated harm from one particular inadequacy [of] government administration, the court were authorized to remedy all inadequacies in that administration.” Lewis v. Casey, 518 U.S. 343, 357 (1996); accord DaimlerChrysler Corp v. Cuno, 547 U.S. 332, 353 (2006).
Third, the specific subject matter of this case requires this Court to proceed with particular caution in fashioning equitable remedies. See Harris v. McCrory, 159 F. Supp. 3d 600, 627 (M.D.N.C. 2016). The Framers understood that regulating elections is an inherently legislative task, and Article I, Section 4 reflects a careful balance of competing state and federal legislative interests. Legislative policy choices are owed special deference in this context, and the Supreme Court has repeatedly admonished the lower courts in redistricting cases for “fashioning a courtordered plan that reject[s] state policy choices more than . . .
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necessary to meet the specific constitutional violations involved.” Upham v. Seamon, 456 U.S. 37, 42 (1982); North Carolina v. Covington, 138 S. Ct. 2548, 2554 (2018); White v. Weiser, 412 U.S. 783, 787–88 (1973); see McGhee v. Granville County, 860 F.2d 110, 115 (4th Cir. 1988). For this reason as well, the Court should resist Plaintiffs’ invitation to issue a preliminary injunction that does more than redress the named plaintiffs’ injuries.
CONCLUSION The motion for a preliminary injunction should be denied.

Dated: June 26, 2020
/s/ Nicole J. Moss Nicole J. Moss (State Bar No. 31958) COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 nmoss@cooperkirk.com
Local Civil Rule 83.1 Counsel for Legislative DefendantIntervenors

Respectfully submitted,
David H. Thompson Peter A. Patterson Steven J. Lindsay* COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 dthompson@cooperkirk.com
Counsel for Legislative Defendant-Intervenors
*Notice of Appearance Forthcoming

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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1) and this Court’s Order of June 18, 2020 (Doc. 29), the undersigned counsel hereby certifies that the foregoing Response in Opposition to Plaintiffs’ Amended Motion for Preliminary Injunction, including body, headings, and footnotes, contains 14,967 words as measured by Microsoft Word.
/s/Nicole J. Moss Nicole J. Moss
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CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on the 26th day of June, 2020, I electronically filed the foregoing Response in Opposition to Plaintiffs’ Amended Motion for Preliminary Injunction with the Clerk of the Court using the CM/ECF system, which will send notification of such to all counsel of record in this matter.
/s/ Nicole J. Moss Nicole J. Moss
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Civil Action No. 20-cv-00457
REPUBLICAN COMMITTEES’ MOTION FOR RECONSIDERATION OF COURT’S JUNE 24, 2020 ORDER (DKT. NO. 48) AND ALTERNATIVE MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

Defendants,

Case 1:20-cv-00457-WO-JLW Document 52 Filed 06/26/20 Page 1 of 4

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,
Intervenor-Defendants.
MOTION FOR RECONSIDERATION AND ALTERNATIVE MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF
Pursuant to Fed. R. Civ. P. 54(b), Proposed Intervenor-Defendants the Republican National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), and North Carolina Republican Party (“NCRP”) (collectively the “Republican Committees”) move for reconsideration of the court’s June 24, 2020 order denying the Republican Committees’ motion to intervene. The Republican Committees respectfully request that the motion be granted for the reasons stated in the accompanying memorandum in support of this motion, which is attached as Exhibit A. The Republican Committees submit this motion in accordance with the preliminary injunction briefing scheduled entered by the Court. See Order (June 18, 2020) (Dkt. No. 29).
Alternatively, should the Court deny the motion for reconsideration, the Republican Committees request leave to file a brief as amici curiae in opposition to Plaintiffs’ amended motion for a preliminary injunction. The Republican Committees make this request, which is supported by the accompanying memorandum, in accordance with L.R. 7.5 and the
2
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Court’s June 24, 2020 order, which provides that “[t]he court will consider, at the appropriate time, whether Proposed Intervenors and any other interested non-parties should be allowed to participate by filing timely amicus curiae briefs consistent with Federal Rule of Civil Procedure 1.” Order at 7 (June 24, 2020) (Dkt. No. 48).

Dated: June 26, 2020

Respectfully submitted,
/s/ Bobby R. Burchfield Bobby R. Burchfield (pro hac vice pending) Matthew M. Leland (pro hac vice pending) King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 bburchfield@kslaw.com mleland@kslaw.com
R. Scott Tobin (N.C. Bar No. 34317) Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: stobin@taylorenglish.com
Counsel for the Republican Committees

3 Case 1:20-cv-00457-WO-JLW Document 52 Filed 06/26/20 Page 3 of 4

CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that, on June 26, 2020, I electronically filed the foregoing Motion for Reconsideration and Alternative Motion for Leave to File Amici Curiae Brief and Proposed Orders with the Clerk of the Court using the CM/ECF system.
/s/ Bobby R. Burchfield Bobby R. Burchfield
Case 1:20-cv-00457-WO-JLW Document 52 Filed 06/26/20 Page 4 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,
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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendants,

Civil Action No. 20-cv-00457
[PROPOSED] ORDER GRANTING MOTION FOR RECONSIDERATION

Case 1:20-cv-00457-WO-JLW Document 52-1 Filed 06/26/20 Page 1 of 2

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,
Intervenors,
and
REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, AND REPUBLICAN PARTY OF NORTH CAROLINA,
Proposed Republican Committee Intervenors.

It is hereby ORDERED that Proposed Republican Committee Intervenors’ Motion for Reconsideration of the June 24, 2020 Order denying Proposed Intervenors’ Motion to Intervene is GRANTED.
It is further ORDERED that the Motion to Intervene is hereby GRANTED. SO ORDERED.

DATED: ________________

_______________________ William L. Osteen, Jr. United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,
Plaintiffs,

Civil Action No. 20-cv-00457

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendants,

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

and

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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,
Intervenors.

It is hereby ORDERED that Proposed Republican Committee Intervenors’ Motion for Reconsideration of Order Denying Intervention is hereby DENIED.
It is further ORDERED that the Republican Committees’ Motion for Leave to File Brief as Amici Curiae in response to Plaintiffs’ Amended Motion for a Preliminary Injunction is GRANTED. SO ORDERED.

DATED: ________________

_______________________ William L. Osteen, Jr. United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,
Plaintiffs, vs.
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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN,

Civil Action No. 20-cv-457
BRIEF OF AMICI CURIAE REPUBLICAN COMMITTEES

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 1 of 38

in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
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,
Intervenors. BRIEF OF AMICI CURIAE REPUBLICAN COMMITTEES
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii INTERESTS OF THE AMICI...................................................................................1 INTRODUCTION .....................................................................................................1 BACKGROUND .......................................................................................................2 STANDARD OF REVIEW .......................................................................................5 ARGUMENT .............................................................................................................7 I. Plaintiffs’ Suit Is an Affront to the Constitutional Order................................7 II. The Enactment of H.B. 1169 Moots a Significant Portion of Plaintiffs’
Claims. ...........................................................................................................11 A. Challenges to the Requirements for “Two Witnesses” and
Absentee Ballot Procedures Are Moot................................................12 B. Plaintiffs’ Procedural Due Process Claim is Now Moot.....................14 C. Plaintiffs’ Have No Voting Rights Act Claim. ...................................14 III. Plaintiffs Are Unlikely To Succeed on the Merits of Claims Involving North Carolina’s Administration and Oversight of Voting...........................15 A. North Carolina’s Voting Laws Do Not Unduly Burden the
Plaintiffs’ Right to Vote. .....................................................................15 B. The North Carolina Absentee Voting Laws Do Not Implicate
Plaintiffs’ First Amendment Rights. ...................................................19 C. The Voting Laws Do Not Violate the ADA or Rehabilitation
Act. ......................................................................................................22 1. North Carolina Adopted Reasonable Accommodations for
Voters under the ADA and Rehabilitation Act.............................22
2. North Carolina’s Voting Laws Do Not Have a Disparate Impact on Disabled Voters. ..........................................................25
IV. A Stay is Appropriate to Assess the State’s Election Reforms. ....................26 CONCLUSION ........................................................................................................27
i
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TABLE OF AUTHORITIES
Page(s)
Cases
A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270 (11th Cir. 2018) ..........................................................................23
Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................................................................5
B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152 (2d Cir. 2016) ...............................................................................26
Bostock v. Clayton Cty., Georgia, 2020 WL 3146686 (U.S. June 15, 2020) ......................................................10, 18
Brooks v. Vassar, 462 F.3d 341 (4th Cir. 2006) ..............................................................................15
Burdick v. Takushi, 504 U.S. 428 (1992)..............................................................................................5
Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992)................................................................................................11
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)..............................................................................6, 9, 16, 21
Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997) ..............................................................................26
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)..............................................................................................9
Goldstein v. Sec’y of Commonwealth, 484 Mass. 516 (2020) .........................................................................................10
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ...............................................................................24
J. D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663 (4th Cir. 2019) ..................................................................22, 23, 24 ii
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Key v. Bd. of Voter Registration of Charleston Cty., 622 F.2d 88 (4th Cir. 1980) ................................................................................16
Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018) ............................................................................20
Kremens v. Bartley, 431 U.S. 119 (1977)......................................................................................11, 12
League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298 (S.D. Fla. 2008) ...............................................................20
Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) ..............................................................6, 17, 23, 25
Massachusetts v. Oakes, 491 U.S. 576 (1989)............................................................................................12
MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335 (4th Cir. 2001) ................................................................................5
N.C. Growers’ Ass’n, Inc. v. Solis, No. 1:09CV411, 2011 WL 4708026 (M.D.N.C. 2011)......................................11
N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012) ..............................................................................11
N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020)..................................................................................12, 13
Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) ..........................................................................7, 22
Parson v. Alcorn, 157 F. Supp. 3d 479 (E.D. Va. 2016) ...............................................................5, 6
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001)............................................................................................23
Pope v. Easley, 354 N.C. 544 (2001) .........................................................................................8, 9
iii
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Princeton Univ. v. Schmid, 455 U.S. 100 (1982)............................................................................................12
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006)..............................................................................................19
Seremeth v. Bd. of Cty. Comm’rs Frederick Cty. ¸673 F.3d 333 (4th Cir. 2012) ...............................................................................6
Texas v. Johnson, 491 U.S. 397 (1989)............................................................................................19
Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565 (2d Cir. 2003) ...............................................................................26
U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556 (1986)............................................................................................12
Voting for America v. Steen, 732 F.3d 382 (5th Cir. 2013) ..................................................................19, 20, 21
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)..................................................................................................5
Statutes
H.B. 1169, Bipartisan Elections Act of 2020 (N.C. 2020) ...............................passim
N.C.G.S. 163-226.3..................................................................................................19
N.C.G.S. § 163-42(b) ...........................................................................................4, 13
N.C.G.S. § 163-82.6(d)(1) .........................................................................................3
N.C.G.S. § 163-226.3...........................................................................................3, 19
N.C.G.S. § 163-227.6(c) ............................................................................................4
N.C.G.S. § 163-230.2...............................................................................................19
N.C.G.S. § 163-230.2(a), (e)(1) .................................................................................3
N.C.G.S. § 163-231..................................................................................................15
iv
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N.C.G.S. § 163-231(a) ...............................................................................................3 N.C.G.S § 163-231(b)(1) ...........................................................................................3 Voting Rights Act of 1965 Section 208, 52 U.S.C. § 10508...................................14 Other Authorities 28 C.F.R. § 35.130 ...................................................................................................25 First Amendment..........................................................................................19, 20, 21 U.S. Const. art. I, § 4, cl. 1.........................................................................................1
v
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INTERESTS OF THE AMICI The Republican National Committee (“RNC”), the National Republican Senatorial Committee (“NRSC”), and the National Republican Congressional Committee (“NRCC”) are national political party committees and national political organizations of the Republican Party of the United States, and the North Carolina Republican Party (“NCRP”) is a state political organization of the Republican Party (collectively, “Republican Committees”). The Republican Committees represent interests of Republican voters and candidates for federal, state, and local elected offices. They engage in a wide range of party-building activities including voter registration and turnout programs. Based on their experience with these activities in North Carolina and across the country, the Republican Committees have substantial expertise in voting practices and procedures, and their perspectives these matters will assist the Court.
INTRODUCTION The Constitution requires that state legislatures “shall” regulate the “Times, Places and Manner of holding Elections for Senators and Representatives.” U.S. Const. art. I, § 4, cl. 1. Consistent with its authority, the General Assembly enacted, and Governor Roy Cooper signed into law, H.B. 1169, Session Law 2020-17, to address challenges to voting in the 2020 election that might arise from COVID-19. H.B. 1169 provides much of the precise relief requested in Plaintiffs’ initial
1
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complaint. Dissatisfied with the legislature’s response to the pandemic, Plaintiffs ask
this court to replace the duly enacted legislation with its own policy judgments. Not
only are Plaintiffs’ requests an affront to the constitutional order, they are largely
moot. Plaintiffs are unlikely to prevail on the few claims that might remain.
Accordingly, Amici urge the Court to deny Plaintiffs’ motion, or alternatively, stay
the case to allow the state sufficient time to implement the statute’s protective
measures for voting.
BACKGROUND On June 12, 2020, the North Carolina General Assembly enacted H.B. 1169,
which adopted changes to voting procedures to address the COVID-19 pandemic.
The law:
• Eliminates the requirement that two witnesses or a notary public sign an absentee ballot application (the “Two Witness Requirement”). § 1(a).
• Allows voters to call the State or county board of elections to request a blank absentee ballot request form be sent to the voter via mail, email, or fax. § 5(a).
• Enables voters to request absentee ballots online. § 163-230.3(a). • Allows completed requests for absentee ballots to be returned in
person or by mail, e-mail, or fax. § 2.(a). • Eliminates the precinct residency requirement for poll workers.
§ 1.(b). • Permits “multipartisan team” members to help any voter complete
absentee ballot request forms and absentee ballots. § 1.(c).
2
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• Provides for “a bar code or other unique identifier” to track absentee ballots. § 3.(a)(9).
• Expands the types of identification an individual can present to vote. § 10(a)(2)(d).
• Requires the Department of Health and Human Services (“DHHS”) and the State Board of Elections (“SBE”) to develop guidance to allow multipartisan teams safely to assist vulnerable registered voters, and to submit a report to the government by August 1, 2020. § 2.(b).
• Appropriates $26 million to the SBE “to prevent, prepare for, and respond to the coronavirus pandemic during the 2020 federal election cycle.” § 11.1.(a).
Because the new law resolved many claims in Plaintiffs’ initial complaint,
Plaintiffs were granted leave to file a Second Amended Complaint, Doc. 30, and an
Amended Motion for Preliminary Injunction, Doc. 31 (“Amended Motion”). The
Amended Motion removed several of Plaintiffs’ earlier claims, but they continue to
challenge provisions:
• Requiring voter registration applications to be postmarked at least 25 days before the election. N.C.G.S. § 163-82.6(d)(1); Am. Mot., Doc. 31 at 4; see also Second Am. Compl., Doc. 30 at ¶ 92.
• Restricting requests for absentee ballots by phone. See N.C.G.S. § 163-230.2(a), (e)(1); Am. Mot., Doc. 31 at 4; Second Am. Compl., Doc. 30 at ¶¶ 103–05.
• Limiting who can assist a voter to return an absentee ballot request, and mark and return an absentee ballot. N.C.G.S. § 163226.3(a)(4)–(6), § 163-231(a), § 163-231(b)(1); Am. Mot., Doc. 31 at 4–5; Second Am. Compl., Doc. 30 at ¶ 96.
• Requiring one witnesses or a notary public to witness and sign an absentee ballot application (the “Witness” requirement). N.C.G.S.
3
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§ 163-231(a), as amended by H.B. 1169; Am. Mot., Doc. 31 at 5; Second Am. Compl., Doc. 30 at ¶¶ 99–100.
• Requiring that poll workers reside in the county where they serve on election day. See N.C.G.S. § 163-42(b), as amended by H.B. 1169; Am. Mot., Doc. 31 at 5.
• Requiring uniform hours at early voting locations in every county. See N.C.G.S. § 163-227.6(c); Am. Mot., Doc. 31 at 5; see also Second Am. Compl., Doc. 30 at ¶ 110.
• Preventing individuals from submitting alternative proof of residency such as HAVA documents with their absentee request forms. Am. Mot., Doc. 31 at 4; Second Am. Compl. at ¶ 97.
Plaintiffs also contend the laws are insufficient because they do not provide:
• A “fail-safe” option for mail-in absentee voters if state election officials cannot deliver mail-in ballots on time. Am. Mot., Doc 31 at 7; Second Am. Compl. at ¶ 97.
• “Contactless drop boxes” to minimize the possibility of COVID-19 transmission. Am. Mot., Doc. 31 at 6; Second Am. Compl., Doc. 30 at ¶ 103.
• A procedure to cure defects in absentee ballot request forms or absentee ballots. Am. Mot., Doc. 31 at 7; Second Am. Compl., Doc. 30 at ¶ 104.
• A “centralized way” for voters and advocates to “monitor precinct consolidation.” Am. Mot., Doc. 31 at 7; Second Am. Compl., Doc. 30 at ¶ 113.
• Personal protective equipment (“PPE”) for poll workers. Second Am. Compl. at ¶ 114.
• Use of Federal Write-in Absentee Ballots (“FWAB”) if an absentee ballot does not arrive in time. See Second Am. Compl. ¶ 73.
4
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Plaintiffs ask the Court to declare North Carolina’s voting procedures unlawful, enter an order imposing these additional measures, and supervise Defendants’ compliance with any relief granted. See Second Am. Compl. at 79, 81– 86.
STANDARD OF REVIEW As the Fourth Circuit recognizes, “preliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quotation marks omitted). A plaintiff seeking a preliminary injunction must establish a likelihood of success on the merits, irreparable harm without relief, that the balance of equities tips in plaintiff’s favor, and that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs’ First and Fourteenth Amendment challenges to North Carolina’s voting laws are subject to the “Anderson-Burdick” balancing test set in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). See Parson v. Alcorn, 157 F. Supp. 3d 479, 492 (E.D. Va. 2016). The test requires the Court to (1) “consider the character and magnitude” of any injury to rights protected by the First and Fourteenth Amendments, (2) evaluate the precise interests of the State that justify the burden imposed, and (3) “determine the legitimacy and strength
5
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of each of [the State’s] interests” and “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Lee v. Va. State Bd. of Elections, 843 F.3d 592, 605 (4th Cir. 2016) (citation and quotation marks omitted). The level of scrutiny depends on the burden: “[w]hen the plaintiffs’ rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance[,]” but “when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Alcorn, 157 F. Supp. 3d at 492. Moreover, the state’s interests are measured against the remedy plaintiffs seek. See Crawford, 553 U.S. at 199–200 (under the balancing test, a court must take into account the specific relief sought by the plaintiffs). State election laws are generally not subject to strict scrutiny, “even though voting rights are fundamental under the Constitution.” Lee, 843 F.3d at 605.
To prevail on their claims under the Americans with Disabilities and the Rehabilitation Acts,1 Plaintiffs must prove they (1) have a disability; (2) are qualified to receive the benefits of a public service, program, or activity; and (3) are denied
1 As Plaintiffs recognize (Doc. 10 at 64 n.10), “[c]laims under the ADA’s Title II and the Rehabilitation Act can be combined for analytical purposes because the analysis is ‘substantially the same.’” Seremeth v. Bd. of Cty. Comm’rs Frederick Cty.¸673 F.3d 333, 336 n.1 (4th Cir. 2012) (citation omitted).
6
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those benefits or otherwise discriminated against because of their disabilities. Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494, 502–03 (4th Cir. 2016).
ARGUMENT Plaintiffs’ case for a preliminary injunction fails. First, the authority to regulate elections is vested in the General Assembly, not the courts. Second, H.B. 1169 moots a significant portion (if not all) of Plaintiffs’ claims. Third, Plaintiffs’ remaining challenges, such as to the 25-day post-mark requirement for absentee ballots and uniform voting hours for early voting, are unlikely to prevail on the merits. Finally, Plaintiffs’ request for injunctive relief is premature because H.B. 1169 requires state officials to evaluate the new voting procedures to determine if they are sufficient to address any impediments to voting that might be caused by the pandemic. A preliminary injunction would undermine that evaluation. Accordingly, if the Court were inclined to issue relief, Amici urge the Court to enter a brief stay to allow the State to complete its evaluation, and then determine if H.B. 1169 addresses Plaintiffs’ remaining claims. I. Plaintiffs’ Suit Is an Affront to the Constitutional Order. In June, by a vote of 105-14 in the House and 37-12 in the Senate, strong bipartisan majorities of the legislature passed H.B. 1169, and Governor Cooper signed the bill into law. See Declaration of Matthew Leland (June 26, 2020) (“Leland Decl.”), Exhibit 1 (H.B. 1169, Voting Record). The legislation responds
7
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directly to the possible effect of the pandemic on the election. By passing H.B. 1169, the General Assembly fulfilled its obligation under Article I, Section 4, of the United States Constitution, which mandates that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” It also acted in accord with the North Carolina Constitution, which provides that the legislative power rests “with the people and is exercised thorough the General Assembly, which functions as the arm of the electorate.” Pope v. Easley, 354 N.C. 544, 546 (2001).
Plaintiffs invite this Court to ignore the constitutional order and substitute its judgment for the collective judgment of two duly elected houses of the General Assembly and the duly elected Chief Executive. The issues before this Court were presented to the General Assembly, fully considered, and resolved. Acting swiftly and deliberately, the legislature balanced policy goals, reached compromises, and enacted substantial legislation to address the pandemic. Not every legislator got what he or she wanted, but H.B. 1169 represents an appropriate resolution.2 The
2 See Leland Decl. Ex. 2 (Wilkie, NC House Passes Bipartisan Election Bill To Fund COVID-19 Response, Carolina Public Press (May 29, 2020) (quoting Democratic representative Allison Dahle: “[n]either party got everything they wanted,” but the “compromise bill” was “better for the people of North Carolina.”); Ex. 3 (Pulliman, NC Lawmakers to Discuss Bipartisan Bill on Absentee Voting this Week, 11 Eyewitness News (May 26, 2020) (quoting Democrat Pricey Harrison: it was “an inspiring experience to work across the aisle and across chambers to come up with a bill that’s common sense that also helps voters.”).
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process worked exactly as the United States and North Carolina Constitutions require. See id. at 546, 354 (under the North Carolina Constitution, an act of the General Assembly is “an act of the people and is presumed valid unless it conflicts with the Constitution”) (emphasis and citation omitted). It is not for the judiciary to second guess those judgments. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985) (“unelected federal judiciary” should not decide “which state policies it favors and which ones it dislikes”).
It is true, of course, that if the General Assembly intrudes upon the rights of citizens, the injured citizens often have recourse to the Courts. But, even then, the judiciary’s role is limited. E.g. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203 (2008) (“[w]hen evaluating a neutral, nondiscriminatory regulation of voting procedure, ‘[w]e must keep in mind that ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”) (citations omitted). In this case, Plaintiffs do not ask the Court to declare individual statutes unconstitutional. They do not even claim the statutes were invalid before the recent pandemic or that the General Assembly failed to respond expeditiously. Rather, they complain that the General Assembly did not act in the manner the Plaintiffs believe most appropriate. As relief, they boldly demand that this Court impose a brand-new election scheme to their liking, discarding the public policy balance reached by the General Assembly. It is no exaggeration that Plaintiffs are asking the Court to usurp
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the role vested by the Constitution in the legislature, to rewrite election laws of North Carolina, and then to task itself with administering the implementation of this antidemocratic scheme.
As the United States Supreme Court admonished last week, however, “judges [] possess no special expertise or authority to declare [] what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.” Bostock v. Clayton Cty., Georgia, 2020 WL 3146686, at *17 (U.S. June 15, 2020).
To support their demands, Plaintiffs may point to broad judicial statements from unrelated contexts, or to relatively rare instances in which federal courts have modified or invalidated State election statutes. Almost all those decisions were based on alleged racial discrimination—which is not alleged here. And the Republican Committees are aware of no decision in which a federal court expansively rewrote a State election statute within weeks of the statute’s passage, on the ground that the statute might be insufficient to solve the problem the General Assembly explicitly addressed.3
3 Cf., Goldstein v. Sec’y of Commonwealth, 484 Mass. 516, 532 (2020) (due to legislature’s failure to act, ordering temporary reduction in signature requirements and extension of deadlines for candidate petitions).
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II. The Enactment of H.B. 1169 Moots a Significant Portion of Plaintiffs’ Claims. Federal courts lack authority to rule on moot questions. Church of Scientology
of Cal. v. United States, 506 U.S. 9, 12 (1992). This principle applies when a plaintiff challenges a law that is subsequently amended or repealed. See N.C. Growers’ Ass’n, Inc. v. Solis, No. 1:09CV411, 2011 WL 4708026, at *2–4 (M.D.N.C. Oct. 4, 2011) (Osteen, Jr., J.) (implementation of new rule mooted challenge to previous rule), aff’d sub nom. N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012).
The Supreme Court’s decision in Kremens v. Bartley, 431 U.S. 119 (1977), is illustrative. The district court found unconstitutional portions of a statute governing voluntary commitment to mental health institutions. Pennsylvania “enacted a new statute substantially altering its voluntary admission procedures” which “completely repeal[ed] the provisions” the district court found unconstitutional. Id. at 126. Emphasizing that “[c]onstitutional adjudication [is] a matter of ‘great gravity and delicacy,’” id. at 127–28 (quoting Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring)), the Supreme Court held the new statute “eradicated” the plaintiffs’ challenges to the previous law, and “clearly moot[ed]” the plaintiffs’
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claims.4 Id. at 129. Here, H.B. 1169 renders most of Plaintiffs’ challenges to the state’s voting procedures moot. For those not expressly mooted, H.B. 1169 expresses a legislative judgment that Plaintiffs’ proposals are unsound.
A. Challenges to the Requirements for “Two Witnesses” and Absentee Ballot Procedures Are Moot.
Of all Plaintiffs’ original claims, the Two Witness requirement and the inability to request absentee ballots by phone or online were at the forefront. For instance, Plaintiff Clark alleges he is house-bound because he fears contracting COVID-19 and already applied for his ballot. Second Am. Compl., Doc. 30 at ¶ 17. He alleges his “wife could serve as one witness for his mail-in absentee ballot,” but he could not safely obtain a second witness because of health risks and did “not know how he can safely cast a ballot by mail.” Doc. 27-2 at ¶ 17. Similarly, Plaintiff Cates alleges she never voted by mail but if she could submit an absentee ballot request online or by phone, she would do so. Second Am. Compl., Doc. 30 at ¶ 18. Cates has only one person to witness her ballot. Doc. 27-2 at ¶ 18. H.B. 1169’s elimination of the Two Witness requirement and procedure for requesting absentee
4 See also, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (amendment mooted challenge to old law); Massachusetts v. Oakes, 491 U.S. 576, 578, 582–83 (1989) (amendment mooted First Amendment overbreadth challenge); U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556, 557–60 (1986) (amendment mooted challenge); Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (amendment to regulation mooted challenge to earlier regulation).
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ballots by phone or online gave these Plaintiffs the relief they seek. The same is true for other provisions of the election code challenged by Plaintiffs. Compare N.C.G.S. § 163-42(b) (requirement that a majority of poll workers reside in the precinct where they serve on election day), with H.B. 1169 Section 1.(b) (eliminating this requirement); compare Second Am. Compl. ¶ 104 (seeking procedure for curing defects in absentee ballots), with H.B. 1169 at Section 3.(a)(b)(9) (requiring a “bar code or other unique identifier” to allow county board of elections and voter to track ballot); compare Second Am. Compl. ¶¶ 103, 114 (seeking provision of PPE at voting sites and contactless drop boxes for absentee ballots), with H.B. 1169 Section 11.1.(a) (appropriating over $26 million to SBE “to prevent, prepare for, and respond to the coronavirus pandemic”); see also Second Am. Compl., Doc. 30 at ¶ 62 (alleging that under H.B. 1169 multipartisan teams may assist voters with completing and delivering an absentee ballot request, but speculating there may not be a sufficient number of team members).
A statutory change giving a party the “precise relief” requested moots claims for declaratory and injunctive relief. N.Y. State Rifle & Pistol Ass’n, Inc., 140 S. Ct. at 1526. Because H.B. 1169 provides Plaintiffs with many of the precise measures they seek, their claims are moot.
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B. Plaintiffs’ Procedural Due Process Claim is Moot. Plaintiffs allege state law provides no remedy to “cure deficiencies” with absentee ballot request forms and absentee ballots. But H.B. 1169 requires that a “bar code or other unique identifier” accompany each absentee ballot return envelope so the county board of elections and voter can track the ballot following the return of the voted ballot to the county board. H.B. 1169 Section 3.(a)(9). The new law ensures voters can track their absentee ballots and monitor them for voting anomalies. H.B. 1169 also allows voters to request ballots online. If their applications are deficient, the portal would likely not accept them, and Plaintiffs will be able to correct the request before re-submitting. This process moots Plaintiffs’ procedural due process claim.
C. Plaintiffs’ Have No Voting Rights Act Claim. Plaintiffs also allege violations of Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508 (“Section 208”), which requires that individuals with blindness, disability, or inability to read or write be permitted to receive assistance with voting. Because of H.B. 1169, that claim is moot, too. Plaintiffs contend individuals covered by Section 208, including Plaintiff Hutchins, require assistance submitting a request for, marking, completing, and delivering an absentee ballot. See Pls’ PI Br., Doc. 10 at 71. H.B. 1169 specifically addresses Plaintiffs’ concerns. First, H.B. 1169 provides that individuals of a
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“multipartisan team” may assist a voter in completing a request for an absentee ballot or in delivering the completed request. H.B. 1169 § 1(c). Second, a member of a multipartisan team may assist with delivery of the completed absentee ballot. H.B. 1169 §2.(a). Third, DHHS and SBE will develop guidance to “safely allow multipartisan teams to assist registered voters within hospitals, clinics, nursing homes, assisted living or other congregate living situations” in the 2020 election. H.B. 1169 § 2.(b). Finally, N.C.G.S. § 163-231 provides that, in addition to completing the ballot herself or himself, a voter may “cause [an absentee ballot] to be marked . . . in the voter’s presence according to the voter’s instruction.”
In these ways, H.B. 1169 addresses Plaintiffs’ concerns, and thus moots their claims. See Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006). III. Plaintiffs Are Unlikely To Succeed on the Merits of Claims Involving
North Carolina’s Administration of Voting. A. North Carolina’s Voting Laws Do Not Unduly Burden the Right to
Vote. The Second Amended Complaint asserts violations of the First and Fourteenth Amendments based on the following provisions: (1) the requirement that voters register to vote at least 25 days before the election; and (2) the regulation allowing only a voter’s near relative, verifiable legal guardian, or multipartisan team member to help complete and deliver an absentee ballot. See Second Am. Compl., Doc. 30 at ¶¶ 88–115. Plaintiffs also challenge the General Assembly’s failure to adopt
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contactless dropboxes for voting and a “fail-safe” option for mail-in absentee voters if state election officials cannot successfully deliver mail-in ballots on time. E.g., Pls’ PI Br., Doc. 10 at 17, 21–22, 36–47.
Plaintiffs’ claims fail because North Carolina’s voting regulations meet the Anderson-Burdick test. The burden to the Plaintiffs from the regulations, if any, is minimal, they are applied neutrally, and they concern legitimate state interests, including protecting the integrity and reliability of the electoral process. See, e.g., Crawford, 553 U.S. at 191–96 (recognizing states’ legitimate interests in protecting the integrity and reliability of the electoral process in the context of an Equal Protection challenge to a voter identification requirement).
First, it is not unduly burdensome to voters—and is indeed common—to require registration by mail, through state agencies, or online through the Department of Motor Vehicles at least 25 days before an election. At least 13 other states impose registration cutoffs of at least 25 days before an election. Leland Decl. Ex. 4 (Voter Registration Deadlines).5 North Carolina has “valid and sufficient interests” in imposing registration deadlines so that it can prepare adequate voter records and protect its electoral processes from fraud. See Key v. Bd. of Voter
5 State cutoffs range from 25 days (e.g., New York) to 30 days (e.g., Tennessee).
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Registration of Charleston Cty., 622 F.2d 88, 90 (4th Cir. 1980) (South Carolina’s 30-day pre-registration requirement did not violate constitutional right).
Second, there is, at most, a minimal burden when allowing only a voter’s near relative, a verifiable legal guardian, or a multipartisan assistance team member to help complete and deliver an absentee ballot. See H.B. 1196, Sections 1.(c), 2.(a). And to address the needs of voters who are more vulnerable, H.B. 1169 requires the DHHS and the SBE to develop guidance on how the multipartisan teams can help people in “congregate living situations,” such as nursing homes, to vote in the 2020 election. H.B. 1169, Section 2.(b).
Third, North Carolina has a valid interest in preventing voter fraud. Lee, 843 F.3d at 606 (finding that a voter identification requirement did not unduly burden the right to vote and that Virginia had a valid interest in preventing voter fraud which justified any burden imposed by the law). Indeed, measures limiting who may collect absentee ballots are widely recognized as appropriate and necessary. The bipartisan commission led by former President Jimmy Carter and former Secretary of State James Baker explicitly recommended laws restricting ballot collection by candidates or party workers. See Leland Decl. Ex. 5 (Commission on Federal Election Reform, Building Confidence in U.S. Elections, § 5.2.1 (Sept. 2005) (“the Carter–Baker Report”).
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Finally, Plaintiffs’ demand for contactless dropboxes and federal write-in ballots or other “fail-safe” options for mail-in absentee voters who do not receive their mail-in ballots on time also fails. E.g., Pls’ PI Br., Doc. 10 at 17, 21–22, 36– 47. To begin, the time period within which to request absentee ballots—by 5 p.m. on the Tuesday before the date of the election—is entirely sufficient. And, with over four months before the November election, Plaintiffs have specified no reason why they cannot request their absentee ballots sufficiently in advance to avoid delivery issues. Indeed, Plaintiff Clark has already done so. Further, H.B. 1169 provides options (phone, email, and fax) for requesting mail-in ballots that will expedite the time between request and delivery. And finally, if a voter does not receive the requested ballot in time, the voter always has the option to vote in person.
To the degree the Court has any remaining doubts about the fairness of the ballot delivery process, it can stay this aspect of the case to see how State election officials address it. H.B. 1169 provides funds to address COVID-19, and North Carolina has the discretion to allocate the funds for preventative measures. H.B. 1169, Section 11.1.(a) (appropriating over $26 million to the SBE to “to prevent, prepare for, and respond to the coronavirus pandemic during the 2020 federal election cycle”); Bostock, 2020 WL 3146686, at *17 (noting that “judicial humility” requires courts to “refrain from adding to statutes”). In any event, Plaintiffs have not made the case for a mandatory preliminary injunction.
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B. The North Carolina Absentee Voting Laws Do Not Implicate Plaintiffs’ First Amendment Rights.
The organizational Plaintiffs and Plaintiff Schaffer are also unlikely to prevail on their First Amendment claims. Plaintiffs allege that SB 683 violates their First Amendment rights to free speech and association by impeding their ability to assist voters with absentee ballot request forms. See Pls’ PI Br., Doc. 10 at 55. For the 2020 election, the absentee ballot laws provide that absentee ballot request forms may be delivered by (1) the voter, (2) the voter’s near relative or verifiable legal guardian, or (3) a member of a multipartisan team trained and authorized by the county board of elections pursuant to N.C.G.S. 163-226.3. See H.B. 1169; N.C.G.S. § 163-230.2. The absentee ballot laws also allow a voter’s near relative, legal guardian, or individual working as part of a multipartisan team pursuant to G.S. 163226.3, to assist a voter in preparing a request for an absentee ballot. H.B. 1169; N.C.G.S. § 163-226.3.
The First Amendment forbids only the abridgment of “speech,” and conduct “sufficiently imbued with elements of communication.” Texas v. Johnson, 491 U.S. 397, 404 (1989); see also ex Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (citing Texas v. Johnson and noting that the Court has “extended First Amendment protection only to conduct that is inherently expressive”). If an election law implicates these interests, then the Court must apply the Anderson-Burdick test. See Voting for America v. Steen, 732 F.3d 382, 393 (5th
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Cir. 2013) (Anderson-Burdick balancing test applies if the challenged law implicates First Amendment interests).
Plaintiffs’ claims fail because the absentee ballot laws do not implicate First Amendment rights. Courts have held that submitting completed voter registration forms or completed ballots on behalf of another person is not “speech” or “sufficiently imbued with elements of communication” to qualify for First Amendment freedom of speech protection. Id. at 392 (“[T]here is nothing ‘inherently expressive’ about receiving a person’s completed application and being charged with getting that application to the proper place.”) (citation and quotation marks omitted); League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298, 1319 (S.D. Fla. 2008) (same); Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018) (same). The acts of completing an absentee ballot on behalf of another voter (pursuant to that voter’s desires) and submitting the ballot requests are not materially different from the acts of submitting completed voter registration forms or completed ballots. As the Fifth Circuit concluded in rejecting an analogous claim, “if actually registering citizens to vote is necessary to ‘express’ the canvasser’s belief in the importance of voting, then [plaintiffs] essentially seek a ‘First Amendment right not just to speak out or engage in ‘expressive conduct’ but also to succeed in their ultimate goal regardless of any other considerations.’” Steen, 732 F.3d at 391.
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“[O]nly the voter decides to ‘speak’ by registering,” or, in this case, submitting a request for an absentee ballot. Id. at 390.
Even if the North Carolina absentee ballot laws did implicate Plaintiffs’ First Amendment interests, the laws pass the Anderson-Burdick balancing test. See Steen, 732 F.3d at 391 (laws limiting who can handle a completed voter register application pass the Anderson-Burdick balancing test). As the Supreme Court held in Crawford, states have legitimate interests in enacting measures to prevent fraud. 553 U.S. at 194–95 (upholding voter identification requirement against an Equal Protection challenge). Indeed, measures limiting who may collect absentee ballots are widely recognized as appropriate and necessary to prevent fraud, as evidenced by the conclusions of the Carter-Baker commission on election reform, which recommended states enact similar laws to prevent persons, such as employees of the organizational plaintiffs, from handling ballots. See Leland Decl. Ex. 5 (Carter– Baker Report, § 5.2.1).
By contrast, any burden to Plaintiffs is minimal. The organizational Plaintiffs and Plaintiff Schafer remain free to encourage voters to request an absentee ballot and to instruct them how to properly complete the necessary application. And Plaintiffs may also be eligible to become part of the “multipartisan team” that may assist voters with completing absentee ballot requests. See H.B. 1169.
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C. The Voting Laws Do Not Violate the ADA or Rehabilitation Act. Plaintiffs argue that North Carolina’s witness requirement and restrictions on assistance in completing absentee ballot request forms and ballots violate the ADA and Rehabilitation Act because they fail to accommodate Plaintiffs’ disabilities. Pls’ PI Br., Doc. 10 at 62–63, 68.
1. North Carolina Adopted Reasonable Accommodations for Voters under the ADA and Rehabilitation Act.
To prevail on their failure-to-accommodate claims, Plaintiffs must prove they (1) have a disability; (2) are qualified to receive benefits of a public service, program, or activity; and (3) are being denied those benefits or otherwise discriminated against because of their disabilities. Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494, 502– 03 (4th Cir. 2016). Plaintiffs cannot satisfy the third requirement, and, in turn, are not entitled to a preliminary injunction.
To show discrimination, Plaintiffs bear the burden of demonstrating that North Carolina has “fail[ed] to make reasonable modifications in policies, practices, or procedures” that implicate Plaintiffs’ absentee voting rights, “when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” J. D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 671 (4th Cir. 2019) (quoting 42 U.S.C. § 12182(b)(2)(A)(ii)). The statute therefore requires Plaintiffs to show Defendants failed to make accommodations that are both necessary and reasonable
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in light of Plaintiffs’ alleged disabilities. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001). Neither requirement is satisfied here.
First, H.B. 1169 resolves Plaintiffs’ concerns about absentee voting. Section 1.(a) reduces the witness requirement for absentee ballots, reconciling Plaintiffs’ limited “ability to have contact with others during this pandemic,” Pls’ PI Br., Doc. 10 at 63, with the public’s right to have confidence in the integrity of the election results. See Lee, 843 F.3d at 606. Furthermore, H.B. 1169 accommodates nursing home residents by requiring DHHS and SBE to “develop guidance to safely allow multipartisan teams to assist registered voters” within nursing homes and assisted living or other congregate living situations. H.B. 1169 § 2.(b).
Plaintiffs claim the recent legislation is “inadequate” because more could be done to address their concerns, Second Am. Compl., Doc. 30 at ¶ 7, but this argument falls far short of establishing that Plaintiffs’ proposed modifications are “necessary.” Under the ADA and RA, it is not a requirement to “eliminate all discomfort or difficulty.” A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1296 (11th Cir. 2018). Rather, “[f]acilities need make only reasonable accommodations that are ‘necessary.’” Id. When determining the necessity of a proposed accommodation, the Fourth Circuit “requires an individualized inquiry into the plaintiff’s capacity.” J.D. by Doherty, 925 F.3d at 673. Under that approach, when a defendant has already implemented disability accommodations, “a plaintiff
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may still be entitled to something more if he can show that the accommodation does not account sufficiently for his disability.” Id.
Plaintiffs cannot make this showing. North Carolina reduced the two-witness requirement and will provide specialized assistance for vulnerable registered voters who wish to submit absentee ballots. See H.B. 1169 §§ 1.(a), 2.(b). Further accommodations are warranted only if absentee voting remains “beyond the capacity of plaintiffs,” a standard Plaintiffs cannot satisfy because H.B. 1169 provides for absentee voting assistance for registered voters within nursing homes and other congregate living facilities and reduces the witness requirement sufficiently to account for Plaintiffs’ desire to limit social interaction. See id. (citing Argenyi v. Creighton Univ., 703 F.3d 441, 450 (8th Cir. 2013); A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1296 (11th Cir. 2018)).
Second, Plaintiffs cannot show their proposed changes to the law are “reasonable” under the ADA or RA. The ADA requires “reasonable” accommodations for disabilities, a standard satisfied only if the Plaintiffs’ proposed modification is “reasonable on its face, i.e., ordinarily or in the run of cases.” J.D. by Doherty, 925 F.3d at 673. But the North Carolina General Assembly already implemented several measures to address Plaintiffs’ safety concerns, so there is “no need for injunctive relief” when plaintiffs are “already being reasonably accommodated.” Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003).
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And, as shown (p. 16 above), North Carolina’s approach is in line with many other states.
Even if Plaintiffs showed their proposed accommodations were prima facie reasonable, those modifications would “fundamentally alter” the nature of North Carolina’s elections because they would eliminate the administration and enforcement of the witness requirement and restrictions on those who can provide absentee ballot assistance. See 28 C.F.R. § 35.130 (requiring public entities to make “reasonable” modifications “necessary to avoid discrimination on the basis of disability, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the service, program, or activity.” (emphasis added)). States have “valid interests in preventing voter fraud,” along with “an independent interest in protecting voter confidence in the integrity of [their] elections.” Lee, 843 F.3d at 607 (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194-97 (2008)). The witness requirement and ballot assistance restrictions are measures approved by the General Assembly to preserve the integrity of North Carolina’s elections.
2. North Carolina’s Voting Laws Do Not Have a Disparate Impact on Disabled Voters.
Plaintiffs have not provided evidence showing the challenged voting laws disproportionately burden disabled voters, and their disparate impact claims fail for that reason. Establishing a prima facie ADA or RA violation under a disparate
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impact theory requires a plaintiff to “demonstrate (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016) (internal quotation marks omitted). Plaintiffs failed to identify any evidence that the witness requirement or ballot assistance restrictions have a “significantly adverse or disproportionate impact” on disabled voters, much less the statistical evidence courts routinely expect. See Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 575– 76 (2d Cir. 2003). Instead, Plaintiffs assert that “Defendants’ policies have a disparate impact on vulnerable voters like the ADA/RA Plaintiffs”—a paradigmatic example of the kind of “inference of discriminatory impact” that other circuits have rejected. See id. at 575; Gamble v. City of Escondido, 104 F.3d 300, 306 (9th Cir. 1997). The same result is appropriate here. IV. A Stay is Appropriate to Assess the State’s Election Reforms.
Plaintiffs have not cleared the high bar for entry of a preliminary injunction, and Amici urge the Court to deny any relief. In the alternative, if the Court has doubts about the sufficiency of the new procedures, Amici urge the Court to stay the action until the Board and HHS fulfill their legislative obligation to “develop guidance to safely allow multipartisan teams to assist registered voters within hospitals, clinics, nursing homes, assisted living or other congregate living situations
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in the 2020 elections during the COVID-19 pandemic in accordance with law” by
August 1, 2020. H.B. 1169 § 2.(b). As it stands, Plaintiffs’ Motion assumes that
North Carolina will not take appropriate action to modify its election procedures to
account for the pandemic. H.B. 1169 has already proven that assumption false.
Before the Court takes the extraordinary step of imposing new requirements on the
State, the public interest supports a stay of this litigation pending additional guidance
from the Board and HHS.
CONCLUSION For the foregoing reasons, Amici respectfully request that this Court deny
Plaintiffs’ motion or, alternatively, stay this case until further action from the Board
and HHS.
Respectfully submitted this 26th day of June, 2020.
Respectfully submitted,
/s/ Bobby R. Burchfield Bobby R. Burchfield Matthew M. Leland King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 Email: bburchfield@kslaw.com Email: mleland@kslaw.com
R. Scott Tobin 27
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North Carolina Bar No. 34317 Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: stobin@taylorenglish.com Counsel for the Republican Committees
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STATEMENT PURSUANT TO L.R. 7.5(d) Amici represent that (1) no party’s counsel authored the brief in whole or in part, (2) no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief, and (3) no person—other than amicus, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief. This the 26th day of June, 2020.
/s/ Bobby R. Burchfield Bobby R. Burchfield
1
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CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for this Amici Curiae Brief is 6242 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of Microsoft Word, which was used to prepare the brief.
/s/ Bobby Burchfield Bobby Burchfield
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CERTIFICATE OF SERVICE I hereby certify that on this date, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which automatically sends e-mail notification of such filing to any attorneys of record. This 26th day of June, 2020.
/s/ Bobby Burchfield Bobby Burchfield
Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 38 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,
Plaintiffs, vs.
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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendants,

Civil Action No. 20-cv-457

and

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 1 of 50

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,
Intervenors.

DECLARATION OF MATTHEW M. LELAND

I, Matthew M. Leland, state the following based on my personal knowledge:

1. I am over 18 years of age and competent to make this Declaration.

2. I am counsel for amici curiae Republican Committees in the above-captioned case.

3. I have reviewed the Exhibits in support of the Brief of Amici Curiae Republican

Committees.

4. Exhibit 1 is a true and correct copy of the North Carolina General Assembly voting

record

for

HB

1169

(2019-20),

which

is

available

at

https://www.ncleg.gov/BillLookUp/2019/H1169.

5. Exhibit 2 is a true and correct copy of the following article: Jordan Wilkie, NC

House Passes Bipartisan Election Bill To Fund COVID-19 Response, Carolina Public Press (May

29, 2020), which is available at https://carolinapublicpress.org/30559/nc-house-passes-bipartisan-

election-bill-to-fund-covid-19-response/.

6. Exhibit 3 is a true and correct copy of the following article: Tim Pulliman, NC

Lawmakers to Discuss Bipartisan Bill on Absentee Voting this Week, 11 Eyewitness News (May

26, 2020), which is available at https://abc11.com/hb1169-absentee-voting-state-elections-covid-

19-response/6213140/.

2 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 2 of 50

7. Exhibit 4 is a true and correct copy of the following webpage: Voter Registration Deadlines (last accessed June 22, 2020), which is available at https://www.vote.org/voterregistration-deadlines/.
8. Exhibit 5 is a true and correct copy of excerpts of the report by the Commission on Federal Election Reform: Building Confidence in U.S. Elections (Sept. 2005), which is available at http://www.lb7.uscourts. Gov/documents/15-324URL1savedon08-04-2016.pdf
I declare under penalty of perjury that the foregoing is true and correct. /s/ Matthew M. Leland Matthew M. Leland
3 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 3 of 50

Exhibit 1
Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 4 of 50

6/25/2020

House Bill 1169 / SL 2020-17 (2019-2020 Session) - North Carolina General Assembly

 H1168

Bipartisan Elections Act of 2020. 2019-2020 Session

EDITION
Filed Edition 1 Edition 2 Edition 3 Edition 4 Edition 5 Edition 6 Rati ed SL 2020-17

VIEW BILL DIGEST VIEW AVAILABLE BILL SUMMARIES
FISCAL NOTE

DATE
6/11/2020 2:49 p.m. 6/11/2020 12:29 p.m.

SUBJECT
M11 Concur Third Reading

House Bill 1169 / SL 2020-17

H1170 

RCS#
[H]-959 [S]-727

Last Action: Ch. SL 2020-17 on 6/12/2020

Sponsors:

Grange; Dahle; D. Hall; Harrison (Primary) Autry; Ball; Batch; Brewer; Carney; Clark; Clemmons; Dixon; Dobson; Fisher; Fraley; Gailliard; Harris; Humphrey; Hunt; Insko; Jackson; John; P. Jones; Lambeth; Lewis; Lofton; Logan; Majeed; Martin; McElraft; Meyer; Pierce; Reives; Russell; K. Smith; Stevens; Szoka; B. Turner; von Haefen; White; Zachary

Attributes: Public; Contains Appropriations; Contains Local Appropriations; Text has changed

Counties: No counties speci cally cited

Statutes:

163, 20 (Chapters); 143C-1-2, 163-132.5G, 163-166.11, 163-166.16, 163182.2, 163-226.3, 163-229, 163-230.1, 163-230.2, 163-230.3, 163-231, 163-237, 163-27.1, 163-41, 163-42, 20-37.7 (Sections)

Keywords:

APPROPRIATIONS, BOARDS, BUDGETING, COUNTIES, DHHS, DISASTERS & EMERGENCIES, DISEASES & HEALTH DISORDERS, ELECTIONS, ELECTIONS BOARDS, ELECTIONS, STATE BOARD OF, ID SYSTEMS, INFORMATION TECHNOLOGY, INTERNET, LOCAL GOVERNMENT, POLITICAL PARTIES, PRESENTED, PUBLIC, PUBLIC HEALTH, PUBLIC OFFICIALS, RATIFIED, REPORTS, SESSION LAWS,

LATEST 2 VOTES

AYE

NO

N/V

105

14

0

37

12

0

EXC.ABS.
1 1

EXC.VOTE
0 0

TOTAL
119 49

RESULT
PASS PASS


DATE 
6/12/2020 6/12/2020 6/11/2020 6/11/2020 6/11/2020 6/11/2020 6/11/2020 6/11/2020 6/11/2020
6/11/2020 6/11/2020 6/11/2020 6/10/2020 6/10/2020 6/10/2020 6/10/2020 6/10/2020 6/10/2020 6/9/2020 6/9/2020 6/9/2020 6/9/2020 6/2/2020

CHAMBER
House House House House House
Senate Senate Senate Senate Senate Senate Senate Senate Senate Senate Senate Senate Senate Senate

HISTORY
ACTION
Ch. SL 2020-17 Signed by Gov. 6/12/2020 Pres. To Gov. 6/11/2020 Rati ed Ordered Enrolled Concurred In S Com Sub Added to Calendar Cal Pursuant 36(b) Special Message Received For Concurrence in S Com Sub Special Message Sent To House Passed 3rd Reading Amend Tabled A6 Passed 2nd Reading Amendment Withdrawn A5 Amend Tabled A4 Amend Tabled A3 Amend Tabled A2 Amend Tabled A1 Reptd Fav Re-ref Com On Rules and Operations of the Senate Com Substitute Adopted Reptd Fav Com Substitute Re-ref Com On Appropriations/Base Budget

DOCUMENTS
A6: ABK-69-V-4 A5: Scanned Document A4: Scanned Document A3: ABK-67-V-6 A2: Scanned Document A1: ALU-56-V-4
CS: PCS10849-ML-23

VOTES
PASS: 105-14
PASS: 37-12 PASS: 29-20 PASS: 35-12 PASS: 27-21 PASS: 27-21 PASS: 27-21 PASS: 27-21

https://www.ncleg.gov/BillLookUp/2019/H1169

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6/25/2020
6/2/2020 6/2/2020 6/1/2020
6/1/2020 5/28/2020 5/28/2020 5/28/2020 5/28/2020 5/28/2020 5/28/2020 5/28/2020 5/28/2020 5/27/2020 5/27/2020 5/27/2020 5/27/2020
5/27/2020 5/22/2020
5/22/2020 5/22/2020

House Bill 1169 / SL 2020-17 (2019-2020 Session) - North Carolina General Assembly

Senate Senate Senate
Senate Senate Senate Senate House House House House House House House House House
House House
House House

Com Substitute Adopted

Reptd Fav Com Substitute

CS: PCS30592-BVa-1

Re-ref to Redistricting and Elections. If fav, re-ref to Appropriations/Base Budget. If fav, re-ref to Rules and Operations of the Senate

Withdrawn From Com

Ref To Com On Rules and Operations of the Senate

Passed 1st Reading

Special Message Received From House

Special Message Sent To Senate

Ordered Engrossed

Passed 3rd Reading

Passed 2nd Reading

Amend Adopted A1

A1: Scanned Document

Placed On Cal For 05/28/2020

Cal Pursuant Rule 36(b)

Reptd Fav Com Sub 2

CS: PCS10834-ST-75

Re-ref Com On Rules, Calendar, and Operations of the House

Reptd Fav Com Substitute

CS: PCS30587-ST-74

Ref to the Com on Elections and Ethics Law, if favorable, Rules, Calendar, and Operations of the House

Passed 1st Reading

Filed

DRAFT: DRH20008-BKa-24A

PASS: 116-3

https://www.ncleg.gov/BillLookUp/2019/H1169

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Exhibit 2
Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 7 of 50

NC House passes bipartisan election bill to fund COVID-19 response

carolinapublicpress.org/30559/nc-house-passes-bipartisan-election-bill-to-fund-covid-19-response

Jordan Wilkie

May 29, 2020

Every booth is occupied with 2020 primary election voters just before 7 a.m. March 3 at the American Legion 7 polling place in Durham County. That situation would be problematic with the ongoing
pandemic, and adjustments to avoid crowding and answer the demand for more absentee ballots will require expenditures in each North Carolina county. A bipartisan election bill to address that passed the N.C. House on Thursday and will be taken up by the state Senate. Jake Axelbank / Carolina Public Press
The outbreak of COVID-19 is making it more difficult and more expensive to run elections.
In March, state elections officials asked the General Assembly for relief, both in the form of funding and some tweaked laws to make running elections during the pandemic easier.
The N.C. House passed a bipartisan election bill Thursday afternoon that would provide the state with money needed to access much larger federal funds. The bill would also change state law to both make it easier to vote by mail and for election officials to staff
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their polling places.
[The latest: North Carolina coronavirus daily updates]
However, the bill does not provide the full scope of relief sought by the state Board of Elections, county elections directors or democracy watchers.
“Neither party got everything they wanted,” said Rep. Allison Dahle, D-Wake, who was one of the bill’s sponsors.
“We worked together to find solutions that both sides of the aisle were comfortable with. Is it perfect? No. Is it what we dreamed of? No. Is it better for the people of North Carolina? Yes.”
Get independent, in-depth and investigative journalism in your inbox
Sign up for free and never miss a CPP news report, investigation, conversation or event.
House Bill 1169 passed with an overwhelming majority, 116-3, even as some Democrats grumbled that it did not make voting by mail easy enough and that the bill included unnecessary provisions. The bill will now be sent to the state Senate, where it is expected to be taken up quickly.
In an April 22 letter to the General Assembly, state Board of Elections Executive Director Karen Brinson Bell said elections officials needed the money by June 15 at the latest to make all the necessary purchases for the November election, not to mention the second primary election in June. The second primary affects the southwestern part of the state in Congressional District 11, plus a local election in Columbus County. She asked the legislature to act during the special session that began April 28.
Dahle said lawmakers have been working on this bill for a month and a half. To speed up the process, she said, if there were any requests that members of the House or Senate were not comfortable with, they just took that piece out.
The state really needed the federal money, Dahle said. To get those funds, a combined $22.7 million from the Help America Vote Act and the CARES Act, the state needs to provide almost $4.5 million in matching funds.
The money will be used to make security improvements for the election and to cover COVID-19-related costs, such as printing and postage for a predicted spike in by-mail ballot demand and personal protective equipment at the polls.
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An investigation by the NC Watchdog Reporting Network, of which CPP is a member, shows that counties would be unlikely to afford the changes to elections brought on by COVID-19 without this additional support.
A compromise of 120 lawmakers
When sponsors of this bill, Reps. Holly Grange, R-New Hanover, and Dahle, spoke about the bill, they stressed its bipartisan nature.
“This is a compromise bill of 100, really 120 people,” Dahl said. “Even though there were only four (sponsors), we still had our caucuses that we talked to and went back and forth with.”
Beyond the state’s partial match required to access federal funding, the election bill would make several temporary changes that would expire at the end of the year and a few permanent changes.
The House bill would temporarily lower the witness requirement on absentee by-mail ballots from two adult witnesses to one. Since the majority of households in North Carolina have fewer than three adults — one to vote, two to witness — the current requirement was seen as a burden during a pandemic.
At the same time, the bill would make it easier for voters to request absentee by-mail ballots. If this bill is passed by the Senate and signed into law, ballot requests could be submitted by email or fax, in addition to by mail or in person. The state has allocated $424,000 for the state to create an online portal for absentee ballot requests.
Under the bill, voters would also be able to track their ballots by way of a bar code or unique identifier associated with the ballot, both when their county’s board of elections mails it out and when they mail ballots back.
County boards of elections would have increased flexibility in hiring poll workers. Until the end of the year, only one poll worker per precinct would need to be from that precinct, while others could be recruited from across the county.
Since poll workers in North Carolina are, on average, over 65 years old and are therefore more vulnerable to serious illness or death if they contract COVID-19, counties are expecting to struggle to retain and recruit poll workers.
The bill also clarifies how multipartisan assistance teams operate during a pandemic. These teams usually assist voters in residential care homes, but there is currently an executive order banning visitors to these centers to limit the spread of COVID-19 to vulnerable populations. Under the bill, the state Board of Elections would work with the
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Department of Health and Human Services to create a plan whereby the teams can work safely “within hospitals, clinics, nursing homes, assisted living or other congregate living situations.”
Requests that didn’t make the election bill
In a March 26 letter, Brinson Bell gave the General Assembly a list of requests to help run the June second primary in Western North Carolina and the November elections during a pandemic.
The election bill failed to adopt a few of the requests, such as paying for return postage for absentee ballots.
Both Democratic sponsors of the bill, Dahle and Rep. Pricey Harrison, D-Guilford, said they requested this, but Republicans in both the House and Senate balked at the cost.
By turning Election Day into a state holiday, state and county employees could work the polls, Brinson Bell said in her letter. That request was not taken up, nor was increased pay for poll workers or changes to one-stop voting site and hours requirements.
Rep. Marcia Morey, D-Durham, introduced another bill with the Democrats’ wish list of changes for the November election.
One item on her wish list was to expand curbside voting, whereby voters can remain in their cars at a polling place and a poll worker will deliver, retrieve and submit the ballot for them.
The idea is that voters concerned about contracting COVID-19 at a polling place could vote from their cars, as people with physical limitations are currently able to do.
“We encourage anyone concerned about contracting coronavirus to vote by mail in 2020,” said Pat Gannon, spokesperson for the state Board of Elections, in an email, in which he also described several measures, such as social distancing and providing masks, that will be used in precincts to keep voters healthy.
Pro-democracy advocacy groups had other requests to make the voting process run smoothly that were not picked up in the legislation.
Voter registration has dipped significantly, Democracy NC’s executive director, Tomas Lopez, said. He would have liked to see an extension in the deadline for voter registrations.
Voters also frequently and unknowingly make mistakes on the ballot envelopes, forcing boards of elections to discard those ballots, he said.
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“There’s not a process right now for people to cure absentee ballots that have issues,” Lopez said.
That means that, as in previous elections, a substantial percentage of voters who vote by mail would have their ballots rejected and potentially not know it until after the election. In a year when the state Board of Elections projects that vote-by-mail ballots could balloon from 5% of voters to 40%, that could result in the state not counting of thousands of ballots.
Other bills can be passed that could address some of these concerns, though time is running short for the state and county boards of elections to put more changes into place before the November election.
Election bill tries to solve problems that don’t exist
Some measures of the election bill solve problems that do not exist and were not expected to manifest.
For example, the bill would prohibit North Carolina from moving to an all vote-by-mail election in November.
At the beginning of the COVID-19 outbreak in North Carolina, the legislature received requests from mostly Democratic voters and some advocates to move the election to all vote by mail, according to Dahle.
This was never a feasible option for the state, and the state Board of Elections never considered requesting that move.
Brinson Bell stated during the March 20 board meeting that the state’s “response to coronavirus for the November general election must not upend the system we have in place but rather be an all-out effort to reinforce, strengthen and improve voting as we know it in North Carolina.”
The bill also has a provision requiring photo ID in the November 2020 election. But the issue of photo ID is already tied up in the courts, with multiple court injunctions currently preventing North Carolina from forcing voters to provide photo ID in order to vote.
This added provision does not negate the court injunctions. Even if the courts unexpectedly overturned those rulings in time for photo ID to be required for November, it would be very difficult for county elections offices to prepare for that change in time. This bill, though, would add to the ID options allowed to voters.
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Finally, the bill made it a felony for an employee of a county board of elections to send an absentee ballot to a voter who had not requested one. Under current elections law, voters already need to request an absentee ballot, either to vote early or vote by mail. The state Board of Elections and the legislature received a glut of emails propagating conspiracy theories that Brinson Bell, the Democratic-appointed head of elections in the state, could use emergency powers to send ballots to all voters. This, as well, was never proposed. Republican legislators felt strongly that each of these provisions should be included in this bill. Comments
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Exhibit 3
Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 14 of 50

NC lawmakers to discuss bipartisan bill on absentee voting this week

abc11.com/hb1169-absentee-voting-state-elections-covid-19-response/6213140

May 26, 2020

Politics By Tim Pulliam Tuesday, May 26, 2020

RALEIGH, N.C. (WTVD) -- House Republicans and Democrats hope to help the state elections board prepare for an increase in absentee voting.

Elections officials say typically 4 to 5 percent of voters mail in their ballots.

But this fall, they project 30 to 40 percent of voters could vote by mail.
House Bill 1169 could update that process.
Voters would be able to request an absentee ballot through email, fax, or online.
One person could verify your absentee ballot vs. the previous requirement of two witnesses.
Election leaders said that with the majority of poll workers being older than 65, this bill will provide more flexibility in recruiting precinct officials.

The bill would also provide more funding to help make in-person voting safer and offset any extra costs.
"I'm really excited about it," State Rep. Pricey Harrison, a Democrat from Guilford County and co-sponsor of the bill, told ABC11. "I think if other states could follow our lead this wouldn't be a debate. This is all about making sure people have access to their right to vote and don't risk their health. It's been an inspiring experience to work across the aisle and across the chambers to come up with a bill that's common sense that also helps voters."
HB 1169 would also prevent the state board of elections from moving toward an all-by-mail election day and prevent sending unrequested ballots to your address.
But some advocates said the bill should go further to reduce limitations on voting.
On Wednesday, 30 civil and social justice groups will host a virtual rally called "ProtectOurVoteNC."

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They are asking lawmakers to consider making election day a holiday, expand curbside voting, and ensure the postage for mail-in ballots is prepaid. "Our votes matter, our lives matter," said Anthony Spearman, president of the North Carolina chapter of the NAACP. HB 1169 is expected to be voted on this Thursday. The Senate is working on a similar bill. Report a correction or typo Related topics: politicsraleighncvotingstate politicsgeneral assemblycoronaviruselectioncovid 19 pandemic Copyright © 2020 WTVD-TV. All Rights Reserved.
From CNN Newsource affiliates Copyright © 2020 ABC, Inc., WTVD-TV Raleigh-Durham. All Rights Reserved.
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Exhibit 4
Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 17 of 50

6/25/2020
Vote.org (/)

Voter Registration Deadlines - Vote.org
DONATE (/DONATE/)

MENU

Voter Registration Deadlines
It's best to double check with your state for any recent changes to election rules in your state.
COVID-19 Info: This information may have have changed in your state’s next election, check the COVID-19 page (/covid-19/) for info.
Select your state:

Alabama (/state/alabama)
Voter Registration Deadlines In Person: 15 days before Election Day. By Mail: Postmarked 15 days before Election Day. Online: 15 days before Election Day.
Election Day Registration Instructions N/A

Alaska (/state/alaska)

https://www.vote.org/voter-registration-deadlines/

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6/25/2020
Voter Registration Deadlines

Voter Registration Deadlines - Vote.org

In Person: 30 days before Election Day.
By Mail: Postmarked 30 days before Election Day. If this falls on a Sunday, postmarked 31 days before Election Day.
Online: 30 days before Election Day.

Election Day Registration Instructions N/A

Arizona (/state/arizona)
Voter Registration Deadlines
In Person: 29 days before Election Day, or on the next immediate business day if the deadline falls on a legal holiday or weekend. By Mail: Postmarked 29 days before Election Day, or on the next immediate business day if the deadline falls on a legal holiday or weekend. Online: 29 days before Election Day.
Election Day Registration Instructions N/A

Arkansas (/state/arkansas)

Voter Registration Deadlines

In Person: 30 days before Election Day.
By Mail: Postmarked 30 days before Election Day. If this falls on a Sunday, postmarked 29 days before Election Day.

https://www.vote.org/voter-registration-deadlines/

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6/25/2020

Online: N/A

Voter Registration Deadlines - Vote.org

Election Day Registration Instructions N/A

California (/state/california)
Voter Registration Deadlines
In Person: 15 days before Election Day. By Mail: Postmarked 15 days before Election Day. Online: 15 days before Election Day.
Election Day Registration Instructions If the voter registration deadline has passed, you can still conditionally register to vote and cast a provisional ballot in person at your County Elections Oﬃce at any time up to and including Election Day. Your provisional ballot will be counted when your County Elections Oﬃcial veriﬁes your voter registration.
Conditional registration may also be available in County Elections satellite oﬃces and vote centers.

Colorado (/state/colorado)

Voter Registration Deadlines
In Person: Election Day. By Mail: Received 8 days before Election Day. Online: 8 days before Election Day.

https://www.vote.org/voter-registration-deadlines/

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Voter Registration Deadlines - Vote.org

Election Day Registration Instructions

You can register and cast a ballot up through Election Day by appearing inperson at a Voter Service and Polling Center during the Early Voting period or on Election Day. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Connecticut (/state/connecticut)
Voter Registration Deadlines
In Person: 7 days before Election Day. By Mail: Postmarked 7 days before Election Day. Online: 7 days before Election Day.
Election Day Registration Instructions If the voter registration deadline has passed, you can still register to vote in person at a designated Election Day Registration oﬃce. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Delaware (/state/delaware)
Voter Registration Deadlines In Person: 24 days before Election Day. By Mail: Postmarked 24 days before Election Day. Online: The fourth Saturday before Election Day.

https://www.vote.org/voter-registration-deadlines/

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Voter Registration Deadlines - Vote.org

Election Day Registration Instructions

N/A

District of Columbia (/state/district-of-columbia)
Voter Registration Deadlines
In Person: Election Day, with proof of residency. By Mail: Received 21 days before Election Day. Online: 21 days before Election Day.
Election Day Registration Instructions
If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. Simply go to your regular polling place or early voting site to register and vote. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions. You will need to bring proof of residency, such as a government photo ID, or a copy of a current utility bill, bank statement, government check, or pay check that shows your current name and address.

Florida (/state/ﬂorida)
Voter Registration Deadlines In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: 29 days before Election Day.

https://www.vote.org/voter-registration-deadlines/

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Voter Registration Deadlines - Vote.org

Election Day Registration Instructions

N/A

Georgia (/state/georgia)
Voter Registration Deadlines In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: The ﬁfth Monday before Election Day.
Election Day Registration Instructions N/A

Hawaii (/state/hawaii)
Voter Registration Deadlines
In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. Online: 30 days before Election Day.
Election Day Registration Instructions If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting at early walk-in locations and on Election Day at your polling place. Contact your Local Election Oﬃce if you have any questions.

https://www.vote.org/voter-registration-deadlines/

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Voter Registration Deadlines - Vote.org

Idaho (/state/idaho)
Voter Registration Deadlines
In Person: 24 days before Election Day. If you miss this deadline, you may also register on Election Day. (You must show proof of residence to register at the polls on Election Day.) By Mail: Postmarked 25 days before Election Day. Online: 25 days before Election Day.
Election Day Registration Instructions
If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. Simply go to your regular polling place or early voting site to register and vote. You will need to show proof of residence and a photo ID. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Illinois (/state/illinois)

Voter Registration Deadlines
In Person: 27 days before Election Day, after which you may register during the early voting period through Election Day. By Mail: Postmarked 28 days before Election Day. Online: 16 days before Election Day.

Election Day Registration Instructions
You can also register in person (and vote) at your local elections oﬃce during the "grace period." The grace period starts 27 days before Election Day and ends on Election Day. Grace Period Voting does NOT take place at your regular

https://www.vote.org/voter-registration-deadlines/

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Voter Registration Deadlines - Vote.org
polling place. Grace Period Voting almost always happens at your Local Election Oﬃce. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) for more information.

Indiana (/state/indiana)
Voter Registration Deadlines In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: 29 days before Election Day.
Election Day Registration Instructions N/A

Iowa (/state/iowa)

Voter Registration Deadlines
In Person: 10 days before Election Day. If you miss the deadline, you can also register to vote in-person during early vote or on Election Day. By Mail: Postmarked 15 days before Election Day or received 10 days before Election Day. Online: 10 days before Election Day.

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. Simply go to your regular polling place or early voting site to register and vote.

https://www.vote.org/voter-registration-deadlines/

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You should bring valid photo ID and, if the ID does not list your current address, also proof of residence. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Kansas (/state/kansas)
Voter Registration Deadlines In Person: 21 days before Election Day. By Mail: Postmarked 21 days before Election Day. Online: 21 days before Election Day.
Election Day Registration Instructions N/A

Kentucky (/state/kentucky)
Voter Registration Deadlines In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: 29 days before Election Day.
Election Day Registration Instructions N/A

https://www.vote.org/voter-registration-deadlines/

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Louisiana (/state/louisiana)
Voter Registration Deadlines In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. Online: 20 days before Election Day.
Election Day Registration Instructions N/A

Maine (/state/maine)
Voter Registration Deadlines
In Person: Election Day. By Mail: Received 21 business days before Election Day. Online: N/A
Election Day Registration Instructions
If you register to vote within 21 days of an election, including on election day, you must appear in person to register at the municipal registrar in order to register. Photo ID and proof of residence is required. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) with any questions.

Maryland (/state/maryland)

https://www.vote.org/voter-registration-deadlines/
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Voter Registration Deadlines

Voter Registration Deadlines - Vote.org

In Person: 21 days before Election Day. You may also register during early voting or on Election Day with proof of address. See Election Day registration instructions.
By Mail: Postmarked 21 days before Election Day.
Online: 21 days before Election Day.

Election Day Registration Instructions
You can register to vote in-person during early voting and on Election Day. You will need to bring your MVA-issued license, ID card, or change of address card, or a paycheck, bank statement, utility bill, or other government document that has your name and current address.

Massachusetts (/state/massachusetts)
Voter Registration Deadlines In Person: 20 days before Election Day. By Mail: Postmarked 20 days before Election Day. Online: 20 days before Election Day.
Election Day Registration Instructions N/A

Michigan (/state/michigan)
Voter Registration Deadlines

https://www.vote.org/voter-registration-deadlines/

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In Person: Election Day at your city or township clerk oﬃce. The voter registration deadline is 15 days before Election Day, if you submit an application form through a voter registration drive or deliver it to a county clerk or secretary of state oﬃce.
By Mail: Postmarked 15 days before Election Day.
Online: 15 days before Election Day.

Election Day Registration Instructions
If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. If you plan to register in person within 14 days of Election Day, you will need to present proof of residency. To register under these rules, Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) with any questions.

Minnesota (/state/minnesota)
Voter Registration Deadlines
In Person: Election Day. By Mail: Received 21 days before Election Day. Online: 21 days before Election Day.
Election Day Registration Instructions
If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during the in-person absentee voting period or on Election Day. Simply go to your regular in-person absentee voting site -- or to your regular polling place -- to register and vote. You should bring valid ID and, if the ID does not list your current name and address, also proof of residence. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

https://www.vote.org/voter-registration-deadlines/
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Mississippi (/state/mississippi)
Voter Registration Deadlines In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. Online: N/A
Election Day Registration Instructions N/A

Missouri (/state/missouri)
Voter Registration Deadlines In Person: 27 days before Election Day. By Mail: Postmarked 27 days before Election Day. Online: 27 days before Election Day.
Election Day Registration Instructions N/A

Montana (/state/montana)

Voter Registration Deadlines

In Person: Election Day.

https://www.vote.org/voter-registration-deadlines/
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By Mail: Postmarked 30 days before Election Day. Received 27 days before Election Day.
Online: N/A

Election Day Registration Instructions
If you have missed the voter registration deadline, you can still register to vote at your county election oﬃce through close of polls on Election Day, except between noon and 5:00 p.m. the day before the election. You'll have to register at the oﬃce of your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) -- not at a polling place. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) for questions about the process. Photo ID or proof or residency is required.

Nebraska (/state/nebraska)
Voter Registration Deadlines In Person: 11 days before Election Day. By Mail: Postmarked 18 days before Election Day. Received 14 days before Election Day, if there's an illegible postmark. Online: 18 days before Election Day
Election Day Registration Instructions N/A

Nevada (/state/nevada)

Voter Registration Deadlines

https://www.vote.org/voter-registration-deadlines/
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In Person: Election Day.

Voter Registration Deadlines - Vote.org

By Mail: Postmarked 28 days before Election Day.

Online: 5 days before Election Day

Election Day Registration Instructions You may register to vote in-person at the polling place either during early voting or on Election Day. You must show a valid Nevada driver’s license or identiﬁcation card at the polls to vote. If the identiﬁcation does not have your current address, you must also show proof of residency .
N/A

New Hampshire (/state/new-hampshire)
Voter Registration Deadlines
In Person: Election Day. Before Election Day, the last day to register is the last meeting of the Supervisors of the Checklist. The supervisors meet once, 6-13 days before Election Day. Check your town/city website, or call your clerk's oﬃce for the date, time, and location of the Supervisor's meeting. By Mail: Received between 6 and 13 days before Election Day, depending on which town you live in. Online: N/A
Election Day Registration Instructions
If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time on Election Day. Simply go to your regular polling place or early voting site to register and vote. Voters should bring a valid photo ID to vote. Voters that do not bring a valid photo ID execute a challenged voter aﬃdavit form and will later receive a letter requesting conﬁrmation they voted. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) for questions about the process or identiﬁcation requirements.

https://www.vote.org/voter-registration-deadlines/
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New Jersey (/state/new-jersey)
Voter Registration Deadlines In Person: 21 days before Election Day. By Mail: Postmarked 21 days before Election Day. Online: N/A
Election Day Registration Instructions N/A

New Mexico (/state/new-mexico)
Voter Registration Deadlines
In Person: Saturday before Election Day at the county clerk's oﬃce. 28 days before Election Day otherwise. By Mail: Postmarked 28 days before Election Day. However, an application may be accepted through the Friday following the deadline if the application is postmarked before the deadline. Online: 28 days before Election Day
Election Day Registration Instructions
N/A. New Mexico will begin same-day registration in 2021.

New York (/state/new-york)

https://www.vote.org/voter-registration-deadlines/
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Voter Registration Deadlines

Voter Registration Deadlines - Vote.org

In Person: 25 days before Election Day.
By Mail: Postmarked 25 days before Election Day. Received 20 days before Election Day.
Online: 25 days before Election Day

Election Day Registration Instructions N/A

North Carolina (/state/north-carolina)
Voter Registration Deadlines
In Person: The Saturday before Election Day if voting early in person. Otherwise 25 days before Election Day. By Mail: Postmarked 25 days before Election Day. If the postmark is missing or unclear, the application will still be processed if it is Received 20 days before Election Day. Online: 25 days before Election Day
Election Day Registration Instructions
If an individual becomes qualiﬁed to vote between the registration deadline (the 25th day before Election Day) and Election Day, then the individual may apply to register on Election Day by submitting an application to: a member of the county board of elections, the county director of elections, or the chief judge or a judge of the precinct in which the person is eligible to vote. If the application is approved, the individual may vote the same day. This applies to those individuals who recently become naturalized citizens of the U.S. or who have restored to citizenship after a felony conviction, but it does not apply to individuals who were 17 years old and reach 18 after the registration deadline.

https://www.vote.org/voter-registration-deadlines/
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North Dakota (/state/north-dakota)

Voter Registration Deadlines
In Person: North Dakota does not have voter registration. You simply need to bring valid proof of ID and residency to the polls in order to vote. By Mail: North Dakota does not have voter registration. You simply need to bring valid proof of ID and residency to the polls in order to vote. Online: N/A

Election Day Registration Instructions
North Dakota does not have voter registration. You simply need to bring valid proof of ID and residency to the polls in order to vote.

Ohio (/state/ohio)
Voter Registration Deadlines
In Person: 30 days before Election Day, extended to the next business day if this falls on a Sunday. By Mail: Postmarked 30 days before Election Day, extended to the next business day if this falls on a Sunday. Online: 30 days before Election Day
Election Day Registration Instructions N/A

Oklahoma (/state/oklahoma)

Voter Registration Deadlines

https://www.vote.org/voter-registration-deadlines/
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In Person: 25 days before Election Day. By Mail: Postmarked 25 days before Election Day. Online: N/A

Election Day Registration Instructions N/A

Oregon (/state/oregon)
Voter Registration Deadlines In Person: 21 days before Election Day. By Mail: Received 21 days before Election Day. Online: 21 days before Election Day
Election Day Registration Instructions N/A

Pennsylvania (/state/pennsylvania)

Voter Registration Deadlines
In Person: 15 days before Election Day. By Mail: Received 15 days before Election Day. Online: 15 days before Election Day

Election Day Registration Instructions

N/A

https://www.vote.org/voter-registration-deadlines/
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Rhode Island (/state/rhode-island)
Voter Registration Deadlines
In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. If the postmark is missing or unclear and the registration form is received no later than 5 days after the deadline, the individual shall be presumed to have been registered by the deadline. Online: 30 days before Election Day
Election Day Registration Instructions
You may register in person on Election Day at your local Board of Canvassers but only for Presidential elections.

South Carolina (/state/south-carolina)
Voter Registration Deadlines
In Person: 30 days before Election Day. If this falls on a Sunday, the last preceeding day that the county board of voter registration and elections is open. By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 30 days before Election Day
Election Day Registration Instructions
N/A

https://www.vote.org/voter-registration-deadlines/
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South Dakota (/state/south-dakota)
Voter Registration Deadlines In Person: 15 days before Election Day. By Mail: Received 15 days before Election Day. Online: N/A
Election Day Registration Instructions N/A

Tennessee (/state/tennessee)
Voter Registration Deadlines
In Person: 30 days before Election Day. If this falls on a Sunday, 29 days before Election Day. By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 30 days before Election Day
Election Day Registration Instructions N/A

Texas (/state/texas)

Voter Registration Deadlines

https://www.vote.org/voter-registration-deadlines/
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In Person: 30 days before Election Day. If this falls on a Sunday, 29 days before Election Day.
By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday.
Online: N/A

Election Day Registration Instructions N/A

Utah (/state/utah)
Voter Registration Deadlines
In Person: 7 days before Election Day in clerk's oﬃce, but may also register during early vote and on Election Day.However, individuals must vote by provisional ballot if they: (i) register online or in person between 7 and 14 days before Election Day, (ii) register during early voting, or (iii) register on Election Day. By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 7 days before Election Day
Election Day Registration Instructions
An individual who is not registered to vote may register to vote, and vote, on election day or during the early voting period described in Section 20A-3-601, by voting a provisional ballot, if:
1. the individual is otherwise legally entitled to vote the ballot; 2. the ballot is identical to the ballot for the precinct in which the individual
resides; 3. the information on the provisional ballot form is complete; and 4. the individual provides valid voter identiﬁcation and proof of residence to the
poll worker.

https://www.vote.org/voter-registration-deadlines/
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More information on election day registration (https://le.utah.gov/xcode/Title20A/Chapter2/20A-2-S207.html?v=C20A-2S207_2018050820180508)

Vermont (/state/vermont)
Voter Registration Deadlines
In Person: Election Day (you must show proof of residence to register at the polls on Election Day). By Mail: Received Election Day. Online: Election Day. But if you register online the day before or on Election Day, your application may not be processed and your name may not appear on the checklist and you may be asked to ﬁll out another application at the polls. To be sure your name appears on the checklist, please register by the Friday before the election.
Election Day Registration Instructions
You can register to vote on Election Day at your polling place. You must show proof of residence to register at the polls on Election Day.

Virginia (/state/virginia)
Voter Registration Deadlines
In Person: 22 days before Election Day. If this day falls on a Sunday, 21 days before Election Day. By Mail: Postmarked 22 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 22 days before Election Day

https://www.vote.org/voter-registration-deadlines/
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Election Day Registration Instructions

N/A

Washington (/state/washington)
Voter Registration Deadlines
In Person: Election Day. By Mail: Received 8 days before Election Day. Online: 8 days before Election Day
Election Day Registration Instructions
Individuals may register to vote in their county auditor's oﬃce, the division of elections if in a separate city from the county auditor's oﬃce, a voting center, or other location designated by the county auditor in his or her county of residence no later than 8:00pm on the day of the primary, special election, or general election. The registration process and requirements for registering on Election Day are the same as for ﬁlling out a paper registration form or the online form.

West Virginia (/state/west-virginia)

Voter Registration Deadlines
In Person: 21 days before Election Day. By Mail: Postmarked 21 days before Election Day. Online: 21 days before Election Day

Election Day Registration Instructions

https://www.vote.org/voter-registration-deadlines/
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N/A

Voter Registration Deadlines - Vote.org

Wisconsin (/state/wisconsin)
Voter Registration Deadlines In Person: The Friday before Election Day. By Mail: Postmarked the 3rd Wednesday before Election Day. Online: 20 days before Election Day
Election Day Registration Instructions Individuals may register to vote in person at your polling place on Election Day. All individuals must provide both a proof of residency document and proof of identiﬁcation to register on election Day.

Wyoming (/state/wyoming)
Voter Registration Deadlines
In Person: 14 days before Election Day. By Mail: Postmarked 14 days before Election Day. After this date, individuals may register to vote by mail if their registration is also accompanied by an absentee ballot request. Online: N/A
Election Day Registration Instructions
1. Wyoming does not accept the National Voter Registration Form so please do not use our Register to Vote Tool (/register-to-vote/) to register to vote in Wyoming.

https://www.vote.org/voter-registration-deadlines/
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2. Wyoming prefers that people register to vote in person at the County Clerk's oﬃce.
3. If this isn't possible, print out the Wyoming Voter Registration form and ﬁll it out in front of a notary. That part is really important! Your Wyoming Voter Registration Form MUST be notarized. Print clearly, using a black or blue ink pen (not felt tip).
4. Sign the voter registration oath on the form and have the notary or registered agent sign the form.
5. Make copies of the identiﬁcation documents you showed to the notary.
6. Mail the voter registration form, along with the copies of your ID documents, to your County Clerk (http://soswy.state.wy.us/Elections/CountyClerks.aspx) . Note: Sending your form to any other oﬃce will delay your voter registration.
7. Mail your form as soon as possible. Voter registration closes two weeks prior to Election Day.
8. Follow up with your County Clerk (http://soswy.state.wy.us/Elections/CountyClerks.aspx) about any questions you may have about your registration or requests for absentee ballots.

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VOTER REGISTRATION Voter registration rules (/voter-registration-rules/) Voter registration deadlines (/voter-registration-deadlines/)

https://www.vote.org/voter-registration-deadlines/
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Check your registration status (/am-i-registered-to-vote/)

Register to vote (/register-to-vote/)

Pledge to register (/pledge-to-register/)

ABSENTEE BALLOTS Absentee ballot rules (/absentee-voting-rules/) Absentee ballot deadlines (/absentee-ballot-deadlines/) Get your absentee ballot (/absentee-ballot/)

VOTE BY MAIL Vote by mail rules (/absentee-voting-rules/) Vote by mail deadlines (/absentee-ballot-deadlines/) Vote by mail (/absentee-ballot/)

VOTING Voting & COVID-19 (/covid-19/) Voter ID laws (/voter-id-laws/) Early voting calendar (/early-voting-calendar/) Election reminders (/election-reminders/) Polling place locator (/polling-place-locator/) Help desk (http://help.vote.org)

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Careers (https://votedotorg.recruiterbox.com/)

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https://www.vote.org/voter-registration-deadlines/
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Exhibit 5
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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 48 of 50

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 49 of 50

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 50 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Civil Action No. 20-cv-00457
MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION OF ORDER DENYING PROPOSED REPUBLICAN COMMITTEE INTERVENORS’ MOTION TO INTERVENE AND ALTERNATIVE MOTION FOR LEAVE TO FILE RESPONSE AS AMICI CURIAE TO PLAINTIFFS’ AMENDED MOTION FOR A PRELIMINARY INJUNCTION

Defendants,

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 1 of 10

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,
Intervenor-Defendants. MEMORANDUM IN SUPPORT OF REPUBLICAN COMMITTEES’
MOTION FOR RECONSIDERATION AND ALTERNATIVE MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF
Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 2 of 10

INTRODUCTION Proposed Intervenor-Defendants the Republican National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), and North Carolina Republican Party (“NCRP”) (collectively the “Republican Committees”) move for reconsideration of the court’s June 24, 2020 order denying the Republican Committees’ motion to intervene. First, Defendants and the Legislative Intervenors are not organizations engaged in voter education, registration, and get-out-the-vote activities. By denying the Republican Committees’ request for intervention, there is currently no party in the case that can provide arguments in opposition to Plaintiffs League of Women Voters and Democracy North Carolina, which engage in the same activities. Second, the denial of permissive intervention was based on concern that the Committees’ participation would cause delay, even though they had timely filed a motion to intervene and committed to meeting scheduling deadlines. Accordingly, the Republican Committees urge the Court to reverse its ruling and grant them intervention in this case. Alternatively, the Republican Committee request leave to file a response in opposition to Plaintiffs’ amended motion for a preliminary injunction as amici curiae.
BACKGROUND On June 19, 2020, the Republican Committees moved to intervene by right and by permissive intervention in order to uphold the North Carolina election laws challenged by Plaintiffs and prevent the diversion of financial and personnel resources to address abrupt changes to voting procedures only months before an election. Mot. to Intervene at 4 (Dkt.
1
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No. 33). As stated in their motion, the Republican Committees committed to file their response to Plaintiffs’ motion by the deadline specified by the court, and represented they would not attempt to alter that schedule in any way. See Republican Committees’ Br. at 5 (Dkt. No. 33).
On June 24, the court denied the motion to intervene on both grounds. The Court held that the Republican Committees had no right to intervention because their interest in “the current lawfully enacted requirements” would be adequately represented by the parties already in the case. Order at 4 (Dkt. No. 48). With respect to permissive intervention, the court determined that granting the Republican Committees’ motion to intervene would “likely unnecessarily extend fact-finding, discovery, and evidentiary hearings, thereby resulting in inefficiencies and undue delay of the resolution of these matters.” Id. at 7.
ARGUMENT I. THE REPUBLICAN COMMITTEES’ HAVE UNIQUE INTERESTS
SUPPORTING INTERVENTION AND THEIR PARTICIPATION WILL NOT HINDER PROGRESS IN THE CASE. Rule 54(b), which “provides that ‘any order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Parker v. John Moriarty & Assocs., 221 F. Supp. 3d 1, 2 (D.D.C. 2016) (quoting Fed. R. Civ. Proc. 54(b)). Although reconsideration is not granted liberally, it is appropriate when necessary to “correct manifest errors of law or fact.” Georgia-Pacific Consumer Prods. v. Von Drehle Corp., 815 F. Supp. 2d 927, 929 (E.D.N.C. 2011) (quoting Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D. 507 (W.D.N.C. 2003)).
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That standard is satisfied here. First, the Court’s order denying intervention by right misconstrued the Republican Committees’ interests in opposing Plaintiffs’ motion for a preliminary injunction. The Court denied intervention on the ground that the existing parties adequately represent the interest in “current lawfully enacted [voting] requirements.” Order at 4 (Dkt. No. 48). But as specified in their Reply and supporting Declaration, the Committees seek to preserve North Carolina’s voting laws to prevent disruption to the Committees’ “voter registration, voter education, and ‘get-out-the-vote’ (‘GOTV’) activities up to and on election day.” Those are the same activities carried out by Plaintiffs Democracy North Carolina and the League of Women Voters, and which they claim the statutes at issue suppress. Defendants and Intervenors do not fund or engage in such electioneering programs and cannot adequately represent the interests of the Republican Committees.
Second, although finding the Republican Committees’ request for permissive intervention timely and that their answer (filed with the motion) “shared common questions of law and fact with the main action,” the Court denied permissive intervention because their involvement might “unnecessarily extend fact-finding, discovery, and evidentiary hearings, thereby resulting in inefficiencies and undue delay of the resolution of these matters.” Order at 7 (Dkt. No. 48). But the Republican Committees committed to adhere to the schedule in the case, filed an Answer with their motion, and herewith submit a brief in opposition (tendered either as a brief in intervention or, alternatively as an amicus brief). With respect, there is no basis for the Court to question the commitment of the Republican Committees to conform to the existing schedule, or to otherwise disrupt the case. Weighing
3
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against any minimal additional burden would be the nationwide experience with election

laws and procedures the Committees’ can bring to the case. Accordingly, the Republican

Committees respectfully request that the Court reconsider its ruling and enter an order

granting intervention in sufficient time for the Committees to participate in any hearing on

Plaintiffs’ motion.

II. ALTERNATIVELY, REPUBLICAN COMMITTEES APPROVAL TO PARTICIPATE AS AMICI CURIAE.

REQUEST

In the event the court adheres to its order denying intervention, the Republican

Committees seek leave to file the accompanying conditional friend of the court brief. The

Republican Committees have substantial interests in the outcome of Plaintiffs’ motion for

a preliminary injunction and the litigation as a whole. The Republican Committees

comprise national committees and a state political party organization of the Republican

Party. Each is dedicated to supporting Republican candidates in North Carolina through

fundraising, voter education and registration, get-out-the-vote drives, and other campaign

activities. In light of these programs and the expenses necessary to administer them, the

Republican Committees oppose Plaintiffs’ amended motion for a preliminary injunction

because the requested relief would create voter confusion, increase the risk of voter fraud,

and require the Republican Committees to divert money, staff, and volunteer resources to

communicate to voters about the proposed changes. Further, certain changes advocated by

Plaintiffs (such as extending the voter registration deadline or allowing private entities to

collect ballots) would directly affect the Republican Committees’ electioneering efforts by

requiring competitive responses. Accordingly, the Republican Committees seek to defend

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the challenged North Carolina voting laws and support the Defendants and Legislative Intervenor-Defendants in this matter. Based on their decades of experience with voting activities in North Carolina and across the country, the Republican Committees have substantial expertise in political campaigns and voting practices and procedures, and their perspectives on election laws and procedures will assist the Court.
CONCLUSION For the foregoing reasons, the RNC, NRSC, NRCC, and NCRP urge the Court to grant their motion for reconsideration and admit them as intervenors with all the rights of a defendant in this litigation. Alternatively, the RNC, NSRC, NRCC, and NCRP request permission to file the attached brief as amici curiae in accordance with the Court’s June 24, 2020 order. See Order at 7 (Dkt. No. 48).
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Dated: June 26, 2020

Respectfully submitted,
/s/ Bobby R. Burchfield Bobby R. Burchfield (pro hac vice pending) Matthew M. Leland (pro hac vice pending) King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 bburchfield@kslaw.com mleland@kslaw.com
R. Scott Tobin (N.C. Bar No. 34317) Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: stobin@taylorenglish.com
Counsel for the Republican Committees

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CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for this Memorandum is 1,177 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of Microsoft Word, which was used to prepare the brief.
/s/ Bobby R. Burchfield Bobby R. Burchfield
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CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that, on June 26, 2020, I electronically filed the foregoing Memorandum in Support of Republican Committees’ Motion for Reconsideration and Alternative Motion for Leave to File Amici Curiae Brief with the Clerk of the Court using the CM/ECF system.
/s/ Bobby R. Burchfield Bobby R. Burchfield
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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Civil Action No. 1:20-cv-457

DEMOCRACY NORTH CAROLINA, et al.,
Plaintiffs, v.
THE NORTH CAROLINA STATE BOARD OF ELECTIONS; et al.,
Defendants,
and
PHILIP E. BERGER, etc., et al., Intervenors.

)

)

)

) STATE DEFENDANTS’ RESPONSE

)

TO MOTION FOR

) PRELIMINARY INJUNCTION

)

[DE 9]

)

)

)

)

)

)

)

)

NOW COME defendants—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; Ken Raymond, Jeff Carmon III, and David C. Black, in their official capacities as Members of the State Board of Elections; Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections; the North Carolina Department of Transportation; J. Eric Boyette, in his official capacity as Transportation Secretary; the North Carolina Department of Health and Human Services; Mandy Cohen, in her official capacity as Secretary of Health and Human Services (collectively “the State Defendants”)—and hereby respond to the Motion for Preliminary Injunction filed by plaintiffs on 5 June 2020 [DE 9].

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INTRODUCTION Plaintiffs filed this action on 22 May 2020. Through it, they challenge various provisions of North Carolina election law, alleging that in the context of the COVID-19 pandemic, those election law provisions infringe on their rights under the United States Constitution and federal statutes. Plaintiffs filed their First Amended Complaint [DE 8] and their Motion for Preliminary Injunction [DE 9] on 5 June 2020. In their motion, plaintiffs seek to have this Court enter a variety of mandatory and prohibitive injunctions against the State defendants. The mandatory and prohibitive injunctive relief they seek ranges from eliminating the witness requirement for absentee ballots and the registration deadline of 25 days before the election to requiring that the State defendants provide drop-boxes for absentee ballot requests and ordering a “remedial plan to educate voters regarding their options to register to vote and obtain and cast a ballot.” [DE 31 at 8.] While many of the measures that plaintiffs seek might be appropriate choices to make from a policy perspective, the record before the Court does not establish that they are appropriate subjects for a preliminary injunction. This Court should not attempt to take on the role of state legislature and state executive—deciding what election policies shall have the force of law in North Carolina as well as directing the execution of those policies. The purpose of a preliminary injunction is to preserve the status quo and protect the rights of the plaintiffs pending litigation. Plaintiffs have failed to show that they are likely to succeed on the merits of their claims. And they have failed to show that the balance of the equities tips in their favor.
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The balance of the equities as well as the public interest require that the mandatory and prohibitive injunctions plaintiffs seek be denied. Much of the relief sought would place an enormous, if not insurmountable, strain on the State’s administration of the 2020 election— an election already under strain due to the COVID-19 pandemic—in order to remedy minimal and even non-existent burdens on plaintiffs’ rights. The Court should not accept Plaintiffs’ invitation to administer North Carolina’s election procedures.
The motion for preliminary injunction should be denied. STATEMENT OF THE FACTS
The effects of the novel coronavirus strain known as COVID-19, both on public health and on a wide variety of activities is, by now, well-known. The COVID-19 pandemic has been widely recognized as the greatest global health crisis in at least a century. In North Carolina, more than 56,000 people have had laboratory confirmed cases of COVID-19, and more than 1,200 people have died from the disease. (See Executive Order No. 147, issued 24 June 2020.)
The first case of COVID-19 was identified in North Carolina on March 3, 2020, which happened to be the day of North Carolina’s primary election. On 10 March 2020, the Governor of North Carolina, Roy Cooper, declared a State of Emergency, as defined in N.C. GEN. STAT. §§ 166A-19.3(6) and 166-19.3(19), to address the COVID-19 public health emergency and provide for the safety of people in the State. The World Health Organization declared COVID-19 a global pandemic on 11 March 2020. On 13 March 2020, the President of the United States declared the COVID-19 outbreak a national emergency, retroactive to 1 March 2020. On 25 March 2020, the President of the United
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States approved a Major Disaster Declaration for the State of North Carolina. (Id.) In the time since the Governor declared a State of Emergency on 10 March 2020,
North Carolina officials have undertaken numerous actions both to contain the pandemic and to make appropriate adjustments and accommodations to how citizens engage with government agencies. The Governor has issued 25 Executive Orders, including most recently Executive Order 147, issued just two days ago, on 24 June 2020. These Executive Orders have imposed restrictions designed to slow the spread of COVID-19, but they have also included numerous measures designed to protect the people of North Carolina in ways other than health. For example, Executive Order Nos. 124 and 142 imposed and extended a prohibition of utility shut-offs for persons having trouble paying their utility bills. (See Executive Order No. 142, issued 30 May 2020). Executive Order No. 142 also implemented a temporary moratorium on evictions for inability to pay rent. (Id.)
Likewise, the Chief Justice of North Carolina, Cheri Beasley, and the North Carolina Supreme Court have issued a number of orders related to the business of North Carolina’s court system. These orders have addressed matters from access to courthouses, provision for virtual hearings and trials and procedures for jury trials, to extensions of deadlines and statutes of limitation, moratoriums on certain types of hearings, including eviction hearings and provision for magistrates to conduct marriage ceremonies. (See Orders of the Chief Justice issued 13 March 2020, 19 March 2020, 2 April 2020, 13 April 2020, 16 April 2020, 1 May 2020, 21 May 2020, 30 May 2020 and 20 June 2020; Orders of the North Carolina Supreme Court issued 27 March 2020 and 14 May 2020.)
With regard to election matters, Bell, as Executive Director of the NCSBE has taken 4
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numerous actions to ensure that elections—particularly the 23 June 2020 elections—can proceed smoothly and safely for voters and for poll workers. On 15 March 2020, she issued Numbered Memo 2020-11 to the 100 county boards of elections in North Carolina, updating them on State Board’s responses to the COVID-19 outbreak and providing recommendations to ensure that elections administration could proceed. (See Ex. 1. Declaration of Karen Brinson Bell, ¶ 6.) That numbered memo recommended that county boards conduct board meetings telephonically, if possible, and indicated that the deadline for county boards of elections to sort ballots by precinct under N.C. GEN. STAT. § 163132.5G would be extended by Bell by at least 30 days. (Id., ¶ 6.) It also announced the creation of a COVID-19 Task Force to discuss both short-term and long-term needs related to the pandemic and voting. (Id., ¶ 6.) The COVID-19 Task Force is composed of state and county elections officials. It has provided input regarding legislative recommendations to administer elections during the pandemic, necessary measures for the expected increase in mail balloting as well as efforts that must be taken to ensure the health and well-being of voters and election workers during in-person voting, and considerations for uses and allocation of federal funding among the county boards of elections. (Id., ¶ 6.)
On 20 March 2020, pursuant to N.C. GEN. STAT. § 163-27.1 and an amendment adopted by Emergency Rule to 08 NCAC 01 .0106, Bell issued an order rescheduling the Republican second primary in Congressional District 11 (“CD 11”) from 12 May 2020 to 23 June 2020.1 (Id., ¶ 8.) The order stayed consideration of election protests until 20 May
1 N.C. GEN. STAT. § 163-27.1 authorizes the Executive Director of the State Board to “exercise emergency powers to conduct an election in a district where the normal schedule
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2020, extended the deadline for county boards to sort ballots by precinct to that same date, required county board offices that are closed due to the pandemic to provide a secure lockbox for the public to deposit election-related forms, and suspended the requirement to keep a log of absentee request forms dropped off in person. (Id., ¶ 8.) The order also permitted the transfer of voters to a non-adjacent precinct if the transfer was related to the COVID19 pandemic. (Id., ¶ 8.) For the second primary on 23 June 2020, voters in 11 precincts were transferred to non-adjacent precincts, reflecting a total of 9,019 eligible voters transferred. (Id., ¶ 8.)
On 1 June 2020, Bell issued Numbered Memo 2020-12, which provided guidance to the county boards of elections conducting in-person voting for the 23 June 2020 second primary in CD 11 and the new primary in Columbus County. (Id., ¶ 10.) The memo established policies to provide a safe experience for voters and elections officials during the COVID-19 pandemic, including requiring poll workers and early voting workers to wear personal protective equipment (“PPE”), including masks, face protection, and gloves, when appropriate, and to self-screen for symptoms prior to reporting to work. (Id., ¶ 10.) Voters who present to vote were provided with masks if they needed one, hand sanitizer, and single use pens and cotton swabs, if voting by ballot-marking device. Routine
for the election is disrupted” by various events, including “[a] natural disaster.” 08 N.C.A.C. 01 .0106 addresses circumstances under which the Executive Director can exercise those emergency powers, and provides that “natural disaster” includes a “[c]atastrophe arising from natural causes resulting in a disaster declaration by the President of the United States or the Governor, a national emergency declaration by the President of the United States, or a state of emergency declaration issued under G.S. 166A19.3(19).” The emergency rule was designed to clarify that a “[c]atastrophe arising from natural disasters” included a pandemic.
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cleanings took place throughout the day at each voting place, and social distancing measures were in place as recommended by the Center for Disease Control (“CDC”). County boards of elections were encouraged to assign additional roles for precinct officials, including interior line control worker, door control worker, exterior line control worker and sanitizer worker. (Id., ¶ 10.)
Moreover, during a bimonthly webinar with directors of the county boards of elections on 10 June 2020, Bell informed the directors of her commitment to maintaining election-day precincts as they are and avoiding precinct mergers whenever possible for general elections. As discussed above, precinct transfers were permitted in some cases in 11 counties for the Republican second primary in CD 11. These changes were permitted because of the low turnout expected for that primary and because of the time frame in which the election was taking place, which in some cases made it difficult to secure alternative sites that would allow for social distancing needs. For the general election, on the other hand, it will be important to keep as many precincts open as possible to prevent long lines and to allow for greater social distancing. If a polling place needs to be closed because of a case of COVID-19, a greater number of polling places overall will lessen the impact. Reducing the total number of individuals who vote at a given site will also reduce the potential exposure to COVID-19. For the same reasons, Bell has also advised county boards of elections that they should increase the number of one-stop sites. (Id., ¶ 12.)
The State Board has also taken action to ensure that voting options are easily available to all North Carolina voters. For example, pursuant to N.C. GEN. STAT. § 163278.69, the State Board will send a Judicial Voter Guide to every North Carolina household
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prior to the November general election. The State Board plans to include a blank absentee ballot request form in the Guide. The form will be on heavier weight paper than the rest of the guide, which is necessary to ensure the form can be readily scanned into the Statewide Elections Information Management System (SEIMS). The Guide will include a link to the online absentee request portal that will be available beginning 1 September 2020, as required by 2020 N.C. Sess. Laws 17. It will also inform voters about recent changes to election laws and measures that are being taken to ensure voter safety for in-person voting. (Id., ¶ 11.)
Moreover, the State Board announced on 19 June 2020, that it is seeking “democracy heroes” to serve as election officials at early voting and on Election Day. A link is available on the State Board’s website for individuals to express their interest, which will be provided to the appropriate county board of elections. This effort is part of a broader effort to recruit poll workers to serve in 2020. Other efforts will include recruiting from veterans groups and university students.
The North Carolina General Assembly has also taken action to adjust North Carolina’s elections procedures in light of the dangers and constraints presented by the COVID-19 pandemic. On 11 June 2020, the General Assembly enacted House Bill 1169, entitled “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.” The Governor signed this bill into law the following day, 12 June 2020, and it was designated Session Law 2020–17. This act made a number of changes to election laws. For example, the requirement of two witnesses for absentee ballots was reduced to
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one witness. 2020 N.C. Sess. Laws 17, § 1.(a). In addition, county boards of elections now have greater flexibility to allow non-resident precinct officials to serve, which will help ensure that each polling places remains open even if some current precinct officials are unable or decline to serve. 2020 N.C. Sess. Laws 17, § 1.(b). Individuals working as part of a multipartisan team trained and authorized by county boards of elections can 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 17, § 1.(c). These multipartisan teams can, in accordance with guidelines developed by the State Board and the Department of Health and Human Services, assist voters in “hospitals, clinics, nursing homes, assisted living or other congregate living situations.” 2020 N.C. Sess. Laws 17, § 2.(b). Additionally, voters will be able to request absentee ballot request forms online. 2020 N.C. Sess. Laws 17, § 7.(a).
Session Law 2020–17 also provided state matching funds for the grant to the State under the federal CARES Act (P.L. 116-136), which makes a total of $13,067,636 available North Carolina. This money may be used, in part, to purchase necessary personal protective equipment (“PPE”) for the general election, and should be sufficient to provide adequate supplies of PPE to all 100 county boards of elections for the general election. (Bell Decl., ¶ 44.) The State Board has worked and will continue to work with county boards of elections to assist them in procuring PPE, and is coordinating with the Emergency Management Division of the North Carolina Department of Public Safety to procure gloves, disinfecting wipes, face shields and masks for the general election. (Bell Decl., ¶
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43.) A donation of hand sanitizer to supply to county boards of elections statewide is also for the general election. (Bell Decl., ¶ 43.)
Bell and the State Board continue to monitor the developing challenges presented by COVID-19 so that they can plan and exercise their authority to ensure that all voters are able to vote, that voters and poll workers are safe and that the 2020 election is administered in an orderly manner. (Bell Decl., ¶ 17.)
QUESTION PRESENTED 1. Whether plaintiffs have established that they are entitled to preliminary
injunctive relief. LEGAL STANDARD
“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief’ and may never be awarded ‘as of right.’” Mt. Valley Pipeline, LLC v. W. Pocahontas Props. Ltd. P’ship, 918 F.3d 353, 366 (4th Cir. 2019) (citing Winter v. NRDC, Inc., 555 U.S. 7, 22, 24 (2008)). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20.
Plaintiffs have the burden of proof on each factor. Winter, 555 U.S. at 20. Additionally, a plaintiff must show that success on the merits is likely regardless of whether the balance of hardships weighs in his favor. The Real Truth About Obama, Inc. v. F.E.C., 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010). This
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burden requires more than simply showing that “grave or serious questions are presented.” Id. at 346-47.
Where, as here, plaintiffs seek not only an injunction that preserves the status quo, but one that imposes affirmative requirements on defendants, the standard plaintiffs must satisfy is higher. “[W]hen the preliminary injunction is ‘mandatory rather than prohibitory in nature,’ th[e] Court’s ‘application of this exacting standard of review is even more searching.” Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013) (quoting In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003)).
“Mandatory preliminary injunctions [generally] do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief.” Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980); see Calvary Christian Ctr. v. City of Fredericksburg, 800 F. Supp. 2d 760, 765 (E.D. Va. 2011) (‘The Fourth Circuit has viewed mandatory relief with caution . . . .’). “That is to say, a mandatory preliminary injunction must be necessary both to protect against irreparable harm in a deteriorating circumstance created by the defendant and to preserve the court’s ability to enter ultimate relief on the merits of the same kind.” Int’l Labor Mgmt. Corp. v. Perez, No. 1:14CV231, 2014 U.S. Dist. LEXIS 57803, *45-46 (M.D.N.C. Apr. 25, 2014) (quoting In re Microsoft Corp. Antitrust Litig., 333 F.3d at 526).
ARGUMENT I. PLAINTIFFS HAVE NOT DEMONSTRATED THAT THEY ARE LIKELY
TO SUCCEED ON THE MERITS. The plaintiffs have requested that this Court order a number of different mandatory and prohibitive measures against the State Defendants on the grounds that the State’s elections statutes related to registration, absentee voting, and in-person voting
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unconstitutionally restrict their access to the ballot—particularly in light of the COVID-19 pandemic.
The State Defendants do not doubt that the COVID-19 pandemic has burdened voters and voter-education organizations like the plaintiffs. Indeed, it has burdened the State Defendants as well, causing them to devote significant time and resources to managing the COVID-19 pandemic and creating alternative plans and procedures to ensure that every eligible North Carolinian has the opportunity to vote. But while the plaintiffs may have heightened concerns and even reasonable policy disagreements with North Carolina law, they have not shown that failure to adhere to the plaintiffs’ judgment about best practices is a constitutional violation requiring injunction.
State election regulations often “implicate substantial voting, associational and expressive rights protected by the First and Fourteenth Amendments.” Pisano v. Strach, 743 F.3d 927, 932 (4th Cir. 2014) (citation omitted). “All election laws, including perfectly valid ones, ‘inevitably affect[]—at least to some degree—the individual’s right to vote and his right to associate with others for political ends.’” Sarvis v. Alcorn, 826 F.3d 708, 716 (4th Cir. 2016) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). To identify those laws that unconstitutionally burden rights guaranteed by the First and Fourteenth Amendments, courts weigh: (1) the character and magnitude of the asserted injury to First and Fourteenth Amendment rights against (2) the State’s interests and justifications for the burden imposed. Burdick v. Takushi, 504 U.S. 428, 434 (1992). If the burden to a plaintiff’s rights is severe, courts apply strict scrutiny to the plaintiff’s claim. Pisano, 743 F.3d at 936. If the burden to a plaintiff’s rights is modest, courts simply ensure that “order,
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rather than chaos, . . . accompany the democratic process.” McLaughlin v. North Carolina Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995).
A. Violations of Plaintiffs’ Constitutional and Federal Statutory Rights The plaintiffs ask this Court to preliminarily enjoin the State Defendants from violating their “constitutional and federal statutory rights with respect to any election in the state for the November 3, 2020, general election.” DE 31 at 6. The plaintiffs do not support this broad request for relief with argument in their brief. Nevertheless, the State Defendants assure this Court that they have no intention of seeking to violate any North Carolinian’s constitutional or federal statutory rights—with respect to voting or any other action. Moreover, it is axiomatic that an injunction must “describe in reasonable detail . . . the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1)(C). One of the purposes of this requirement is to “give parties subject to the injunction proper notice of the prohibited conduct.” Scardelletti v. Rinckwitz, 68 F. App’x 472, 479 (4th Cir. 2003). A general direction not to violate constitutional or statutory rights does not give adequate guidance to the parties. See TFFI Corp. v. Williams, No. 8:13-cv-01809, 2013 U.S. Dist. LEXIS 165029, at *13 (D. Md. Nov. 20, 2013) (declining to issue an injunction prohibiting the defendants from “destroying or altering documents” because the request was not made “with the requisite degree of specificity”). Accordingly, the plaintiffs’ request for such an injunction should be denied.
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B. Voter Registration Deadlines The plaintiffs claim that the COVID-19 pandemic renders North Carolina’s voterregistration deadline an unconstitutional burden on the right to vote. But the voter registration deadlines impose no more than a modest burden when weighed against the State’s legitimate interests in elections administration. North Carolina’s voter-registration requirement allows a voter to register by the voter registration deadline (25 days before the election) or in-person at a one-stop site. Bell Decl., ¶ 20. The plaintiffs argue that the State Defendants are burdening their right to organize or vote by not allowing remote (i.e., by mail or online) voter registration at the same time the State Board of Elections allows in-person registration at a one-stop site. Deadlines like these have been held by this Circuit as—at most—a modest burden because voters will have had ample time and opportunity before the election to register. See, e.g., Pisano, 743 F.3d at 936 (holding that filing deadlines for new political parties to nominate candidates impose only a modest burden because candidates will have had ample time and opportunity to collect the required number of signatures). The plaintiffs have also failed to show that the COVID-19 pandemic renders these burdens more severe. The plaintiffs argue that the COVID-19 pandemic has limited voter registration opportunities. DE 10 at 18. But they have not shown why their voter registration initiatives—which are reportedly in-person—cannot succeed under the current statutes with reasonable health precautions and to include encouragement to register by the deadline or register in-person at a one-stop site.
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Because the burden of the voter-registration deadline is modest, the plaintiffs must show that the government’s interests in maintaining these deadlines is unjustified. They cannot.
Every voter in North Carolina must have her address verified before her vote may count. Bell Decl., ¶ 20. A voter who registers by the regular deadline must be verified by mail—if the verification does not return as undeliverable, the county board will register the voter. Id., ¶ 20. Voters who register at one-stop sites must show proof of residence when they register and are also subject to the mail verification process. Id., ¶ 21. They also vote retrievable ballots in the event that their eligibility is challenged. Id., ¶ 21.
One of the justifications for the 25-day deadline is that it ensures that voters receive verification mailings—voters who register after the 25-day deadline may not receive their mailings before Election Day. Id., ¶ 21.
The 25-day deadline is also important to reduce voter confusion. After the registration deadline, county boards of elections prepare electronic pollbooks that contain a list of registered voters in the county. Id., ¶ 22. A voter who registers after the registration deadline would not appear on pollbooks. Id., ¶ 22. Voters may be required to reregister if they opt to vote early, which would cause confusion, or may not find themselves on the pollbooks at all on Election Day, which would disenfranchise them. Id., ¶ 22.
Finally, the 25-day deadline is important to allow the State and county boards of elections to process registration forms. Typically, a very high volume of forms are received at the end of the voter registration deadline. Id., ¶ 23. County boards of elections will not
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be prepared to handle the volume of applications that, based on past data, the State Defendants anticipate arriving close to Election Day. Id., ¶¶ 23-26.
The need for finality, reducing voter confusion, and ensuring that all voters produce proof of residence are all important justifications for the registration deadline. These justifications outweigh the modest burden imposed by a deadline 25 days before Election Day.
C. Establishing Online Voter Registration Processes with the DMV and DHHS to Extend After the Voter Registration Deadline
The plaintiffs also request that the Court order the DMV and DHHS to “process voter registrations online and receive in their offices up until and including 5:00 pm on the last Saturday of early voting” for the 2020 general election. DE 31 at 6. The lack of an online registration process with the DMV and DHHS to extend beyond the voter registration deadline, however, does not pose undue burden on a North Carolinian’s right to vote.
As discussed above, the voter registration deadline does not present an undue burden on the right to vote. Accordingly, just as this Court should decline to order the State Board of Elections to extend the voter registration deadline, it should also decline to order DMV and DHHS to continue to process voter registrations online after the deadline.
The plaintiffs’ request also misapprehends the nature of DMV’s and DHHS’s roles in voter-registration-application processing. When voters register to vote through DMV’s services, DMV gathers all applications at the close of each business day and transmits them immediately to the State Board of Elections—whether the DMV receives these applications
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before the deadline or after the deadline. Exh 2, Declaration of T. Jessup (Jessup Decl.), ¶¶ 5-8. DHHS follows a similar protocol—when voters register to vote through DHHS, DHHS promptly transmits the applications to the county boards of elections. N.C. GEN. STAT. § 163-82.20. Neither DHHS nor DMV does any further processing of voter registration applications. Therefore, because neither DHHS nor DMV enforces the voter registration deadline, this Court should not require that the DMV and DHHS, for the first time, begin performing elections-administration functions that the State Board of Election typically performs.
Moreover, plaintiffs are not likely to succeed on the merits because the defendants they have sued cannot provide the relief they request. Plaintiffs specifically allege that DHHS should offer online voter registration through “the Division of Social Services, Division of Public Health/WIC, and Division of Services for the Blind—all divisions of Defendant N.C. Department of Health and Human Services . . . .” (Amended Complaint ¶ 53) Plaintiffs fail to acknowledge that although the Division of Services for the Blind is a DHHS agency, the WIC program and public assistance programs are administered by local county agencies, not the DHHS. (Exh 3, Declaration of Tonya L. Prince ¶ 4; Exh 4, Declaration of Mary Anne Burghardt ¶ 5)
D. Absentee Ballot Request Forms The plaintiffs also challenge the requirement that voters submit a completed version of the State’s absentee ballot request form, and argue that the requirement will unconstitutionally burden the right to vote in the context of the COVID-19 pandemic. But
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the requirement to complete the State’s request form imposes no more than a modest burden when weighed against the State’s legitimate interests in elections administration.
North Carolina law requires that a voter who wishes to vote absentee submit information sufficient to verify the voter’s name, address, date of birth, driver’s license/ID card/Social Security Number, and signature. N.C. GEN. STAT. § 163-226(b). The State Board of Elections’ form contains requests for all of this information and conforms with North Carolina law. And for 2020, voters may request by phone that a blank absentee ballot request form be sent to them. 2020 N.C. Sess. Laws 17. When a voter finishes filling out her absentee ballot request form, she may email, fax, mail, or hand-deliver the form to a county board of elections. 2020 N.C. Sess. Laws 17. In addition, an online version of the request form will be available on 1 September 2020. Bell Decl., ¶ 30.
The plaintiffs do not challenge the underlying requirement that a voter verify certain personal information while requesting an absentee ballot. Instead, they challenge the fact that a request form is required, arguing that the form presents a severe burden because certain voters lack the means to print it. DE 10 at 23.
Notably, however, in recognition of this concern, the State Board of Elections does not require that voters print out the form themselves. Any individual may copy and distribute the official form, as long as it is blank. Therefore, the same organizational plaintiffs who wish to assist with voting can make these request forms available for voters who may not be able to print out the form themselves. In addition, for elections in 2020, voters may request by phone that an absentee ballot request form be sent to them. 2020 N.C. Sess. Laws 17, § 5(a). And the State Board is planning to include a blank form in the
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Judicial Voter Guide mailed to every North Carolina household. Bell Dec., ¶ 11. Therefore, the burden on voters to access a printer and print the form for themselves has been minimized, if not eliminated altogether.
Moreover, even during the COVID-19 pandemic, another court has held that the burden imposed by requiring voters to obtain a printout of the State’s absentee-ballot request form or fill out the form online and then email, fax, mail, or deliver the request form to a county board of elections is, at most, modest. See, e.g., League of Women Voters v. LaRose, No. 2:20-cv-1638, 2020 U.S. Dist. LEXIS 91631, at *20-21 (S.D. Ohio Apr. 3, 2020) (holding that law requiring voters to submit an absentee ballot request form only through mail but allowing the form to be printed or requested online or by phone creates “at most” a modest burden on the right to vote).
In light of these modest burdens, the government’s interests in reducing voter confusion by ensuring that all absentee ballot requests comply with North Carolina law and can be processed in a timely fashion are entirely justified. See League of Women Voters v. LaRose, 2020 U.S. Dist. LEXIS 91631 at *23 (recognizing as adequate justification the need to properly verify a voter’s identity and a voter’s signature and sufficient to not allow people to request absentee ballots by phone or online). The State Board’s form contains provisions for voters to fill in all of the information required by North Carolina law to receive an absentee ballot. Bell Decl., ¶ 28. The form is also accompanied by instructions that indicate how to submit the form and when a voter may receive assistance and from whom. Id., ¶ 27. Requests received on forms other than those created by the State Board
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of Election, as the plaintiffs request, may be invalid—increasing voter confusion and frustration. Id., ¶ 29.
The need to reduce voter confusion and frustration and follow North Carolina law are all important justifications to require that absentee voters fill out the State Board’s form either online or in print and return the form by email, fax, mail, or in-person delivery. These justifications outweigh the modest burden imposed by the State’ absentee-ballot request form.
E. Establishment of Mechanism to Request Absentee Ballots by Phone As noted above, North Carolina law allows absentee ballot request forms to be requested by phone, for the 2020 general election. The plaintiffs request that the Court go further and require the State Defendants to allow voters to skip the process of making a written ballot request altogether, and instead be able to directly request ballots by phone. DE 31 at 7. As discussed above, the burden placed on an absentee voter to fill out a request form is minimal—particularly when weighed against the State interest in requiring absentee voters to verify certain personal information before ballots are sent to them. Accordingly, the plaintiffs cannot show that the State Defendants’ failure to provide an alternative to modestly burdensome requirements creates an unconstitutional burden. Moreover, requiring the State Defendants to allow absentee ballot requests to be made by phone, on the current record, would impair the State’s interest in verifying voters’ personal information. As discussed above, the plaintiffs do not challenge the underlying requirement that a voter verify certain personal information before obtaining an absentee ballot. They ask
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that voters be able to do so by phone. One of the statutorily required fields on an absentee request form is the signature of the voter or the voter’s near relative or verifiable legal guardian. N.C. GEN. STAT. § 163-230.2(a). Allowing ballot requests to be made by phone would not allow for receipt of a relevant signature. Without a signature, the county board is not permitted, under state law, to send an absentee ballot to the voter. Id.; Bell Decl., ¶ 36. Without modifying the statutory requirements for absentee ballot requests, ordering the State Defendants to allow absentee ballot requests by phone would force the State Board of Elections and county boards to ignore the signature requirement in state law.
F. Proof of Residency Documents The plaintiffs also ask this Court to require that election officials accept “any proof of residency document acceptable under the Help America Vote Act (HAVA) as acceptable forms of identification with absentee ballot requests.” DE 31 at 7. North Carolina differs somewhat from HAVA and requires that an absentee voter include one of the following: the number of the voter’s North Carolina driver’s license, learner’s permit, or provisional license; the number of the voter’s special identification card for nonoperators of vehicles; or the last four digits of the voter’s social security number. N.C. GEN. STAT. § 163-226(b). The plaintiffs fail to describe why requiring this information is burdensome to them. Nor is it clear why the COVID-19 pandemic would heighten any burden. The State Defendants note that Bell has recommended to the North Carolina General Assembly that any HAVA document be accepted as part of an absentee ballot request form, and agree that such a provision would be sound policy. Bell Decl., ¶ 9. However, courts
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have denied motions for preliminary injunctions where plaintiffs have argued that requiring proof of residency and proof of voter identification for absentee ballot applications in light of the COVID-19 pandemic are unconstitutional burdens on the right to vote. See, e.g., Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 48394, *20 (W.D. Wisc. Mar. 20, 2020). The plaintiffs’ request for a preliminary injunction on this point should be denied.
G. Limits on Assistance with Absentee Ballot Requests The plaintiffs also argue that the statutory limits placed on assistance with absentee ballots unduly burden voters by preventing them from receiving assistance to navigate the absentee ballot process. DE 10 at 23-24. But the restrictions on assistance with absentee ballots are a modest burden when weighed against the State’s interests in preventing voter fraud. The State’s restrictions on assistance with absentee ballots limit the number of people who are permitted to assist with ballot requests to: (a) the voter, (b) a close relative or legal guardian, or (for 2020) (c) a member of a multipartisan assistance team trained and authorized by the county board of elections. N.C. GEN. STAT. §§ 163-226.3, -227.2, 230.2; 2020 N.C. Sess. Laws 17. And for voters who need assistance due to blindness, disability, or inability to read or write and there is not a close relative or legal guardian available to assist, they may request any other person to provide assistance in requesting ballots. N.C. GEN. STAT. § 163-230.2(e1). The plaintiffs claim that these restrictions prevent voters from receiving needed assistance.
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The restrictions on assistance do not categorically bar assistance—they merely limit the people who may assist a voter requesting an absentee ballot. Moreover, these restrictions have been loosened in light of the COVID-19 pandemic. For 2020, a member of a multipartisan assistance team may assist any voter with requesting an absentee ballot, returning the request, marking the absentee ballot, and serving as a witness. 2020 N.C. Sess. Laws 17.
While the plaintiffs claim that the restrictions render voters virtually helpless, they have not provided evidence to suggest that a large proportion of voters who need assistance with absentee ballot requests will not be able to receive that assistance from a close relative or legal guardian or a member of a multipartisan team in 2020—with one exception.
The plaintiffs claim that the availability of multipartisan teams is inadequate in certain counties and that, as a result, voters are left without assistance. DE 10 at 24. This concern, however, is speculative because county boards of elections and the State Board of Elections have anticipated the increased need for multipartisan assistance teams this fall and are already taking steps to expand the recruitment and promotion of multipartisan assistance teams by devoting significant additional funding provided under the CARES Act and HAVA for these efforts. 2020 N.C. Sess. Laws 17.
In light of the measures that the State has already taken to mitigate the burden placed on absentee voters needing assistance with ballot requests, the restrictions, which serve an important state interest in preventing voter fraud and increasing confidence in elections, are reasonable.
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In 2005, the Commission on Federal Elections Reform, a bipartisan commission, cautioned that “absentee ballots remain the largest source of potential voter fraud . . . . Absentee balloting is vulnerable to abuse in several ways: . . . Citizens who vote at home, at nursing homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation.” Comm’n on Fed. Elections Reform, Building Confidence in U.S. Elections 46 (2005). The Commission went on to explain that states should “reduce the risks of fraud and abuse in absentee voting by prohibiting ‘third-party’ organizations, candidates, and political party activists from handling absentee ballots.” Id. As part of its formal recommendation, the Commission stated: “States and local jurisdictions should prohibit a person from handling absentee ballots other than the voter, an acknowledged family member, the U.S. Postal Service or other legitimate shipper, or elections officials.” Id. at 47.
North Carolina’s restrictions on absentee ballot assistance do just that: they reduce the risk of fraud and abuse in absentee voting by prohibiting anyone who is not the voter, a near relative, a legal guardian, the U.S. Postal Service, or elections officials and members of a multipartisan team trained and authorized by the county board of elections from engaging with absentee ballot requests. 2020 N.C. Sess. Laws 17. The assistance restrictions are part of a larger statutory scheme designed to minimize the chance of fraud. The other aspects of the larger statutory scheme include requiring voters to verify personal information, requiring certifications under penalty of perjury, and prohibiting falsifications of information on the ballots. N.C. GEN. Stat. §§ 163-274, -275.
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The reasons for these restrictions are not theoretical. As the plaintiffs note, in the 2018 election in the Ninth Congressional District, a political activist hired by the Republican nominee engaged in a coordinated absentee ballot fraud scheme in which he paid employees to pre-fill absentee request forms (sometimes through forgery) and collect absentee ballots from voters and organized employees to fill in incomplete, unsealed ballots in favor of Republican candidates. This scheme resulted in the results of the election for that contest being invalidated, requiring a new election the following year.
When weighed against the state’s interest in promoting confidence in elections and preventing voter fraud, limiting the number of people who can assist with requesting absentee ballots is reasonable and does not unduly burden voters in exercising their right to vote.
The plaintiffs also argue that the limits placed on assistance with absentee ballot request forms violate their rights under the First Amendment to free speech and association. DE 10 at 54.
The State Defendants do not dispute the fact that the organizational plaintiffs and certain individual plaintiffs may benefit from engaging with voters to instruct them on how to fill out absentee ballots. However, the State’s legitimate interests in maintaining public confidence in elections and protecting against fraud are compelling and important interests that warrant the restrictions on who can assist with filling out absentee ballot request forms.
The plaintiffs note that the restriction they challenge did not prevent the 2018 absentee ballot fraud scheme described above. No doubt, the perpetrators of the 2018 absentee ballot fraud scheme violated many laws—including the restrictions on assistance
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with absentee ballots. But the State Defendants are unaware of cases that require statutory schemes to be foolproof to effectuate an important and compelling interest.
The plaintiffs also suggest a number of other laws that the North Carolina General Assembly could have passed in the alternative to address the issue of absentee voter fraud. DE 10 at 33, 34, 59. These policy differences, however, do not create First Amendment violations. North Carolina’s restrictions on assistance with absentee voting requests mirror independent, bipartisan recommendations, are designed to reduce the incidence of absentee voter fraud, and are viewpoint and content-neutral.
Finally, the plaintiffs argue that the assistance restrictions also violate Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act because the restrictions deny some of the plaintiffs their right to vote. As discussed above, the restrictions do not deny voters assistance altogether. They merely limit the number of people who are permitted to come into contact with absentee ballot requests to reduce the chance of voter fraud. Because the plaintiffs have failed to show that the ADA/RA plaintiffs are unable to request the assistance of a close relative, legal guardian, or member of a multipartisan assistance team, they have not been denied the franchise.
H. Witness Certification Requirement The plaintiffs further ask this Court to enjoin enforcement of North Carolina law requiring absentee voters to mark their ballots in the presence of one witness on the ground that it is an undue burden on the right to vote. 2020 N.C. Sess. Laws 17. But they fail to show that this requirement presents a burden sufficient to outweigh the state’s legitimate interests.
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The plaintiffs claim that the witness requirement does “little to prevent fraud while creating mass disenfranchisement.” DE 10 at 32. The State Defendants do not challenge that mass disenfranchisement would constitute a severe—and unconstitutional—burden on the right to vote. But the plaintiffs have failed to prove that the witness requirement would cause mass disenfranchisement.
The plaintiffs note that there are more than 1.1 million single-member households in North Carolina. DE 10 at 26. There is no evidence in the record, however, of what proportion of these single-member households would be unable to comply with the witness requirement. For example, the statistics provided by the plaintiffs do not indicate whether these individuals intend to vote, whether they regularly interact with individuals outside their households, whether these individuals could obtain the required signature without violating the CDC’s social-distancing guidelines by wearing masks and gloves, remaining more than six feet apart, and being physically separated from one another by a window or open doorway. .
The State Defendants agree that it would be prudent as a matter of policy to eliminate the witness requirement. Indeed, Bell suggested to the North Carolina General Assembly that they eliminate the witness requirement for elections in 2020. Bell Decl., ¶ 9. But when weighed against the plaintiffs’ failure to prove that the burden placed by a single-witness requirement is severe, the plaintiffs cannot overcome the government’s interest in instituting this requirement. Many states’ witness requirements for absentee ballots are justified to minimize voter fraud. See, e.g., Thomas v. Andino, No. 3:20-cv01552, 2020 U.S. Dist. LEXIS 90812, at *52 (D.S.C. May 25, 2020); League of Women
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Voters of Va. v. Va. State Bd. of Elections, No. 6:20-cv-00024, 2020 U.S. Dist. LEXIS 79439, at *43 (W.D. Va. May 5, 2020); Bostelmann, 2020 U.S. Dist. LEXIS at *62-63.
To be clear, there is very little evidence of voter fraud in North Carolina. However, courts do not necessarily require that the witness requirement significantly advance the state’s interests to be justified. While the plaintiffs correctly note that the courts in Thomas, Libertarian Party of Illinois v. Pritzker, and League of Women Voters of Virginia all held that the witness requirement for absentee ballots did not significantly advance the state’s interests in preventing voter fraud (DE 10 at 32-34), still other courts have found the opposite—that despite the fact that the challenged requirement does not map closely to the state’s reported interests, preventing fraud is a legitimate and strong interest sufficient to uphold the statute’s constitutionality. See Bostelmann, 2020 U.S. Dist. LEXIS at *64; see also Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) (holding that even though there was no evidence of voter-impersonation fraud in Virginia and that the voter ID law would not prevent any voter-impersonation fraud, the voter ID law could still survive because the state’s interest in protecting against voter-impersonation fraud was a sufficiently valid interest).
In light of the plaintiffs’ failure to show that the witness requirement presents a significant burden and the Court’s preference for granting preliminary injunctions that maintain the status quo rather than create a new one, this Court should deny this request for an injunction. Pashby v. Delia, 709 F.3d at 319.
The plaintiffs also argue that the witness requirement presents an unconstitutional condition on the right to vote because it “will force voters to choose between exposing
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themselves to severe risks to their health and exercising their constitutionally protected right to vote.” DE 10 at 48. But the “unconstitutional conditions” doctrine does not apply here.
“The unconstitutional conditions doctrine forbids the government from denying or terminating a benefit because the beneficiary has engaged in constitutionally protected activity.” Petrella v. Brownback, 787 F.3d 1242, 1265 (10th Cir. 2015). It “vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” Koontz v. St. John’s River Water Mgmt. Dist., 570 U.S. 595, 604 (2013).
But the doctrine only applies if the government jeopardizes a constitutionally protected right. Reedy v. Werholtz, 660 F.3d 1270, 1277 (10th Cir. 2011). In this case, the plaintiffs press the idea that the right to self-quarantine is an exercise of the constitutional right to “bodily integrity.” While the right to bodily integrity is undoubtedly constitutionally protected, the right to self-quarantine does not fall within its ambit.
The concept of “personal bodily integrity” is embodied in the “right to be free of unauthorized and unlawful physical abuse by state intrusion.” Violations do not arise from “bad policy or inaction,” but rather only applies to “the most egregious official conduct.” J.S. ex rel. Simpson v. Thorsen, 766 F. Supp. 2d 695, 705 (E.D. Va. 2011) (quoting Waybright v. Frederick Cty. Md. Dept. of Fire & Rescue Svcs., 528 F.3d 199, 204 (4th Cir. 2008)). Only intrusions that are “shock the conscience” and “nothing less” rise to violations of personal bodily integrity. Waybright, 528 F.3d at 205.
Enforcing the witness requirement does not violate a person’s bodily integrity. The requirement that voters who decline to vote in-person on Election Day and who decline to
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vote in-person early may vote by absentee ballot in the presence of one witness is not a government intrusion that shocks the conscience. As explained above, the plaintiffs have failed to prove that this requirement places a substantial burden on voters. Where there is no substantial burden to voters, the witness requirement does not violate a person’s bodily integrity. The witness requirement does not require that voters choose between two constitutional rights. Accordingly, the unconstitutional conditions doctrine is inapplicable here.
I. Uniform Hours in Precincts The plaintiffs also ask this Court to enjoin the requirement that all one-stop voting sites in a county be open during uniform hours and all sites other than the county board office be open from 8:00 a.m. to 7:30 p.m. DE 31 at 5. The requirement for all sites in a county to have uniform hours was first enforced in 2018 and has been in effect since then. The plaintiffs have not established that the COVID-19 pandemic renders the uniform hours requirement an undue burden requiring a preliminary injunction. The State Defendants acknowledge that the uniform hours requirement may reduce the flexibility of county boards of elections to respond to exigencies that may occur in light of the COVID-19 pandemic. This is why Bell recommended that the North Carolina General Assembly consider waiving the uniform hours requirement, to give county boards of elections flexibility to determine hours as each polling location may be affected differently—and may need to respond differently—to the COVID-19 pandemic. Bell Decl., ¶ 9.
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While the plaintiffs note that since the requirement’s implementation in 2018, 43 counties had to reduce the number of one-stop sites in the 2018 general election compared to 2015 and more than two-thirds of counties were forced to reduce weekend hours, DE 10 at 41, the plaintiffs do not explain why the COVID-19 pandemic would change the burden of this requirement. The plaintiffs have not provided information sufficient to understand the nature of the burdens to voters resulting from the confluence of the COVID-19 pandemic and uniform one-stop hours. Because the plaintiffs bear the burden of showing that voters are unduly burdened sufficient to deny them their First and Fourteenth Amendment rights, their failure to do so requires that this Court deny their request to enjoin this requirement.
J. Residential Requirements for Pollworkers The plaintiffs next ask this Court to enjoin the requirement that at least one precinct assistant be a registered voter of the precinct. DE 31 at 6. The plaintiffs have not established that the residential requirement unduly burdens voters. The plaintiffs claim that the COVID-19 pandemic, combined with the enforcement of the State’s residential requirements for pollworkers, will result in the closure of polling locations in the general election. The State Defendants agree that the law requiring that a majority of pollworkers to reside in the precinct (N.C. GEN. STAT. § 163-41(c)) would have curtailed the flexibility of county boards of elections to staff precincts and would have resulted in polling-place closures. In fact, Bell recommended to the North Carolina General Assembly that they move to eliminate the majority-residential requirement for the 2020 elections. Bell Decl., ¶ 12. The General Assembly subsequently amended this
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requirement—for elections in 2020—to require only that one precinct assistant is a resident of the precinct. 2020 N.C. Sess. Laws 17.
Since the change in law, however, the State Defendants have taken additional steps to ensure that polling places will remain open and unaffected by the COVID-19 pandemic. As recently as June 10, 2020, Bell announced her commitment to county boards of elections to maintain Election Day precincts as they are and avoid precinct mergers whenever possible. Bell Decl., ¶ 12. For the general election, Bell has instructed county boards of elections to keep as many precincts open as possible to prevent long lines and to allow for greater social distancing so that, if a polling place needs to be shut down because of a COVID-19 outbreak, the impact of this closure will be reduced by the widespread availability of other open polling locations. Bell Decl., ¶ 12.
The plaintiffs’ request, therefore, appears to be moot. The plaintiffs press this Court to enjoin this requirement anyway, but fail to show why the new requirement—that only one precinct assistant live in the precinct—places an undue burden on voters. In light of the plaintiffs’ failure to show burden, their request to enjoin the legislative accommodation in light of the COVID-19 pandemic should be denied.
K. Establishment of Contactless Drop Boxes for Absentee Ballots The plaintiffs also ask this Court for a mandatory injunction that would require the State Defendants to establish contactless drop boxes for absentee ballots around the State. The plaintiffs have failed to meet the heightened standard required for the Court to issue a mandatory preliminary injunction: they have not proven that the lack of contactless drop boxes presents an undue burden to voters and their request that this Court intervene to
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short-circuit the State Board of Elections’s expertise and authority to exercise discretion to address the COVID-19 pandemic overlooks these legitimate state interests.
The State Defendants do not challenge that establishing contactless drop boxes would allow voters to deposit ballots while maintaining social distancing and may reduce the strain on North Carolina’s mail infrastructure. DE 10 at 27. But the plaintiffs have not established that such measures are a constitutional requirement.
The plaintiffs’ only factual assertion in support of this claim is that individual voters will have to rely on the U.S. Postal Service to submit their ballots. DE 10 at 27. They have provided no evidence that the U.S. Postal Service is incapable of delivering absentee ballots to North Carolina county boards of elections in the days and weeks leading up to the general election. Nor have the plaintiffs pointed to any cases that suggest that, as a legal matter, failure to provide contactless drop boxes is a per se violation of an absentee voter’s constitutional rights. Instead, the plaintiffs rely on speculation that the U.S. Postal Service will not be able to accommodate the volume of absentee ballots expected and that North Carolina can “easily implement” a drop boxes program. DE 10 at 27. This speculation does not give rise to constitutional burden.
Moreover, asking this Court to intervene in policy matters committed to the State Board of Elections steps on the authority and flexibility of the State’s elections administration officials to respond to crises as they occur. The establishment of drop boxes is a policy consideration that falls squarely within the authority of the State’s elections administration officials—there is no statute or law requiring the use of drop boxes. The State Board of Elections has been engaged since March 2020 in an ongoing process of
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determining the State Board and county boards of elections’ response to the COVID-19 pandemic. Bell Decl., ¶¶ 5-6. The response has included rescheduling the Republican second primary in Congressional District 11, suspending certain requirements, extending certain deadlines, requiring pollworkers and early voting workers to wear personal protective equipment, providing masks to voters, providing sufficient hand sanitizer and cleaning solutions and single-use pens at voting sites, implementing social distancing requirements, and ensuring that there are sufficient polling places and that these polling places are adequately staffed on Election Day. Bell Decl., ¶¶ 8-17. Among the responses to the COVID-19 pandemic that the Executive Director implemented was requiring county board offices that were closed to provide a secure lockbox for voters to deposit electionrelated forms. Bell Decl., ¶ 8.
These responses show that the State Board of Elections and Executive Director are monitoring the situation closely and are responding appropriately to crises as they develop. The implementation of county-board lockboxes shows that the Executive Director is aware that drop boxes may be useful tools to deposit voter material and may indeed be considering implementing dropboxes for the general election. There are a number of considerations that the Executive Director needs to take into account before implementing any alternative procedures, including cost and potential for voter confusion, and this Court should not restrict the Executive Director’s ability to make these decisions using her expertise in elections administration—particularly in light of the fact that the plaintiffs have failed to demonstrate that the lack of dropboxes significantly burdens the franchise.
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L. Establishment of Mechanism to Cure Absentee Ballot Requests and Absentee Ballots
The plaintiffs further request this Court to order the State Defendants to institute a mechanism for voters to cure deficiencies in ballot requests and marked ballots. DE 31 at 7. Like their request for an injunction establishing drop boxes, the plaintiffs have also failed to show a sufficient burden on their right to vote weighed against significant discretionary interests of the State Board of Elections to manage county boards and establish protocols.
The plaintiffs assert that in the March 2020 primary, nearly 15% of submitted absentee ballots were rejected. DE 10 at 36. From this statistic, the plaintiffs conclude that the lack of a standardized curative process is the reason these ballots were rejected. But they provide no evidence to suggest that this is true. The plaintiffs have failed to show that the lack of a standardized curative process places an undue burden on voters’ rights.
But even if the plaintiffs could successfully prove that the lack of a standardized curative process burdened the right to vote, the state’s interests in maintaining flexibility to adjust to crises in real-time present sufficient justification. Like issuing contactless drop boxes, creating a standardized procedure to cure absentee ballots is under the administrative purview of the State Board of Elections. The plaintiffs’ request that this Court intervene to interrupt the State Board’s deliberations and limit the flexibility with which the State Board might respond to changing circumstances on the ground impinges on important state interests in elections administration. Moreover, there is no need for the Court to entangle itself in these discretionary decisions at this time—indeed, the State
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Board is already planning on providing standardized guidance on assisting voters in curing defects in absentee ballots. Bell Decl., ¶ 17. This guidance is forthcoming and will be in place well before county boards will need to implement these procedures. Id.
This guidance also obviates any need for an injunction to address due-process concerns that the plaintiffs might have. The plaintiffs claim that absentee voters are not provided notice of or opportunity to cure defects in their absentee request forms or the ballots themselves. DE 10 at 61. The State Board’s guidance will provide sufficient information to county boards of elections and the public to set standards to cure defects created during absentee voting and educate the public on how to avoid and cure the defects.
M. Require Voters to Be Able to Use Federal Write-In Absentee Ballots In Lieu of Absentee Ballots
The plaintiffs ask this Court to require that voters be able to use federal write-in absentee ballots (FWAB) in lieu of absentee ballots, should their timely requested absentee ballot not arrive in sufficient time to ensure that the ballot will be counted. DE 10 at 7.
The State Defendants agree that failure to receive a timely requested absentee ballot would present severe burdens to the right to vote. Should absentee voters experience difficulty in receiving an absentee ballot in time, the resulting disenfranchisement should be remedied.
But this is exactly why this Court should not intervene to issue an injunction directing the remedy. Rather, the State Board of Elections and its Executive Director should be allowed the opportunity to utilize their expertise to prevent disenfranchisement in ways that are administratively feasible.
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For example, permitting civilian voters to vote by FWAB poses a number of significant administrative concerns. Bell Decl., ¶ 37. The procedure for processing civilian absentee ballots is semi-automated and increases accuracy because the official ballot that a civilian voter receives can be tabulated by machine. Bell Decl., ¶ 37. By contrast, voters who use a FWAB type or handwrite their selections. Bell Decl., ¶ 38. Accordingly, once a FWAB is returned to a board of elections, a bipartisan team must contact the voter and ensure that each selection that the voter made is properly marked on an official ballot. Bell Dec., ¶ 38. This procedure is far more time-consuming. A large increase in the number of FWABs returned, particularly in light of the plaintiffs’ concerns about the ability for the U.S. Postal Service to accommodate all of the anticipated absentee ballots this fall, would be too burdensome for county boards of elections to prepare for, implement, or fund. Bell Decl., ¶ 38.
Requiring FWABs to be available for civilian voters would upend the important governmental interests in ensuring the accuracy of vote counts and fidelity to every voter’s selections. Moreover, it is simply unworkable. This Court should not take up the plaintiffs’ invitation to fashion a remedy using such a blunt instrument.
N. Monitoring Precinct Consolidation The plaintiffs also ask this Court for a mandatory injunction to establish “a more accessible, centralized way in which voters and advocates can monitor precinct consolidation.” DE 31 at 7. But the plaintiffs have not shown that the procedures currently in place are insufficient to educate voters on polling-place relocation.
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The State Defendants do not dispute that voters should be informed about pollingplace relocation in a timely fashion. Where precincts need to be consolidated or polling places need to be relocated for the general election, county boards of elections will mail notice to all affected voters at least 30 days before the election. N.C. GEN. STAT. § 163128(a). Where a one-stop site or polling place needs to be closed or relocated while voting is already ongoing, notice will be posted to the door and voters will be directed to a new voting location both by notice and by a precinct official. Bell Decl., ¶ 16. Each voting place is also required to have an emergency backup plan if voting cannot continue in the usual location and voters are notified of these plans if they need to be activated. Id.
The plaintiffs have not explained, however, why these methods of voter education cause such a burden as to render them constitutionally insufficient. They have not presented evidence to suggest that voters have, in the past, not been properly informed of any changes to precincts and polling places or that changes to precincts and polling places have caused voters to not be able to vote. The plaintiffs’ request for an injunction here is unnecessary—the State Defendants are already informing voters in a timely fashion of changes to precincts or polling places.
O. Voter Education Finally, the plaintiffs ask for a “remedial plan to educate voters regarding their options to register to vote and obtain and cast a ballot.” DE 31 at 8. But, like their request for an injunction that commands the State Defendants to refrain from violating constitutional or statutory rights, the plaintiffs’ request for a plan to educate voters is both unnecessary and unspecific.
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The State Board of Elections is already engaged in a number of voter-education activities, specifically targeted to the process of registering, obtaining, and casting a ballot. For example, the State Board is planning on sending a Judicial Voter Guide to every North Carolina household that includes a blank absentee request form and a link to the State’s online absentee request. Bell Decl., ¶ 11. In addition the guide will inform voters about recent changes to the law and measures that are being taken to ensure voter safety for inperson voting. Id. The State Board will continue to educate voters about exercising the franchise throughout the summer and heading to Election Day. Accordingly, there is no need for this Court to intervene to command that the State Defendants do what they are already doing.
Moreover, the plaintiffs’ request is too unspecific to give the State Defendants notice of what is required of them—particularly when they are already engaged in the very activities the plaintiffs seek to mandate.
*** The plaintiffs have failed to demonstrate that they are likely to succeed on the merits of their claims. II. PLAINTIFFS HAVE NOT DEMONSTRATED THAT THEY WILL SUFFER IRREPARABLE HARM IF INJUNCTIVE RELIEF IS NOT GRANTED. The second factor of the Winter test requires that plaintiffs demonstrate they will suffer irreparable harm if an injunction is not issued. Winter, 555 U.S. at 20. In Winter, the Supreme Court noted its frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.
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Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441 (1974); O’Shea v. Littleton, 414 U.S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.1, p. 139 (2d ed. 1995) [] (applicant must demonstrate that in the absence of a preliminary injunction, “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”); id., at 154-155 (“A preliminary injunction will not be issued simply to prevent the possibility of some remote future injury”). Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam).
Winter, 555 U.S. at 22.
Plaintiffs have attempted to meet this standard by noting that “this fall the
pandemic’s transmission dynamics and the corresponding risk to voters are highly likely
to be equal to or worse than the current situation.” [Plaintiffs’ Memorandum in Support of
Their Motion for Preliminary Injunction and Request to Expedite, DE 10 at 72.] Plaintiffs
also assert the importance of voting rights. The State defendants agree that voting rights
are of exceptional importance. What plaintiffs fail to take into account, however, is the
ability of the State of North Carolina in general, and the State Board defendants in
particular, to address the challenges posed by the COVID-19 pandemic. As a result, the
irreparable harm that plaintiffs forecast is not assured, but rather is speculative.
As noted supra, plaintiffs amended their complaint twice in the four weeks
following the original filing of the complaint. The Second Amended Complaint was
prompted by the enactment of 2020 N.C. Sess. Laws 17, which mooted a number of
plaintiffs’ original claims and altered other claims. 2020 N.C. Sess. Laws 17 demonstrates
the intent of the State to respond to the pandemic as needed to ensure that the 2020 general
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election proceeds in an orderly fashion and that all voters are able to exercise the franchise. Likewise, Bell and the State Board as a whole have demonstrated a willingness and
determination to exercise her emergency authority appropriately to ensure that elections proceed and that voters are able to vote safely and with confidence. Bell postponed the Republican second primary in CD 11 in order to ensure that it could be held safely and administered effectively, and she temporarily suspended or delayed various deadlines associated with that primary. (Bell Decl., ¶ 8.) She also directed county boards of elections to provide secure lock-boxes in which election related forms could be left if the county board offices were closed. (Bell Decl., ¶ 8.) She is now working with county boards of elections to ensure that voting sites are able to safely accommodate all who choose to vote in person, both in terms of the number of people who might vote there and in terms of poll workers needed. She and the State Board are also taking steps to make sure that mail-in absentee ballots will be available to any voter who wants one. They are including a blank absentee ballot request forms in the Judicial Voter Guide that will be sent to every household in North Carolina. (Bell Decl., ¶ 11.) They will continue to monitor the challenges posed by the pandemic and will respond appropriately. (Bell Decl., ¶ 17.)
It is clear then, that while North Carolinians will indeed still be dealing with the pandemic in November, the State defendants are able to respond in appropriate ways and have demonstrated their determination to do so. Plaintiffs’ argument that they will suffer irreparable harm without an injunction is predicated on an assumption that the State generally, and the Bell in particular, will ignore the challenges presented and do nothing to ensure the election can be held safely and with full participation by all eligible voters.
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There is no basis for that assumption. For this reason, plaintiffs have failed to show that it
is “likely” that they will suffer irreparable harm absent an injunction. Winter, 555 U.S. at
22. At most, irreparable harm is only possible or speculative—a standard explicitly
rejected by the Supreme Court in Winter. The motion for preliminary injunction should,
therefore, be denied.
III. THE EQUITIES TO THE PARTIES AND THE PUBLIC INTEREST WEIGH AGAINST AN INJUNTION.
The final two Winter factors require plaintiffs to demonstrate that the equities tip in
their favor and that an injunction is in the public interest. Winter, 555 U.S. at 20. In cases
involving significant public interest, which unquestionably includes cases involving the
conduct of elections, courts may “consider the balance of the equities and the public interest
factors together.” As the Fourth Circuit has explained:
Even if Plaintiffs are likely to suffer irreparable harm in the absence of a preliminary injunction, we still must determine that the balance of the equities tips in their favor, “pay[ing] particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero—Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982). This is because “courts of equity may go to greater lengths to give ‘relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.’” E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 826 (4th Cir. 2004) (quoting Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552, 57 S. Ct. 592, 81 L. Ed. 789 (1937)). Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 602 (4th Cir. 2017).
Plaintiffs summarily assert that the equities tip in their favor simply because there
is a pandemic. They also summarily assert that an injunction is in the public interest “as
non-parties to this action will stand to benefit from the requested injunction.” [Plaintiffs’
Memorandum in Support of Their Motion for Preliminary Injunction and Request to 42
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Expedite, DE 10 at 78.] However, as the Supreme Court has stated, “any time a State is enjoined by a court
from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct. 1, 3 (2012) (quoting New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). Moreover, the State defendants, as those charged with enforcement of North Carolina’s election laws, represent the public interest in this case, for the laws themselves reflect the public’s interest. See Jackson v. Leake, 476 F. Supp. 2d 515, 530 (E.D.N.C. 2006).
The State defendants have submitted declarations that demonstrate the impracticability of some of the measures plaintiffs seek, and how they are contrary to the public interest. For example, Bell has described how changes to the absentee ballot requirements—including eliminating the witness requirement or instructions as to who may assist the voter—at this stage could result in absentee ballots not being ready in time for the absentee voting period. (Bell Decl., ¶ 19.) This could be particularly problematic given the assumption that demand for mail-in absentee ballots will be higher this year than in previous years; if that assumption proves true, it will be even more important for those absentee ballots and the envelopes in which to mail them to be ready prior to the beginning of the absentee voting period.
Likewise, extension of the voter registration deadline to the last Saturday before Election Day would bypass measures designed to verify voters’ residence. (Bell Decl., ¶ 21.) Perhaps more problematic, voters who register after the 25-day deadline would not appear on the pollbooks for early voting and would have to be asked to register again,
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which could cause confusion and uncertainty. (Bell Decl., ¶ 22.) And the influx of registration forms that would need to be manually scanned into the Statewide Election Information Management System (“SEIMS”)—98,207 registration forms were received in the five days prior to the deadline in 2016—would need to be processed at the same time that elections officials are conducting early voting, and in some counties would need to be done in time for the pollbook to be printed by Election Day. (Bell Decl., ¶ 23.) Plaintiffs’ request that the Court permit the use of the Federal Write-in Absentee Ballot (“FWAB”) presents a similar challenge. FWABs must be duplicated to a ballot that can be tabulated by a machine, which involves a bipartisan team working to accurately duplicate the FWAB to a machine-readable ballot. FWABs are currently allowed for military and overseas voters, and county boards have planned for the bipartisan teams to handle those ballots. However, county boards have not allocated funds or other resources for a significant increase in FWABs. (Bell Decl., ¶ 38.)
Confusion could likewise result if absentee ballot requests are allowed on forms other than those prepared by the State Board. The law requires certain information on the request form. See N.C. GEN. STAT. § 163-230.2(a). There is no way to guarantee that requests not on the State Board’s form will include the necessary information. This could lead to delays in fulfilling requests for absentee ballots, or rejections of those requests. (Bell Decl., ¶ 27-28.)
Finally, much of the relief requested by plaintiffs presents logistical challenges that may be insurmountable. For example, the Plaintiffs’ claim that the burden on DHHS defendants to expand online voter registration is “de minimus” is not accurate. (Amended
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Complaint ¶ 89). As shown through the declarations submitted by DHHS, the DHHS defendants are not equipped to create an online voter registration by the November 2020 election. Additionally, DHHS cannot address, and Plaintiffs fail to acknowledge, that the covered transactions that require voter registration under the NVRA are administered by local county DSS or local WIC agencies, not the Division of Public Health/WIC or the State Division of Social Services. (Declarations of Tonya L. Prince ¶ 4, and Mary Anne Burghardt ¶ 5) Those local agencies are not parties to this matter. The Plaintiffs do not address how local county DSS offices or local WIC agencies computer systems or websites would be integrated with their proposed expanded online voter registration. The Division of Public Health/WIC and Division of Services for the Blind do not even have a clientfacing online portal. (See Exh 5, Declaration of Cynthia Speight and Declaration of Mary Anne Burghardt) Even NC FAST, which has a client-facing portal in ePASS, would not be able to create an online voter registration until after the November 2020 election. (See Declaration of Tonya L. Prince)
Contrary to the Plaintiffs’ assertion, none of these agencies possesses “wet-ink” signatures (ink on paper) as that term is commonly defined. (Declarations of Tonya L. Prince ¶ 8, Mary Anne Burghardt ¶ 11, and Cynthia Speight ¶ 8) The agencies would also have to coordinate and establish agreements with the State Board of Elections to govern this process. Additionally, DHHS has confidentiality requirements that do not allow it to disclose beneficiary information to third parties. These online voter registration systems would have to be tested to ensure that they are working correctly before implementing them for an election.
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Finally, none of these agencies have funding to institute these changes. As the DMV defendants noted, it took them nearly a year to implement its stand-alone voter registration portal and the DMV already had a client facing online portal. (Jessup Declaration ¶¶ 7, 11) NCSBE further supports that it is not possible to create online voter registration through DHHS by the 2020 election. (Bell Declaration ¶¶ 28, 29) Accordingly, asking the DHHS defendants to implement a new system of voter registration without funding and while combating the COVID-19 pandemic in less than four months is not possible.
Likewise, requiring drop-boxes at county board offices or other locations presents challenges of procurement, both of the drop-boxes themselves and also of the land on which to put them. (Bell Decl., ¶ 35.)
In summary, the public interest is that all eligible persons be able to vote in an election that is orderly and free of confusion, and in which the public can have justified confidence. The laws that plaintiffs challenge, including laws recently enacted or amended by the General Assembly, reflect those interests. North Carolina’s election laws also provide mechanisms that enable the State Board and its Executive Director to respond as necessary and appropriate to challenges presented by catastrophes and natural disasters, including pandemics like COVID-19.
By asking the Court not only to enjoin the enforcement of certain laws but also to affirmatively order new election procedures, they seek to have the Court usurp the roles of the officials charged with executing North Carolina’s election laws—officials to whom North Carolina law gives the ability to respond appropriately to the challenges presented by COVID-19. The balance of the equities and the public interest both lean heavily to
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denying the relief sought by plaintiffs. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for a preliminary injunction should be denied.
This the 26th day of June, 2020. JOSHUA H. STEIN Attorney General /s/ Alexander McC. Peters Alexander McC. Peters N.C. State Bar No. 13654 Chief Deputy Attorney General Email: apeters@ncdoj.gov Kathryne E. Hathcock N.C. State Bar No. 33041 Assistant Attorney General Email: khathcock@ncdoj.gov N.C. Dept. of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919) 716-6900 Facsimile: (919) 716-6763
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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1) and the Order entered by the Court on 11 June 2020 [DE 21], the undersigned counsel hereby certifies that the foregoing Memorandum, including body, headings, and footnotes, contains 12,950 words as measured by Microsoft Word.

This the 26th day of June, 2020.

/s/ Alexander McC. Peters Alexander McC. Peters Chief Deputy Attorney General

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EXHIBIT 1

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Civil Action No. 1:20-cv-457

DEMOCRACY NORTH CAROLINA, et )

al.,

)

)

Plaintiffs,

)

v.

)

)

THE NORTH CAROLINA STATE

)

BOARD OF ELECTIONS; et al.,

)

)

Defendants,

)

)

and

)

)

PHILIP E. BERGER, etc., et al.,

)

Intervenors.

)

DECLARATION OF KAREN BRINSON BELL

I, Karen Brinson Bell, declare, that the following information is true to the best of my knowledge and state as follows:
1. I am over 18 years old. I am competent to give this declaration. I have personal knowledge of the facts set forth in this affidavit and have consulted senior-level staff in preparation thereof.
2. I currently serve as the Executive Director of the North Carolina State Board of Elections (“State Board”). I became Executive Director of the State Board effective June 1, 2019. My statutory duties as Executive Director include staffing, administration, and execution of the State Board’s decisions and orders. I am also the chief State election official for North Carolina under the National Voter Registration Act
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of 1993. As Executive Director, I am responsible for the administration of elections in the State of North Carolina. The State Board has supervisory responsibilities for the 100 county boards of elections (“county boards”), and as Executive Director, I provide guidance to the directors of the county boards.
3. Prior to my employment as an Executive Director of the State Board, I spent a significant portion of my professional life working on a wide scope of issues related to election administration, including in the State of North Carolina.
4. I served as an Election Administration Consultant for the Ranked Choice Voting Resource Center from October 2016 until May 2019. I worked part time for the Center from April 2016 to October 2016. Prior to that, I was employed as a Business Development Director/Project Management Director at EasyVote Solutions from April 2015 until September 2016, and as a Director of Elections for the Transylvania County Board of Elections from March 2011 until March 2015. I also worked for the State Board as a District Elections Technician from February 2006 until March 2011.
5. Because the COVID-19 pandemic impacts the conduct of elections and daily operations for the State Board and county boards of elections, the State Board has taken numerous actions in recent week and months to respond to the unfolding pandemic and ensure voters feel safe when they cast their ballot this year, whether they vote on Election Day, at one-stop early voting, or absentee by mail.
6. The first case of COVID-19 was identified in North Carolina on March 3, 2020, the day of North Carolina’s primary election. As Executive Director, I issued
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Numbered Memo 2020-111 on March 15, 2020, to the 100 county boards of elections in North Carolina, updating them on State Board’s responses to the COVID-19 outbreak and providing recommendations to ensure that elections administration could proceed. The memo recommended that county boards conduct board meetings telephonically, if possible, and indicated that I would be extending the deadline for county boards of elections to sort ballots by precinct under G.S. § 163-132.5G by at least 30 days. It also announced the creation of a COVID-19 Task Force, which was formed to discuss both short-term and long-term needs related to the pandemic and voting. The COVID-19 Task Force is composed of state and county elections officials who have provided input regarding legislative recommendations to administer elections during the pandemic, necessary measures for the expected increase in mail balloting as well as efforts that must be taken to ensure the health and well-being of voters and election workers during inperson voting, and considerations for uses and allocation of federal funding among the county boards of elections.
7. On March 12, 2020, I adopted an amendment by emergency rule, effective March 20, 2020, to 08 NCAC 01 .0106 (“Emergency Powers Rule”), to clarify that a disease epidemic such as COVID-19 fits the definition of a natural disaster under the Emergency Powers Rule and N.C.G.S. 163-27.1 (“Emergency Powers Statute”). The existing permanent rule already defined “natural disaster” as a “[c]atrastrophe arising
1 State Board of Elections, Numbered Memo 2020-11, March 15, 2020, available at https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%20202011_Coronavirus%20Response.pdf.
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from natural causes,” but the Emergency Powers Rule clarified that this phrase includes “a disease epidemic or other public health incident that makes it impossible or extremely hazardous for elections officials or voters to reach or otherwise access the voting place or that creates a significant risk of physical harm to persons in the voting place, or that would otherwise convince a reasonable person to avoid traveling to or being in a voting place.” The change also clarified that any such “[c]atastrophe arising from natural causes” must have resulted in either a disaster declaration by the President of the United States or the Governor, a national emergency declaration by the President, or a state of emergency declaration issued under N.C.G.S. 166A-19.3(19). I simultaneously commenced the temporary rulemaking process for a temporary rule with identical language, pursuant to N.C.G.S. 150B-21.1A(a). The Rules Review Commission did not approve the temporary rule and returned it to the agency on June 12, 2020. Pursuant to N.C.G.S. 150B-21.1A, the emergency rule then expired on the same date.
8. On March 20, 2020, as Executive Director I issued an order pursuant to the Emergency Powers Rule and the Emergency Powers Statute rescheduling the Republican second primary in Congressional District 11 from May 12, 2020 to June 23, 2020. The order stayed consideration of election protests until May 20, 2020, extended the deadline for county boards to sort ballots by precinct to May 20, 2020, required county board offices that are closed to provide a secure lock-box for the public to deposit electionrelated forms, and suspended the requirement to keep a log of absentee request forms dropped off in person. The order also permitted the transfer of voters to a non-adjacent precinct if the transfer was related to the COVID-19 pandemic. For the second primary,
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voters in 11 precincts were transferred to non-adjacent precincts, reflecting a total of 9,019 eligible voters transferred.
9. On March 26, 2020, I provided recommendations2 to address electionrelated issues affected by COVID-19 to the North Carolina General Assembly and the Governor. The recommendations included allowing absentee requests to be submitted by fax or email, establishment of an online portal for absentee requests, permitting postage to be pre-paid for absentee ballots, and reducing or eliminating the witness requirement for elections conducted in 2020. In light of the current restrictions on visitors to care facilities, I suggested temporarily modifying the prohibition on employees of hospitals, nursing homes, and other congregate living facilities to allow these individuals to assist voters and serve as witnesses. I also recommended that county boards of elections be allowed flexibility to determine their sites and hours for early voting to allow a tailored response to the COVID-19 pandemic in each county.
10. On June 1, 2020, I issued Numbered Memo 2020-12,3 which provided guidance to the 100 county boards of elections conducting in-person voting for the June 23, 2020 second primary in Congressional District 11 and new primary in Columbus County. The memo established policies to provide a safe experience for voters and elections officials during the COVID-19 pandemic, including requiring pollworkers and early voting workers to wear PPE, including masks, face protection, and gloves, when
2 State Board of Elections, Letter, March 26, 2020, available at https://s3.amazonaws.com/dl.ncsbe.gov/sboe/SBE%20Legislative%20Recommendations_COVID-19.pdf 3 State Board of Elections, Numbered Memo 2020-12, June 1, 2020, available at https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%202020-12_InPerson%20COVID%20Response%20June%2023%20Election.pdf
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appropriate, and to self-screen for symptoms prior to reporting to work. Voters who presented to vote were provided with masks, if they needed one, hand sanitizer, and single use pens and cotton swabs, if voting by ballot marking device. Routine cleanings took place throughout the day at each voting place, and social distancing measures were in place as recommended by the CDC. County boards of elections were encouraged to assign additional roles for precinct officials, including interior line control worker, door control worker, exterior line control worker, and sanitizer worker.
11. Pursuant to N.C.G.S. 163-278.69, the State Board will send a Judicial Voter Guide to every North Carolina household prior to the November general election. The agency is making plans to include a blank absentee request form in the Guide. The form will be on heavier weight paper than the rest of the guide, which is necessary to ensure the form can be readily scanned into the Statewide Elections Information Management System (SEIMS). The Guide will include a link to the absentee request portal that will be available beginning September 1, 2020, as required by Session law 2020-17. It will also inform voters about recent changes to the law and measures that are being taken to ensure voter safety for in-person voting.
12. During a bimonthly webinar with directors of the county boards of elections on June 10, 2020, I announced my commitment to maintaining election-day precincts as they are and avoiding precinct mergers whenever possible for general elections. As discussed above, precinct transfers were permitted in some cases for the Republican second primary in Congressional District 11. I permitted these changes because of the low turnout expected for primary and because of the time frame in which
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the election was taking place, which in some cases made it difficult to secure alternative sites that would allow for social distancing needs. For the general election, it will be important to keep open as many precincts as possible to prevent long lines and to allow for greater social distancing. If a polling place needs to be shut down due to a case of COVID-19, there will be a lessened impact if there are greater number of voting places. Reducing the number of individuals who vote at a given site will also reduce the potential exposure to COVID-19. Additionally, with the passage of Session Law 2020-17, county boards of elections now have greater flexibility to allow non-resident precinct officials to serve, which will help ensure that each polling place remains open even if some current precinct officials decline to serve.
13. For the same reasons, in Numbered Memo 2020-13, issued on June 24, 2020, I strongly encouraged county boards of elections to increase the number of onestop sites for the general election.4 Session Law 2020-17 appropriates funds that may be used for one-stop, and the CARES Act permits funds to be used for additional one-stop sites that are needed due to COVID-19. I stressed that presidential elections have high turnout, and that other states conducting recent elections have experienced long lines. In order to reduce the potential to spread the virus, and because voting may take slightly longer due to the precautions in place, I recommended that county boards also conduct one-stop voting on each day of the 17-day early voting period, including Saturdays and
4 State Board of Elections, Numbered Memo 2020-13, June 24, 2020, available at https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%20202013_One-Stop%20Planning%20for%202020%20General%20Election.pdf.
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Sundays. 14. On June 19, 2020, the State Board announced in a press release that it was
seeking “democracy heroes” to serve as election officials at early voting and on Election Day. A link5 is available on the State Board’s website for individuals to express their interest, which will be provided to the appropriate county board of elections. This effort is part of a broader effort to recruit pollworkers to serve in 2020 general election. Other efforts will include recruiting from veterans’ groups and public and private colleges and universities.
15. The State Board will be launching a new website, which is anticipated to go live in August 2020. The website will present information to voters in a clear, simple manner and highlight key topics, including information about voting during the pandemic and how voters can register and vote in person and absentee. The website redesign has been underway since March 2020. The new site will be hosted by the North Carolina Digital Commons in partnership with the North Carolina Department of Information Technology, who are providing in-depth assistance with the redesign.
16. If a precinct needs to be consolidated or a polling place relocated for the 2020 general election, county boards of elections will mail notice to affected voters at least 30 days prior to the election. N.C.G.S. 163-128(a). If a one-stop site or polling place needs to be closed or relocated while voting is already ongoing, notice would be
5 State Board of Elections, Serve Democracy - Work in Elections Online Form, last accessed June 26, 2020, available at https://forms.office.com/Pages/ResponsePage.aspx?id=3IF2etC5mkSFwzCbNftGbSu5CXmv0RFtQ9-DB1johdUOU4xMU5CMzVVVTJBTVdDN0RGWFBDRkFYVy4u
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posted on the door and voters directed to the new voting location. Depending on the circumstances, a precinct official may also be stationed outside of the old voting place to help direct voters to the proper new voting location. Each voting place is required to have an emergency backup plan if voting cannot continue in the usual location. Additionally, I have directed State Board staff to develop an enhancement to SEIMS that would allow voters from one precinct to vote at another precinct on Election Day if voters had to be transferred due to an emergency. This would allow voting to continue even if the precinct officials at the old precinct could no longer serve due to COVID-19 exposure.
17. The State Board and I, as Executive Director, will continue to monitor the situation with the COVID-19 pandemic so that we can plan and exercise our authority to ensure that voters and pollworkers are safe, that voters are able to vote using their preferred method, and that elections can be administered in an orderly manner. Additional guidance will be issued to county boards of elections, including guidance for absentee voting processes and updated guidance for in-person voting for the November 2020 general election. The absentee guidance we are working on will include a standardized cure process with notice to the voter when their absentee application cannot be approved, as well as standards for legibility, signature verification, witness verification, and processing of ballots. State Board staff also continue to collaborate with State partners, including Emergency Management and the Department of Health and Human Services, to monitor the situation and assess if and when additional actions are necessary.
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Responses to Measures Sought by Plaintiffs Proposal for Elimination of the Witness Requirement
18. Earlier this year, I directed staff at the State Board to begin work to redesign the absentee container return envelope to be more user friendly and help ensure voters understand how to complete the certification so that the ballot will be counted. Staff have worked with the Center for Civic Design, a non-profit organization that seeks to use civic design to simplify and improve the voter experience, to improve the overall design and look of the envelope. On June 12, 2020, as soon as Session Law 2020-17 became law, staff immediately contacted the Center for Civic Design to modify the envelope to remove the second witness and notary portions of the envelope. The schedule for the remaining work on the envelope is as follows:
1) The State Board received an updated envelope design from the Center for Civic Design on June 16, 2020.
2) State and county board staff are currently reviewing and editing the envelope for layout, process, format, and legal compliance. This review is scheduled to be completed around June 30, 2020.
3) The Center for Civic Design will provide the envelope to a third-party vendor to complete the print-ready artwork. State Board staff will review and approve a final proof. This process will take approximately two weeks and be completed by mid-July.
4) Once the envelope is finalized, the file will be provided to the printers used by the State Board and county boards of elections. Approximately half of 10
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the county boards have asked the State Board to print the envelopes for them and provide them directly to the counties. We estimate that the printing and distribution to the county boards of elections will take 4-6 weeks. County boards need to have the absentee envelopes in their possession by mid-August so they have sufficient time to assemble absentee packets. This process includes printing labels and placing them on envelopes in order to ensure the ballots are ready to mail on September 4, 2020, pursuant to N.C.G.S. 163-227.10. If the envelopes are not ready in mid-August, county boards of elections will not be prepared to send out absentee ballots by the September 4, 2020 deadline. 19. Any change to the witness requirement at this time would require that the absentee envelope be redesigned, which would re-start the process for formatting, review, artwork, printing, and distribution. This delay could result in county boards not being able to send ballots to voters who requested them on September 4, 2020. Proposal to Extend Voter Registration Deadline 20. North Carolina law establishes two ways a voter may register. A voter may register by the voter registration deadline, 25 days before the election, or they register to vote in person at a one-stop site. Both processes include methods of verifying that the voter resides at their address. A voter who registers by the regular deadline will be sent a verification, by nonforwardable mail. If the mailing is not returned as undeliverable, the county board will register the voter. If the mailing is returned as undeliverable, the county board will send the voter a second mailing. If the second mailing is also returned
11
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as undeliverable, the voter registration will be denied and the county board will not contact the voter further. N.C.G.S. 163-82.7.
21. The statutes set out a different process to verify the residence of voters who register at a one-stop site. Any voter who registers at one-stop is required to appear in person at a one-stop site and show proof of residence when they register to vote. N.C.G.S. 163-82.6A, as reinstated by NAACP v. McCrory, 831 F.3d 204, July 31, 2016. Documents that show proof of residence include a valid North Carolina drivers license, a photo identification from a government agency, or any of the documents listed in N.C.G.S. 163-166.12(a)(2). A voter who registers at a one-stop site is subject to the mail verification process, with the first mailing required to be sent within two business days of the person’s registering to vote. Same-day registrants also vote retrievable ballots, which may be retrieved by a county board of elections if a timely filed challenge is sustained. Id. A voter who registered during after the 25-day deadline may not receive the verification mailing(s), particularly if they register towards the end of the one-stop period. Allowing voters to register after the deadline without the additional proof of residence would circumvent the safeguards provided by the statute to verify voters’ residence.
22. Extending the voter registration deadline may cause voter confusion, as voters who registered after the usual 25-day deadline would not appear on the pollbooks at a one-stop site. Once the registration books close 25 days before an election, county boards of elections prepare electronic pollbooks for the one-stop sites that contain the list of registered voters in the county. Voters would likely be required to re-register or vote
12
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provisionally, and this could cause confusion and uncertainty about the registration process. This could require voters to stand in additional lines, which would their time at the one-stop site and possible exposure to COVID-19. This is unnecessarily repetitious and burdensome for the voter.
23. Typically, there is a very high volume of forms received at the end of the voter registration deadline. For example, during the five days prior to the 2020 primary election voter registration deadline, 30,646 voters registered between February 3-7, 2020. During the five days prior to the 2016 general election voter registration deadline—the most recent presidential general election—98,207 voters registered between October 1014, 2016. County boards will not be prepared to handle the volume of applications that, based on past data, we anticipate would arrive close to Election Day.
24. If the voter registration deadline were extended, county boards would at the same time be conducting and concluding the final days of one-stop voting. The new registrations would each have to be scanned in and individually data entered into the Statewide Election Information Management System (SEIMS), the State’s voter registration and election management system. This process contrasts with one-stop registrations, for which the one-stop worker has already completed the data entry on an electronic pollbook, allowing the information can be uploaded directly to SEIMS.
25. Once the new registrations are processed, voters are added to the pollbook. Some county boards of elections provide their pollbook lists to the printer on the Saturday night before the election, while others work through the night to provide the lists to the printer on Sunday. Other county boards use electronic pollbooks on Election
13
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Day and begin distributing their laptops to pollworkers on Sunday. Processing tens of thousands of additional voter registrations would require hiring and training additional staff, and funds have not been allocated for this purpose.
26. Voter registration forms received by NVRA agencies must be transmitted to the county board within five days of the voter registration deadline. An extension of the deadline to the last Saturday might result in forms not being timely received or processed, and affected voters would not be on the pollbooks when they went to vote on Election Day. Proposal to Allow Absentee Requests Not on State Board’s Form
27. While supportive of this in concept, I am concerned that requests received on a form other than the State Board’s form would frequently be invalid. The law includes certain requirements that must be included on the form, and many voters will not be familiar with these requirements, especially since the law has changed several times in the past year. The State Board’s form is also accompanied by instructions indicating how to complete the form, how to submit a form, and which voters may receive assistance and from whom.
28. An absentee request form must contain all of the information listed in N.C.G.S. 163-230.2(a), as amended by Section 1.3.(a) of Session Law 2019-239, or it will be invalid:
1) The name and address of the residence of the voter. 2) The name and address of the voter's near relative or verifiable legal
guardian if that individual is making the request. 14
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3) The address of the voter to which the application and absentee ballots are to be mailed if different from the residence address of the voter.
4) One of the following: i. The number of the applicant's North Carolina drivers license issued under Article 2 of Chapter 20 of the General Statutes, including a learner's permit or a provisional license. ii. The number of the applicant's special identification card for nonoperators issued under G.S. 2037.7.
iii. The last four digits of the applicant's social security number. 5) The voter's date of birth. 6) The signature of the voter or of the voter's near relative or verifiable legal
guardian if that individual is making the request. 7) A clear indicator of the date the election generating the request is to be
held, except for annual calendar year requests in accordance with G.S. 163226(b). 29. Additionally, an absentee request is invalid if it is submitted by someone other than the voter, the voter’s near relative or verifiable legal guardian, or a trained and authorized Multipartisan assistance team (MAT). N.C.G.S. 163-230.2(c), as amended by Section 1.3.(a) of Session Law 2019-239. Voters who do not use the State Board’s form and accompanying instructions may not know about this limitation and risk having their absentee requests rejected. 30. Beginning on September 1, 2020, voters will also have the option to request
15
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an absentee ballot on the State Board’s portal. This will be another option that voters will have to request an absentee ballot. The portal will walk voters through the process to help ensure they complete all required fields and that their request is valid. The portal will be able to be accessed on a computer or a mobile device with internet access such as a smart phone or tablet. Any group may link to the portal as a way to encourage voters to use this service. Proposal to Require Online Registration at State Agencies Other Than DMV
31. Based on my experience as Executive Director, I do not believe it would be possible to provide voter registration online beyond what is currently offered through DMV for the 2020 general election. In March of 2020, in partnership with the DMV, we rolled out standalone online voter registration to North Carolinians who are DMV customers. Previously, DMV customers could register to vote online if they were conducting a DMV transaction, but they could not register without a DMV transaction. The online voter registration service took approximately 4-5 months of active work to implement, and that was with an agency that was already set up with a pipeline of data related to voter registrations to the State Board. We do not have any similar data sharing with DHHS or other state agencies.
32. When a customer registers to vote online through DMV, they authorize their digital signature to be used on the voter registration form. I do not believe that DHHS has digital signatures for all of its customers. The State Board is also not familiar with DHHS’s data structure and whether we would be able to match up information we received with existing voters, a process that is required to check for duplicates.
16
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Proposal to Eliminate Assistance Restrictions for Absentee Requests 33. The implementation of changes to who can assist with the absentee request
would require lead time because the list of who may assist voters with their absentee request is printed on the absentee request form and instructions. A SEIMS enhancement would be required to change the absentee request form and instructions if this change were ordered by the court. It typically takes three to four days for staff to make this type of change, although it may take up to five days if new data needs to be populated to the form. Staff need the finished product at least a week before the release. A SEIMS release is scheduled for August 28, 2020. We would need to receive any change at minimum two weeks prior to that date to allow time for the development and testing process. The agency has 12 other enhancements that been identified prioritized and affect SEIMS and those are already under development. Proposal to Eliminate Uniform One-Stop Hours
34. County boards of elections have been instructed to submit their one-stop plans to the State Board for review by July 31, 2020. Numbered Memo 2020-13.6 The State Board will hold a meeting in late August to consider non-unanimous one-stop plans. We would need to know by the mid-July at the latest of any changes to the law on onestop schedules so the county boards could make changes to their plans and resubmit them to the State Board by July 31, 2020. As outlined in the memo, the State Board needs
6 State Board of Elections, Numbered Memo 2020-13, June 24, 2020, available at https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%20202013_One-Stop%20Planning%20for%202020%20General%20Election.pdf.
17
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three weeks to review submitted non-unanimous plans to analyze and produce the data requested by the appointed State Board for its review. The analysis will include a summary of the changes proposed by the majority and minority plan compared with onestop plans used in the county in recent similar elections, driving time estimates for each proposed site, and a comparison of turnout by day and date for previous similar elections.7 The State Board will hold a meeting during the last week in August to consider adopting plans for counties with non-unanimous plans. Pursuant to N.C.G.S. 163-33(8), notice of voting sites must be published 45 days prior to the election, which is September 19, 2020. Proposal to Require Absentee Drop Doxes
35. I am unsure whether a sufficient supply of droboxes is available at this time because many states have increased voting by mail. If the boxes were obtainable, the procurement process also typically takes several months, and funds were not allocated for this purpose. Unmanned drop boxes must also be affixed to the land, similar to how a U.S. Post Office box is fixed, and this would require additional steps to locate and procure use of the land. I do not believe there is sufficient time complete these processes for dropboxes throughout the state prior to the 2020 general election. Permitting absentee drop boxes would also require changing the rule, 08 NCAC 18 .0102, that requires county boards of elections to maintain a log of each absentee ballot that is dropped off at their
7 By way of example is the data analysis that was staff completed for the Marc 3, 2020 primary election. State Board of Elections, Data Packet, last accessed June 26, 2020, available at https://dl.ncsbe.gov/index.html?prefix=State_Board_Meeting_Docs/2019-12-20/NonUnanimous%20Plans/Data_Packet/.
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office. Proposal to Permit Absentee Requests by Phone
36. Pursuant to Session Law 2020-17, voters can request by phone that a blank absentee request form be sent to them. Absentee request forms may now be submitted by email and fax, in addition to in person and by mail or commercial carrier. The absentee request form requires the signature of the voter or their near relative or legal guardian, and the form is retained as documentation of the request. If requests were permitted by phone, county boards not have documentation signed by the voter or near relative as a record of the request. A lack of documentation could lead to questions about whether an absentee request was valid. Section 8.(a) of Session Law 2020-17 amended G.S. § 163237(d7) to make it a Class I felony for a county board of elections employee to knowingly send out an absentee ballot without a valid request, and allowing requests by phone could raise the possibility that elections workers would be subjected to prosecution under this section. Proposal to Permit Civilian Voters to Vote by Federal Write-In Absentee Ballot
37. Permitting civilian voters to vote by Federal Write-In Absentee Ballot (FWAB) poses administrative concerns. When a civilian voter requests an absentee ballot, that request is linked to the ballot that is sent out, and the ballot envelope contains a unique barcode that is linked to the voter’s record. Once the voter returns the envelope to the county board of elections, the barcode is scanned to pull up the voter’s record in SEIMS. This semi-automated process limits the need to manually enter data, saves time, and increases accuracy. A large increase in the number of FWABs would substantially
19
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increase the time and effort needed to process a returned ballot. 38. Additionally, each FWAB would need to be duplicated onto a ballot that
can be tabulated by a machine. Ballot duplication involves a bipartisan team calling out and double checking each selection that the voter made and ensuring that the selections are then properly marked on a blank official ballot. A civilian voter receives an official ballot that can be tabulated by machine. Voters who use an FWAB, however, type or hand write their selections. Because voters type or in many cases hand write the names of their preferred candidates on the FWAB, rather than filling in the oval or rectangle on the ballot, the ballot duplication process tends to be more involved for FWABs than for voters who mark a standard ballot. A large increase in duplicating the number of FWABs is not something for which county boards have prepared or allocated funds.
39. Permitting civilians to use the FWAB might result in very large increase in in FWABs for the 2020 general election. The number of voters who vote by FWAB in a given election is typically very small. In the 2016 general election, for example, 1,628 total voters voted by FWAB. This represents 0.0341 percent of the voters in that election. In the 2020 primary election, 37 voters voted by FWAB. This represents 0.0017 percent of the voters in that election.
40. There is also a security concern. Because FWABs can be returned electronically, they pose a higher security risk that paper ballots. According to a report issued by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, along with the Election Assistance Commission, Federal Bureau of Investigation, and the National Institute of Standards and Technology, electronic return
20
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of ballots is high-risk.8 Their report does note that “web applications support stronger security mechanisms than email although they are still vulnerable to cyberattacks.”
41. Also, voters who vote by FWAB sign an attestation that they are a military and overseas voter. This affidavit is different than what is required for civilian voters, and it does not include the witness requirement. Personal Protective Equipment (PPE)
42. PPE is provided for in Numbered Memo 2020-12, which is directed at inperson voting for the June 23, 2020 second primary and new election in Columbus County. As stated in the memo, guidance for in-person voting, including PPE, will be revised and updated based on current conditions and recommendations prior to the 2020 general election.
43. My office has and will continue to work with county boards of elections to assist them in procuring PPE. This includes coordinating with Emergency Management at the North Carolina Department of Public Safety to procure gloves, disinfecting wipes, face shields and masks. We also expect to receive a donation of hand sanitizer to supply to county boards of elections statewide for the 2020 general election.
44. Funds have been allocated to pay for PPE. Session Law 2020-17 provided the state match for the federal CARES Act grant, which together total North Carolina has a total of $13,067,636. This money may be used, in part, to purchase necessary PPE for
8 Department of Homeland Security, Risk Management for Electronic Ballot Delivery, Marking and Return, accessed on June 26, 2020, available at https://s.wsj.net/public/resources/documents/Final_%20Risk_Management_for_ElectronicBallot_05082020.pdf?mod=article_inline.
21
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EXHIBIT 2
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Issuances
Jan-20 Feb-20 Mar-20 Apr-20 May-20

Driver License Offices 196,693 183,336 130,691 46,003 62,810

Online 51,405 42,965 54,540 58,770 55,597

DLO Voter Applications

Completed Voter Application

Jan-20

52,716

Feb-20

47,147

Mar-20

31,768

Apr-20

12,161

May-20

17,951

Declined Voter Application 116,136 112,452 82,518 26,902 35,585

Online Voter Applications

Completed Voter Application

Jan-20

18,424

Feb-20

16,739

Mar-20

16,402

Apr-20

17,062

May-20

16,310

Declined Voter Application 38,879 32,702 37,381 41,206 40,085

OVA - Stand Alone Online Voter Applications

Completed Voter Application Declined Voter Application

Jan-20

N/A

N/A

Feb-20

N/A

N/A

Mar-20

748

85

Apr-20

7,317

620

May-20

8,184

713

Updated Voter Application 15,276 13,623 9,050 3,471 4,635
Updated Voter Application 10,926 9,790 1,082 11,082 10,466
Updated Voter Application N/A N/A 504 4,302 4,697

Declined - Already Registered 94,191 91,253 66,699 21,766 27,693
Declined - Already Registered 27,163 22,735 26,523 29,347 27,707
Declined - Already Registered N/A N/A 81 595 680

Unregistered That Submitted Voter Application 37,583 33,756 22,913 8,797 13,416
Unregistered That Submitted Voter Application 7,761 7,071 6,609 6,274 6,109
Unregistered That Submitted Voter Application N/A N/A 244 3,015 3,487

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EXHIBIT 4

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Civil Action No. 1:20-cv-457

DEMOCRACY NORTH CAROLINA, THE

)

LEAGUE OF WOMEN VOTERS OF NORTH )

CAROLINA, DONNA PERMAR, JOHN P.

)

CLARK, MARGARET B. CATES, LELIA

)

BENTLEY, REGINA WHITNEY EDWARDS, )

and ROBERT K. PRIDDY, II,

)

)

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; KEN RAYMOND, 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; DAVID C. BLACK, )

in his 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; THE NORTH

)

CAROLINA DEPARTMENT OF

)

TRANSPORTATION; J. ERIC BOYETTE, in )

his official capacity as TRANSPORTATION

)

SECRETARY; THE NORTH CAROLINA

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES; MANDY COHEN, in her official )

capacity as SECRETARY OF HEALTH AND )

HUMAN SERVICES,

)

)

Defendants.

)

DECLARATION OF MARY ANNE BURGHARDT

Pursuant to 28 U.S.C. § 1746, the undersigned declares, under penalty of perjury, as

follows:

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1. I am over 21 years of age, have not been declared incompetent, and make the statements contained herein based upon the facts presently known to me.
2. I am currently the State Director of the Special Supplemental Nutrition Program for Women, Infants, and Children (“WIC”), in the North Carolina Department of Health and Human Services (“NCDHHS”), Division of Public Health (“DPH”), Nutrition Services Branch, and have been employed in that capacity since June 2015.
3. This position is responsible for planning, implementing, and evaluating the nutrition education and training programs for the Child and Adult Care Food Program (“CACFP”) and the WIC program for the State of North Carolina. The position oversees regional technical assistance, consultation, and monitoring efforts of local public health agencies. The position provides clinical expertise in the area of women’s and children’s nutrition.
4. The Nutrition Services Branch is responsible for administering benefits under the WIC program. Through the WIC program, children up to age 5, pregnant women, breastfeeding women who have given birth in the last 12 months, and women who have given birth in the last six months are provided healthy foods, health care referrals, breastfeeding support, and nutrition education. To be eligible for WIC, an applicant must live in a North Carolina household with an income at or below the stated WIC income eligibility guidelines, be categorically eligible, and have a nutrition risk factor based on height and weight, low iron, or health or diet history.
5. NCDHHS supervises individual agencies in their issuance of food benefits under WIC. There are 82 local county agencies and three non-governmental entities that administer WIC benefits pursuant to contracts with DPH (collectively referred to as “WIC agencies”). A full list of the WIC agencies is attached and incorporated herein as Exhibit A. The workers who administer WIC benefits at these locations are not employed by the State of North Carolina.
2
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6. The non-governmental agencies that provide WIC services are Piedmont Health in Carrboro, Lincoln Community Health Center in Durham, and CommWell Health in Newton Grove. The workers who administer WIC benefits at these locations are not employed by the State of North Carolina or any local government entity.
7. DPH administers the WIC program in accordance with 42 U.S.C. § 1786 and the requirements of 7 C.F.R. §§ 246.1 through 246.28. DPH maintains an agreement (“WIC State Plan”) with the United States Department of Agriculture, Food and Nutrition Service (“USDA”) setting out the responsibilities of DPH in the administration of the WIC program. DPH enters into agreements and negotiates a budget with each local WIC agency in accordance with 7 C.F.R. § 246.6.
8. DPH actively encourages and assists the local county agencies in meeting their voter registration responsibilities. DPH routinely provides voter registration transmittal forms and preference forms (declaration forms) to the local county agencies to prevent any additional cost to the county of printing paper forms. NCDHHS also frequently monitors the county agencies to ensure the correct voter registration questions are being asked. NCDHHS visits each local office at least once every other year and observes between three to five family interactions each visit. The comprehensive monitoring visits are completed by a team of State agency staff. A full report is provided to the agency. A corrective action plan is required for any noted deficiencies in Program operation. Nutrition Services Branch hosts webinars, provides email correspondence, and issues memos regarding program management and any changes in policy. NCDHHS has also worked with the North Carolina State Board of Elections (“SBE”) to ensure county agencies are providing voter registration opportunities to WIC applicants and beneficiaries. SBE and NCDHHS have entered into a Cooperative Agreement which lays out both the SBE’s and the Division of
3
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Public Health’s responsibilities in ensuring the WIC program’s total compliance with the National Voter Registration Act (“NVRA”). Attached and incorporated herein as Exhibit B is the Cooperative Agreement entered into by DPH and SBE in June 2007. See also Settlement Agreement from Action NC, Democracy North Carolina case, June 2018 attached and incorporated herein as Exhibit C.
9. WIC agencies are responsible for determining eligibility for WIC benefits and are responsible for the issuance of WIC benefits.
10. When an applicant applies for WIC benefits at a WIC agency, the clinic employee first asks for family information. The next series of questions involves the voter registration question mandated by the NVRA. At the time of the voter registration question, the applicant’s eligibility has not yet been assessed. Thus, both applicants who ultimately receive benefits and who are denied benefits are offered the opportunity to register to vote.
11. Normally, WIC applicants must apply in person at a local agency. There is no online component to the WIC certification process. No “wet ink signatures” are obtained during the WIC application or certification. Electronic signatures are captured via signature pad configured to interact with the Crossroads system. Given the recommendations by the Centers for Disease Control and Prevention to control the impact of the COVID-19 epidemic through means of social distancing, the USDA’s Food and Nutrition Service (FNS) understands that normal clinic operations that require employees, participants and applicants to physically come into the clinic create an undesirable risk and that there are mandatory clinic closures in some areas. A waiver of physical presence removes a requirement that under current circumstances could prevent or impede the provision of essential Program services to participants. North Carolina has elected to implement this waiver.
4
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In accordance with section 2203(a)(1)(A)of the Families First Coronavirus Response Act (H.R. 6201), State agencies may request that USDA waive the physical presence requirement during any portion of the emergency period through September 30, 2020. Current approvals are provided to North Carolina through July 31, 2020. Month by month extension may be sought. North Carolina WIC will request an extension for the month of August 2020, which has not yet been awarded.
12. WIC benefits may be issued up to a three month cycle. Typically, applicants and participants visit their local county WIC offices to receive nutrition education and food benefit issuance. Upon each visit, county agencies are instructed to ask the applicant if they need to update any information. If the applicant wishes to change their address, they are again offered the opportunity to register to vote. Under current waivers, remote issuance of food benefits is being done through State-assisted issuance.
13. Total North Carolina WIC participation was 225,102 in March 2020. Even if the technical “applicant” for WIC benefits in a minor child, all guardians of record are provided the opportunity to register to vote and are treated as if they are applying for WIC benefits for voter registration purposes.
14. In the event of a subsequent certification of WIC eligibility, the parent, guardian, or caregiver is provided the opportunity to register to vote. The actual procedure that WIC agencies use to process applicants for WIC benefits may vary slightly from county to county, but all WIC agencies use a system known as Crossroads through which WIC agency staff complete the application process for WIC benefits. During the application process, Crossroads prompts the WIC agency staff to ask about voter registration. This portion of the application must be completed in order to proceed further in the application. The system requires an answer of 1) declined, 2)
5
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form provided, 3) ineligible, or 4) registered. This system ensures that voter registration is always considered during contact with applicants, participants, and parents/guardians/caretakers.
15. Crossroads is not a client-facing platform. Crossroads is the management information system used to administer the WIC Program. Local agency staff input, save, and maintain participant information. There is no ability to offer online voter registration directly to clients as requested by Plaintiffs under the current structure.
16. Crossroads build and release schedules are established through January 2023. COVID-19 has delayed the most recent build promotion. Build content is established 9 – 18 months prior to projected releases. Content is determined by federal regulation changes, business impact to the Program, and technology or security updates. The ability to define, fund, and schedule significant system changes is limited. To create a participant facing component of Crossroads would be a major undertaking. The earliest the WIC program could implement an online voter registration requested by Plaintiffs through Crossroads is the first quarter of 2022. This deadline assumes that the project is fully funded, and that WIC obtains and may legally use electronic signatures for online voter registration forms.
15. DPH does not have the authority to hire, fire, or discipline county WIC employees. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of
the United States of America that the foregoing statements are true and correct.
[The remainder of this page is left intentionally blank, with signature on following page]
6
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This the 25th day of June, 2020.

______________________________ Mary Anne Burghardt State Director, Special Supplemental Nutrition Program for Women, Infants, and Children (“WIC”) Division of Public Health, Nutrition Services Branch North Carolina Department of Health and Human Services

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA,

)

THE LEAGUE OF WOMEN VOTERS )

OF NORTH CAROLINA,

)

DONNA PERMAR, JOHN P. CLARK, )

MARGARET B. CATES,

)

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,

)

KEN RAYMOND, 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, DAVID C. BLACK, )

in his 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, THE NORTH

)

CAROLINA DEPARTMENT OF

)

1:20CV457

Case 1:20-cv-00457-WO-JLW Document 59 Filed 06/30/20 Page 1 of 7

TRANSPORTATION, J. ERIC

)

BOYETTE, in his official

)

capacity as TRANSPORTATION )

SECRETARY, THE NORTH

)

CAROLINA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, )

and MANDY COHEN, in her

)

official capacity as

)

SECRETARY OF HEALTH AND

)

HUMAN SERVICES,

)

)

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. )

ORDER The Republican National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”), National Republican Congressional Committee (“NRCC”), and North Carolina Republican Party (“NCRP”) (together, “Proposed Intervenors”) move for this court to reconsider its June 24, 2020 Order, (Doc. 48), denying Proposed Intervenors’ motion to intervene, (Doc. 32). (Doc. 52.) Proposed Intervenors have also asked, in the alternative, for
- 2 -

Case 1:20-cv-00457-WO-JLW Document 59 Filed 06/30/20 Page 2 of 7

leave to file as amici curiae in opposition to Plaintiffs’ amended motion for a preliminary injunction. (Id. at 1.) Plaintiffs and Executive Defendants filed responses in opposition to Proposed Intervenors’ motion. (Docs. 55, 57.)
The court will deny Proposed Intervenors’ motion to reconsider but will grant their request for leave to file as amici curiae and will consider their attached memorandum.
Courts in the Fourth Circuit have routinely looked to the standards governing the reconsideration of final judgments under Rule 59(e) in considering a motion for reconsideration of an interlocutory order under Rule 54(b). See Volumetrics Med. Imaging, LLC, v. Toshiba Am. Med. Sys., Inc., No. 1:05CV955, 2011 WL 6934696, at *2 (M.D.N.C. Dec. 30, 2011). A motion for reconsideration under Rule 54(b) is “appropriately granted only in narrow circumstances: (1) the discovery of new evidence, (2) an intervening development or change in the controlling law, or (3) the need to correct a clear error or prevent manifest injustice.” Pender v. Bank of Am. Corp., No. 3:05-CV-238-MU, 2011 WL 62115, at *1 (W.D.N.C. Jan. 7, 2011). On the other hand, a motion to reconsider is improper where “it only asks the Court to rethink its prior decision, or presents a better or more compelling argument than the party could have presented in the original briefs on the matter.” Hinton v. Henderson, No.
- 3 -
Case 1:20-cv-00457-WO-JLW Document 59 Filed 06/30/20 Page 3 of 7

3:10cv505, 2011 WL 2142799, at *1 (W.D.N.C. May 31, 2011) (internal citations and quotation marks omitted); see also Directv, Inc. v. Hart, 366 F. Supp. 2d 315, 317 (E.D.N.C. 2004) (holding that a motion to reconsider is not proper when it “merely asks the court to rethink what the Court had already thought through — rightly or wrongly” (internal citations and quotation marks omitted)). For the following reasons, this court finds the motion should be denied.
Proposed Intervenors argue, regarding intervention as-ofright, that this court “misconstrued the Republican Committees’ interests in opposing Plaintiffs’ motion for a preliminary injunction,” and that they instead “seek to preserve North Carolina’s voting laws” in order to participate in voter registration, voter education, and get-out-the-vote activities. (Doc. 53 at 5.)1 However, Proposed Intervenors concede that they raised this argument in their reply brief, (Doc. 47). (Doc. 53 at 5.) The court finds that Proposed Intervenors’ interests are, at their center, in preserving North Carolina’s voting and election laws, which the court has already found are being adequately represented by Defendants and Defendant-Intervenors.
1 All citations in this Order to documents filed with the court refer to the page numbers located at the bottom right-hand corner of the documents as they appear on CM/ECF.
- 4 -
Case 1:20-cv-00457-WO-JLW Document 59 Filed 06/30/20 Page 4 of 7

(Doc. 48 at 4.) The court therefore finds that Proposed Intervenors “only ask[] the Court to rethink its prior decision, or present[] a better or more compelling argument than the party could have presented in the original briefs on the matter.” Hinton, 2011 WL 2142799, at *1. The court will therefore deny Proposed Intervenors’ motion to reconsider its holding as to intervention as-of-right.
Further, regarding permissive intervention, Proposed Intervenors again argue, as they did in their original motion to intervene, that they plan to conform to the existing schedule and will not disrupt the case. However, to put it more clearly, the Executive and Legislative Defendants are all defending the current voting laws as Proposed Intervenors seek to do by intervening. This court finds that additional examination of witnesses, cross-examination of witnesses, or the presentation of additional evidence, whether in discovery or a hearing, as could occur if Proposed Intervenors’ motion is allowed, would cause unnecessary and undue delay. Proposed Intervenors have identified an interest in the litigation but have not demonstrated an issue or evidence that will not be adequately presented by the existing parties. Duplicative efforts would simply delay the proceedings. The court finds that Proposed Intervenors “merely ask[] the court to rethink what the Court
- 5 -
Case 1:20-cv-00457-WO-JLW Document 59 Filed 06/30/20 Page 5 of 7

had already thought through — rightly or wrongly.” Directv, Inc., 366 F. Supp. 2d at 317. The court will deny Proposed Intervenors’ motion to reconsider the court’s holding denying permissive intervention.
Finally, the court will approve Proposed Intervenors’ request to participate as amici curiae in this case. Although there is no Federal Rule of Civil Procedure that applies to motions for leave to appear as amicus curiae in a federal district court, Rule 29 of the Federal Rules of Appellate Procedure applies to amicus briefs at the federal appeals level. See Am. Humanist Assoc. v. Md.-Nat’l Capital Park & Planning Comm’n, 303 F.R.D. 266, 269 (D. Md. 2014) (collecting cases). That rule indicates that amici should state “the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.” Fed. R. App. P. 29(a)(3)(B).
Here, Plaintiffs object to Proposed Intervenors’ motion, arguing that the arguments in Proposed Intervenors’ proposed memorandum mirror those already made by Defendants in their own briefs, and that approving Proposed Intervenors’ request will further burden Plaintiffs’ workload. (Doc. 55 at 10–11.) Executive Defendants object to Proposed Intervenors’ motion, asserting they “offer no change in controlling law or newly
- 6 -
Case 1:20-cv-00457-WO-JLW Document 59 Filed 06/30/20 Page 6 of 7

discovered evidence to support reconsideration of the denial of their Motion to Intervene.” (Doc. 57 at 4.)
The court finds Proposed Intervenors “have demonstrated a special interest in the outcome of the suit,” Am. Humanist Assoc., 303 F.R.D. at 269, that the matters discussed in the brief are relevant to the case’s disposition, and that the motion is timely. Accordingly, Proposed Intervenors will be permitted to participate as amici curiae, and the court will consider the proposed memorandum.
IT IS THEREFORE ORDERED that Proposed Intervenors’ Motion for Reconsideration, (Doc. 52), is DENIED with regard to the motion to reconsider and GRANTED with regard to the request for leave to file amici curiae brief.
This the 30th day of June, 2020.
__________________________________ United States District Judge
- 7 -
Case 1:20-cv-00457-WO-JLW Document 59 Filed 06/30/20 Page 7 of 7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Civil Action
No. 20-cv-00457
LEGISLATIVE DEFENDANTS’ MOTION TO DISMISS IN PART PLAINTIFFS’ SECOND AMENDED
COMPLAINT

Defendants, and

Case 1:20-cv-00457-WO-JLW Document 71 Filed 07/02/20 Page 1 of 4

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,
Legislative DefendantIntervenors.
Case 1:20-cv-00457-WO-JLW Document 71 Filed 07/02/20 Page 2 of 4

LEGISLATIVE DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT IN PART
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Legislative Defendants respectfully move for this Court to dismiss counts 1, 2, 3, and 4 of Plaintiffs’ second amended complaint (Doc. 30). The motion should be granted for the reasons stated in the accompanying brief in support.

Dated: July 2, 2020
/s/ Nicole J. Moss Nicole J. Moss (State Bar No. 31958) COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 nmoss@cooperkirk.com
Local Civil Rule 83.1 Counsel for Legislative DefendantIntervenors

Respectfully submitted,
/s/ David H. Thompson David H. Thompson Peter A. Patterson Steven J. Lindsay* COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 dthompson@cooperkirk.com
Counsel for Legislative Defendant-Intervenors
*Notice of Appearance Forthcoming

1 Case 1:20-cv-00457-WO-JLW Document 71 Filed 07/02/20 Page 3 of 4

CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on the 2nd day of July, 2020, she electronically filed the foregoing Legislative Defendants’ Motion To Dismiss in Part Plaintiffs’ Second Amended Complaint with the Clerk of the Court using the CM/ECF system, which will send notification of such to all counsel of record in this matter.
/s/ Nicole J. Moss Nicole J. Moss
Case 1:20-cv-00457-WO-JLW Document 71 Filed 07/02/20 Page 4 of 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Civil Action
No. 20-cv-00457
BRIEF IN SUPPORT OF LEGISLATIVE DEFENDANTS’ MOTION TO DISMISS IN PART PLAINTIFFS’ SECOND AMENDED
COMPLAINT

Defendants, and

Case 1:20-cv-00457-WO-JLW Document 72 Filed 07/02/20 Page 1 of 39

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,
Legislative DefendantIntervenors.
Case 1:20-cv-00457-WO-JLW Document 72 Filed 07/02/20 Page 2 of 39

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES..........................................iii
INTRODUCTION AND STATEMENT OF MATTER BEFORE THE COURT AND FACTS.......................................................1
QUESTION PRESENTED..............................................2
LEGAL STANDARD..................................................2
ARGUMENT........................................................3
I. The Court Should Dismiss Plaintiffs’ Constitutional Claims Under Rule 12(b)(1) For Lack of Subject-Matter Jurisdiction...............................................3
A. Plaintiffs Lack Article III Standing To Assert Their Vote-Burdening Claims...........................3
1. Voter Registration...............................4 2. The Witness Requirement..........................5 3. Requesting Absentee Ballots......................7 4. Drop Boxes.......................................8 5. Opportunity To Cure..............................8 6. The Home County and Uniform Hours Requirements...9
B. Plaintiffs’ Constitutional Voting Rights Claims Must Be Dismissed Under the Political Question Doctrine.............................................10
II. The Court Should Dismiss Plaintiffs’ Constitutional Claims for Failure To State a Claim Under Rule 12(b)(6)...11
A. The Organizational Plaintiffs Lack Prudential Standing to Assert Their Vote-Burdening and DueProcess Claims.......................................11
B. Plaintiffs’ Vote-Burdening Claims Are Legally Insufficient.........................................12
1. Voter Registration..............................13 2. The Ballot Harvesting Ban.......................14 3. The Witness Requirement.........................17
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4. Drop Boxes......................................19 5. Opportunity To Cure.............................20 6. The Home County Requirement.....................21 7. The Uniform Hours Requirement...................22 C. Plaintiffs’ “Unconstitutional Conditions” Claim Fails................................................24 D. The Ballot Harvesting Ban Does Not Violate the First Amendment......................................26 E. The Due Process Clause Does Not Require the Procedures Plaintiffs Demand.........................28 CONCLUSION.....................................................30
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TABLE OF AUTHORITIES

Cases

Page

Ashcroft v. Iqbal, 556 U.S. 662 (2009)..........................3

Baker v. Carr, 369 U.S. 186 (1962).............................11

Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017)..................6

Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020)...........3

Burdick v. Takushi, 504 U.S. 428 (1992)........................28

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) .........................................11

Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008) ................................19

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)..............55

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) .........................................26

Coal. for Good Governance v. Raffensperger, No. 20-1677, 2020 WL 2509092 (N.D. Ga. May 14, 2020) ....10, 25

Common Cause v. Rucho, 139 S. Ct. 2484 (2019)..................10

David v. Alphin, 704 F.3d 327 (4th Cir. 2013)................2, 3

DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189 (1989) .........................................25

Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002) ................................12

Kendall v. Balcerzak, 750 F.3d 515 (4th Cir. 2011).............30

Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018)................27

Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013) .........................................24

Kowalski v. Tesmer, 543 U.S. 125 (2004)........................11

Lane v. Holder, 703 F.3d 668 (4th Cir. 2012)....................9

Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) ................................12

Libertarian Party of Va. v. Alcorn, 826 F.3d 708 (4th Cir. 2016) ................17, 18, 19, 20, 21

Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013).........3

Matherly v. Andrews, 859 F.3d 264 (4th Cir. 2017)...............6

Mathews v. Eldridge, 424 U.S. 319 (1976).......................29

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Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020).......12, 13, 14, 19 McDonald v. Bd. of Election Comm’rs of Chi.,
394 U.S. 802 (1969) .........................................15 McLaughlin v. N.C. Bd. of Elections,
65 F.3d 1215 (4th Cir. 1995) ................................22 Md. Highways Contractors Ass’n, Inc. v. Maryland,
933 F.2d 1246 (4th Cir. 1991) ................................4 Miller v. Smith, 115 F.3d 1136 (4th Cir. 1997).................24 N.C. State Conference of NAACP v. Cooper,
430 F. Supp. 3d 15 (M.D.N.C. 2019) ..........................13 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250 (4th Cir. 2009) .................................3 Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995)................25 Pisano v. Strach, 743 F.3d 927 (4th Cir. 2014).................13 Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015).................28 Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017)............11 Stevenson ex rel. Stevenson v. Martin Cty. Bd. Of Educ.,
3 Fed. App’x 25 (4th Cir. 2001) .............................25 Summers v. Earth Island Inst., 555 U.S. 488 (2009)...........5, 7 Tex. Democratic Party v. Abbott,
961 F.3d 389 (5th Cir. 2020) ................................15 Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013)....27 Washington v. Glucksberg, 521 U.S. 702 (1997)..............25, 26 Wilkins v. Gaddy, 734 F.3d 344 (2013)..........................27 Wilkinson v. Austin, 545 U.S. 209 (2005).......................28 Wood v. Meadows, 207 F.3d 708 (4th Cir. 2000)..............16, 20
Statutes N.C. GEN. STAT. § 163-82.7 ......................................14 N.C. GEN. STAT. § 163-230.2 .....................................16 N.C. GEN. STAT. § 163-230.2(c) ..................................14 N.C. GEN. STAT. § 163-230.2(e)(2) ...............................14 N.C. GEN. STAT. § 163-230.2(e)(4) ...............................14 N.C. GEN. STAT. § 163-231(b)(2)b .................................5
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Legislative Materials HB1169
§ 1(a) ..................................................17, 18 § 1(b) ...................................................7, 21 § 2(a) ......................................................15 § 2(b) .......................................................7 § 7(a) .......................................................7 § 11.1(b)(5) ................................................23 Other Authorities 2020 Primary Election Early Voting Schedule, DURHAM CTY. BD. OF ELECTIONS (2020), https://bit.ly/3hxxhzH .......9 Carrie Levine, Ohio’s Mail in Ballot Brouhaha: A Sign of Coming Trouble?, CTR. FOR PUB. INTEGRITY (Apr. 28, 2020), https://bit.ly/3ihNMQD ......................19 Numbered Memorandum 2020-03 from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to County Bds. Of Elections 2–4 (Jan. 15, 2020), https://bit.ly/3eASDdj ....29 Order, In re Investigation of Election Irregularities Affecting Counties Within the 9th Congressional District, STATE BD. OF ELECTIONS (Mar. 13, 2019), https://bit.ly/38ejmtY ......................................17
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INTRODUCTION AND STATEMENT OF MATTER BEFORE THE COURT AND FACTS Plaintiffs filed this suit nearly two months after Karen Bell,
Executive Director of the North Carolina State Board of Elections (“SBOE”), wrote to Governor Cooper and the General Assembly flagging the potential impact of COVID-19 pandemic on North Carolina’s upcoming elections. See Second Am. Compl. (“SAC”) ¶51, Doc. 30 (June 18, 2020). The General Assembly responded by passing bipartisan legislation, House Bill 1169 (“HB1169”) in mid-June by a total vote of 142–26.
The law makes several changes to North Carolina election procedures for the 2020 General Election, including reducing to one the number of individuals required to witness an absentee ballot; expanding the pool of authorized poll workers to include county residents beyond a particular precinct; allowing absentee ballots to be requested online, by fax, or by email; directing the SBOE to develop guidelines for assisting registered voters in nursing homes and hospitals; giving additional time for county boards to canvass absentee ballots; and providing over $27 million in funding for election administration.
Nevertheless, apparently unsatisfied with HB1169, which gives them some, but not all, of what they seek, Plaintiffs have persisted in this litigation by amending their complaint primarily to adjust the language, but not the substance, of their kitchen-sink challenge to North Carolina election law. They have
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even gone so far as to seek a preliminary injunction, which the State and Legislative Defendants oppose, requiring radical changes to North Carolina election procedures, including the construction of absentee ballot drop boxes across the state, the development and implementation of an additional online voter registration system, and the elimination of the uniform hours requirement for early voting locations. See Pls.’ Am. Mot. for Prelim. Inj., Doc. 31 (June 18, 2020).
Plaintiffs’ constitutional claims are without merit. Indeed, those claims rest almost entirely on speculative allegations of harm that fail to establish standing and seek to have this Court address political questions that are not within the Court’s jurisdiction. They also fail on the merits. For these reasons, the Court should dismiss Plaintiffs’ constitutional claims outright.1
QUESTION PRESENTED Whether Plaintiffs’ constitutional claims should be dismissed.
LEGAL STANDARD When a party challenges standing at the pleading stage, the Court must “accept as true all material allegations of the complaint and construe the complaint in favor of the complaining
1 While this motion is addressed to Plaintiffs’ constitutional claims, Legislative Defendants do not concede the validity of Plaintiffs’ statutory claims.
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party.” David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013). However, the Court need not accept factual allegations “that constitute nothing more than ‘legal conclusions' or ‘naked assertions.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Likewise, to survive a motion to dismiss under Rule 12(b)(6), Plaintiffs “must plead enough factual allegations ‘to state a claim to relief that is plausible on its face.’” Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020) (quoting Iqbal, 556 U.S. at 678). To do so, the complaint’s factual allegations must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, and “nudge the plaintiff’s claims across the line from conceivable to plausible,” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (quotation marks omitted).
ARGUMENT I. The Court Should Dismiss Plaintiffs’ Constitutional Claims
Under Rule 12(b)(1) For Lack of Subject-Matter Jurisdiction. A. Plaintiffs Lack Article III Standing To Assert Their
Vote-Burdening Claims. At the pleading stage, a plaintiff must plausibly allege the three requirements of standing: injury in fact, causation, and redressability. Liberty Univ., Inc. v. Lew, 733 F.3d 72, 89 (4th Cir. 2013); David v. Alphin, 704 F.3d at 333.
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In addition to suing in its own right, an organizational plaintiff may establish standing to represent its members’ interests by demonstrating that “(1) its own members would have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to the organization’s purpose; and (3) neither the claim nor the relief sought requires the participation of individual members in the lawsuit.” Md. Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991).
Both the individual and organizational Plaintiffs lack standing to challenge what they allege are unconstitutional burdens on the right to vote.
1. Voter Registration Plaintiffs allege that the State’s requirement that voters must register at least 25 days before the relevant election and its decision not to offer online registration through the Department of Health and Human Services (“DHHS”) both unconstitutionally burden the right to vote. See SAC ¶¶3, 92–95. Every single one of the individual voter-plaintiffs, however, is already registered to vote in North Carolina. See id. ¶¶16–22. The State’s registration regime therefore poses no injury to any of them, and they have no standing. The organizational plaintiffs lack standing as well. Neither has identified any members who would independently have standing
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to challenge the registration system. See Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009); see also SAC ¶15 (alleging that LWVNC’s membership is registered). Nor do the organizational plaintiffs have standing in their own right. They generally allege that the deadline will “require [them] and [their] members to divert significant resources.” Id. ¶94. This kind of conclusory statement does not suffice. “Although a diversion of resources might harm the organization by reducing the funds available for other purposes, it results not from any actions taken by [the defendant], but rather from the [organization’s] own budgetary choices.” Lane v. Holder, 703 F.3d 668, 675 (4th Cir. 2012) (quotation marks omitted) (alterations in original).
2. The Witness Requirement Only Plaintiffs Bentley and Hutchins are potentially capable of challenging the Witness Requirement as amended. Bentley lives alone and alleges that she “do[es] not know if she can satisfy the witness requirement in order to request and cast an absentee mailin ballot.” SAC ¶19. But she lacks standing because her “theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013) (quotation marks omitted). Bentley has until the day of the General Election in November 2020 to postmark her ballot. See N.C. GEN. STAT. § 163-231(b)(2)b.
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And a great deal can change in the next four months with respect to the danger posed by the virus. Moreover, Bentley alleges only that she “does not leave her home unless absolutely necessary.” SAC ¶19. This implies that since she began self-isolating she has left her house when necessary. And Bentley has not alleged facts showing that she will not need to leave her house in the months preceding the election such that she will encounter at least one person eligible to serve as her witness.
Nor has Bentley alleged facts indicating that the probability of contracting the virus is so high as to be “certainly impending.” An injury that “could very likely” occur does not suffice to secure standing. Matherly v. Andrews, 859 F.3d 264, 277 (4th Cir. 2017). Even a 33% chance of harm “falls far short” of establishing standing. Beck v. McDonald, 848 F.3d 262, 275–76 (4th Cir. 2017). Bentley has offered no factual allegation showing that, should she maintain diligent social distancing and compliance with CDC recommendations and ask a neighbor who has likewise engaged in social distancing to serve as her witness outdoors and socially distanced, her contracting the virus is certainly impending.
Hutchins also lacks standing to challenge to the Witness Requirement. As with Bentley, Hutchins fails to show any certainly impending injury. First, while Hutchins’s living facility is currently on lockdown, that may change by November and if so, Hutchins’s wife should be able to serve as his witness. See SAC
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¶22. Second, Hutchins proffers no allegations explaining why one of his fellow residents at the living facility could not serve as his witness. Third, HB1169 requires the DHHS and SBOE to develop guidance allowing trained multipartisan assistance team (“MAT”) members to enter nursing homes “to assist registered voters” there. HB1169 § 2(b). Hutchins may therefore also have a MAT member serve as his witness.
The organizational plaintiffs also lack standing to challenge the Witness Requirement. Neither addresses whether their members would not be able to meet the one-witness requirement, much less identified any such member. See Summers, 555 U.S. at 498. Nor do the organizational Plaintiffs allege any facts that would suffice to secure standing in their own right.
3. Requesting Absentee Ballots HB1169 now provides that voters or their near relatives may additionally request absentee ballots through online submissions, email, or fax. HB1169 §§ 1(b), 7(a). Plaintiffs nevertheless allege that the lack of a request-by-phone option is unconstitutional. See SAC ¶103. The only Plaintiff who even addresses requesting a ballot by phone, Hutchins, see id. ¶22, has alleged no facts indicating that neither his wife nor any other near relative would be unable to submit the online form, or send a fax or email on his behalf, or that he even has any preference between those options and requesting his ballot over the phone. He lacks standing.
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4. Drop Boxes None of the individual plaintiffs has declared a need for using a drop box to submit their absentee ballots. Therefore, none has standing to raise this claim. Nor have the organizational plaintiffs because they do not specifically identify any members who need or plan to use such drop boxes, nor do they proffer allegations establishing standing in their own right.
5. Opportunity To Cure The individual plaintiffs who plan to vote by mail do not allege facts showing that it is “certainly impending” that they will need an opportunity to cure any deficiencies in submitting their absentee ballots, nor that their county board of elections will deny them such an opportunity if needed. Millions of citizens every year successfully cast absentee ballots across the country. And these plaintiffs are sophisticated enough to initiate this very suit. It is therefore implausible to conclude that Plaintiffs will imminently err in filling out their absentee ballots. Thus, Plaintiffs lack standing to bring both their vote-burdening and due-process claims against this feature of State law. And for the same reasons outlined in the above sections, the organizational plaintiffs likewise lack standing to raise this challenge.
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6. The Home County and Uniform Hours Requirements Permar asserts that because she is blind, she uses public transportation and that her right to vote would be burdened “if precincts are consolidated in such a way as to force her . . . to travel to a polling place that is not accessible by public transportation” or wait in a long line once there. SAC ¶108. These concerns are entirely speculative. Permar makes no allegations supporting the highly unlikely proposition that Durham County——should it even need to engage in precinct consolidation—— would not locate any polling places near public transportation. Indeed, in the 2020 Primary Election, one early voting location in Durham County was the Broadhead Center at Duke University, see 2020 Primary Election Early Voting Schedule, DURHAM CTY. BD. OF ELECTIONS (2020), https://bit.ly/3hxxhzH, the same campus on which Permar works, see SAC ¶111. Likewise, Permar’s speculative concern about long lines lacks sufficient factual support to secure her standing. Finally, the organizational plaintiffs lack standing because they have not identified any individual members who would have standing to challenge these laws, nor are their bare assertions of resource diversion sufficient, see id. ¶108, enough. See Lane, 703 F.3d at 675.
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B. Plaintiffs’ Constitutional Voting Rights Claims Must Be Dismissed Under the Political Question Doctrine.
When recently presented with claims that Georgia election officials had not adequately responded to COVID-19 in violation of the constitutional right to vote, a federal court dismissed the claims under the political question doctrine. See Coal. for Good Governance v. Raffensperger, No. 20-1677, 2020 WL 2509092 (N.D. Ga. May 14, 2020). First, the court pointed to the Elections Clause’s textually demonstrable commitment of “the administration of elections to Congress and state legislatures——not courts,” which is “especially important during crises such as the present one involving a medical pandemic.” Coal. for Good Governance, 2020 WL 2509092, at *3. Second, the court explained that the plaintiffs’ claims ultimately turned on “whether the executive branch has done enough,” and resolving that issue “with any degree of certainty would be impossible, as there are no judicially discoverable and manageable standards.” Id.
Coalition for Good Governance is on all fours with this case, its reasoning is persuasive, and this Court should follow it. Any standard for resolving claims in the sensitive area of election regulation “must be grounded in a limited and precise rationale and be clear, manageable, and politically neutral.” Common Cause v. Rucho, 139 S. Ct. 2484, 2498 (2019) (quotation marks omitted). Here, the General Assembly balanced many incommensurables when
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deciding upon procedures for elections during a pandemic. The Court cannot second-guess this judgment without making “an initial policy determination of a kind clearly for nonjudicial discretion.” Baker v. Carr, 369 U.S. 186, 217 (1962). II. The Court Should Dismiss Plaintiffs’ Constitutional Claims
for Failure To State a Claim Under Rule 12(b)(6). Even if Plaintiffs’ constitutional claims survive under Rule 12(b)(1), they cannot surmount Rule 12(b)(6). A. The Organizational Plaintiffs Lack Prudential Standing
to Assert Their Vote-Burdening and Due-Process Claims. The organizational Plaintiffs’ vote-burdening and due-process claims additionally must be dismissed under Rule 12(b)(6) for a lack of prudential standing. To overcome the limits on third-party standing, the organizational plaintiffs must show that: (1) they have a “ ‘close’ relationship” with those whose constitutional rights they seek to assert; and (2) the individuals whose rights are at issue face a “hindrance” to their “ability to protect [their] own interests.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). Neither is satisfied. First, the relationship between the organizational plaintiffs and third-party voters is nothing like the special relationships of intimacy and confidence justifying third-party standing. See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017) (parent-child); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 (1989) (attorneyclient). Second, parties whose rights are directly affected are
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their own best representatives, to the exclusion of others, unless third-party plaintiffs make an affirmative showing otherwise. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215 (4th Cir. 2002). The organizational plaintiffs cannot make such a showing. The claims of the individual plaintiffs here demonstrate that voters can readily bring their own suits.
B. Plaintiffs’ Vote-Burdening Claims Are Legally Insufficient.
Under the well-established Anderson-Burdick framework, a court assessing a vote-burdening claim must “consider the character and magnitude of the asserted injury” to the right vote. Lee v. Va. State Bd. of Elections, 843 F.3d 592, 605 (4th Cir. 2016) (quotation marks omitted). If the restriction is “severe,” it “must be narrowly drawn to advance a state interest of compelling importance.” Id. at 606. But this scrutiny is applicable only when “the State totally denied the electoral franchise to a particular class of residents.” Mays v. LaRose, 951 F.3d 775, 786 (6th Cir. 2020) (quotation marks omitted). Meanwhile, “a reasonable, nondiscriminatory restriction on voting rights” is “justified by a State’s important regulatory interests.” Lee, 843 F.3d at 606 (quotation marks omitted).
Even accepting Plaintiffs’ factual allegations as true, they cannot state a claim for relief under Anderson-Burdick.
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1. Voter Registration Plaintiffs cannot plausibly claim that the 25-day registration deadline somehow “totally denie[s]” the right to vote, see Mays, 951 F.3d at 786, because the State provides ample registration opportunities, see SAC ¶53. Because voters “have ample time and opportunity” to register, the 25-day requirement’s burden on voters is, at most, “modest.” Pisano v. Strach, 743 F.3d 927, 936 (4th Cir. 2014). The State’s “interest in ensuring orderly, fair, and efficient procedures for the election of public officials” justifies the deadline. Id. at 937 (quotation marks omitted). “This interest necessarily requires the imposition of some cutoff period to verify the validity of” the applications. Id. (quotation marks omitted). Plaintiffs give no reason to think that the 25-day requirement is incongruent with that interest. For similar reasons, the State’s decision to offer online registration only through the DMV’s website is perfectly constitutional. They offer no allegation supporting why the current DMV-based portal is constitutionally deficient, especially given that at least 91.9% of registered voters in the State have DMV-issued ID. See N.C. State Conference of NAACP v. Cooper, 430 F. Supp. 3d 15, 38 (M.D.N.C. 2019). And Plaintiffs further do not explain how even a single voter has ever been hindered from
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registering to vote because DHHS has not operated a registration website apart from the DMV’s.
Meanwhile, the State has important interests in avoiding voter confusion and securing sensitive voter information. Were there a proliferation of State agency websites available for registration, the State would need to expend significant resources to securely maintain the information deposited through the websites and would need to make efforts to allow voters to differentiate those agencies whose websites permit voter registration from those that do not. Moreover, because the State must ultimately verify each voter registration application, see N.C. GEN. STAT. § 163-82.7, a DMV-centered online registration system connects any applicant to an existing DMV account and therefore streamlines the verification process.
2. The Ballot Harvesting Ban North Carolina law allows only a “voter’s near relative or verifiable legal guardian” or MAT members to “complete[], partially or in whole” or to “sign[]” absentee ballot request form, see N.C. GEN. STAT. § 163-230.2(e)(2), and allows only those individuals, the Postal Service, or a statutorily authorized delivery service to deliver a completed request form, see id. § 163-230.2(c), (e)(4) (“Ballot Harvesting Ban”). Of course, “there is no constitutional right to an absentee ballot.” Mays, 951 F.3d at 792. Therefore, restrictions on absentee
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ballots are reviewed only for rationality unless the putative voter is “in fact absolutely prohibited from voting by the State” when looking at the state’s election code “as a whole.” McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807–08 & 808 n.7 (1969) (emphasis added). Because North Carolina “permits the plaintiffs to vote in person” “McDonald directs [this Court] to review [the absentee-ballot laws] only for a rational basis.” Tex. Democratic Party v. Abbott, 961 F.3d 389, 404, 406 (5th Cir. 2020). That said, as shown below, each challenged absentee-voting provision satisfies even the Anderson-Burdick framework.
To begin, with the passage of HB1169, the State now allows absentee ballot requests online and by email and fax for all further 2020 elections. HB1169 §2(a). While Plaintiffs claim that the Constitution also requires State to allow absentee ballot requests over the phone, see SAC ¶103, the lack of such an option when voters can request absentee ballots many other ways is not a “severe” burden on the right to vote. Whatever burden exists is minute, and the State’s interest in maintaining written and electronic records, complete with wet signatures or e-signatures for verification, is plainly legitimate.
HB1169 likewise neuters Plaintiffs’ challenge to the Ballot Harvesting Ban. The suspension of the requirement that absentee ballot requests be sent on paper for the 2020 elections undercuts Plaintiffs’ claim of undue burden from the Ballot Harvesting Ban.
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For example, Plaintiff Cates can now submit an online request, and Hutchins’s wife or another near relative may do the same for him without the assistance of outside organizations.
Plaintiffs’ remaining gripes with the Ballot Harvesting Ban stem from a substantial over-reading of the statute’s restrictions. Section 163-230.2 prohibits three discrete acts: (1) “complet[ing]” the applicant’s request form; (2) “sign[ing]” the form; and (3) “deliver[ing]” the form to the county board of elections. A LWVNC volunteer could, consistent with Section 163230.2, discuss filling out an absentee ballot request line-by-line with any of the individual Plaintiffs or any other voter, answering whatever questions the voter has along the way, so long as the volunteer does not engage in any of three discrete acts listed above. The law therefore poses only a minimal burden on the right to vote, especially now that voters in 2020 are not physically required to deliver paper requests to the county boards.
Meanwhile, the government’s interests here are weighty. Plaintiffs fault the restriction as not “narrowly drawn” to advance its anti-fraud interest, SAC ¶98, but “‘narrow tailoring’ . . . analysis has always been reserved for a court’s strict scrutiny of a statute.” Wood v. Meadows, 207 F.3d 708, 716 (4th Cir. 2000). Under Anderson-Burdick, “requirements constituting an unreasonable, discriminatory burden are the only requirements subject to strict scrutiny review.” Id. For “reasonable and
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nondiscriminatory rules”——like the Ballot Harvesting Ban——the

court must “ask only that the state articulate its asserted

interests.” Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 719

(4th Cir. 2016) (quotation marks and alterations omitted). This is

“not a high bar” and can be cleared with “[r]easoned, credible

argument,” rather than “elaborate, empirical verification.” Id.

(quotation marks omitted).

The State has met its burden. In the aftermath of the Dowless

scandal, see generally Order, In re Investigation of Election

Irregularities Affecting Counties Within the 9th Congressional

District,

STATE

BD.

OF

ELECTIONS

(Mar.

13,

2019),

https://bit.ly/38ejmtY, the State reasonably and credibly decided

that preventing abuse of the ballot collection process required

targeted restrictions on handling absentee ballot requests by

individuals outside of the voter’s family and the MAT. Plaintiffs

cannot plausibly contend that the 160 state legislators who voted

in favor of the Ban (against only one opposing vote) lacked any

“reasoned” or “credible” arguments for enacting this limited

regulation on ballot harvesting.

3. The Witness Requirement

North Carolina requires that for the 2020 elections an

absentee-by-mail voter need only “mark[] the ballot in the presence

of at least one” qualified adult, “provided that the person signed

the application and certificate as a witness and printed that

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person’s name and address on the container-return envelope.” HB1169 § 1(a).
The State’s relaxed Witness Requirement satisfies the Anderson-Burdick test. Voters can satisfy the Witness Requirement while abiding by all relevant social-distancing and sanitization guidelines. For example, any family member, friend, neighbor, mail-delivery person, food-delivery person, or MAT member can watch the voter mark their ballot through a window, glass door, or other barrier. At that point, the voter can pass the ballot under a closed door or through an open window to be marked, signed, and returned (after handwashing or sanitizing) without direct interaction between the two persons. These options are available to practically all voters living alone and would not require the voter or the witness to come within six feet of each other or break other social-distancing guidelines.
Because the Witness Requirement is a “reasonable and nondiscriminatory rule[],” the State’s burden is merely to “articulate its asserted interests”, with “[r]easoned, credible argument,” rather than “elaborate, empirical verification.” Libertarian Party of Va., 826 F.3d at 708 (quotation marks and alterations omitted). The Witness Requirement is a rational means of promoting the State’s interest in deterring, detecting, and punishing voter fraud. And that interest is compelling. See
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Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir. 2008).
4. Drop Boxes Plaintiffs allege that North Carolina has violated the Constitution by not providing drop boxes for voters to deliver absentee ballots despite the fact that “there is no constitutional right to an absentee ballot,” Mays, 951 F.3d at 792, let alone a right to deliver that ballot however one wants. Moreover, Plaintiffs offer no support for this claim aside from the speculation that voters should be able to “avoid severe delays with the U.S. Postal Service.” SAC ¶75. Plaintiffs invoke the anecdotal experiences of three states during their spring primary elections, but they offer no factual allegations from which one would reasonably infer that USPS will not timely deliver absentee ballots in North Carolina in November, especially given that the very source Plaintiffs cite noted that post offices were agreeing “to a series of measures designed to speed up election mail.” Carrie Levine, Ohio’s Mail in Ballot Brouhaha: A Sign of Coming Trouble?, CTR. FOR PUB. INTEGRITY (Apr. 28, 2020), https://bit.ly/3ihNMQD. Because the State’s decision to abstain from providing drop boxes is nothing more than a “reasonable and nondiscriminatory rule[],” the State’s burden is merely to “articulate[] its asserted interests” with “[r]easoned, credible argument.” Libertarian Party
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of Va., 826 F.3d at 719 (quotation marks omitted) (first and third alterations added). Its interests in administrative convenience and the allocation of limited resources in the remaining time before the election “readily falls under the rubric of a state’s regulatory interests, the importance of which the Supreme Court has repeatedly recognized.” Wood, 207 F.3d at 715 (quotation marks omitted). And the State’s decision to abstain from wading into the practice of drop boxes clearly “furthers these interests.” Id.
5. Opportunity To Cure Plaintiffs argue that the State unduly burdens the right to vote by not guaranteeing to voters statewide an opportunity to cure deficient absentee ballot requests or ballots. But those concerns derive from mistaken premises already addressed. For example, because the Ballot Harvesting Ban does not prevent any person from helping an individual understand the procedures surrounding mail-in absentee voting, there is no “heightened risk that voters new to mail-in absentee voting will fail to follow the proper procedures” because of it. SAC ¶76. More fundamentally, Plaintiffs cannot identify a single instance where election officials rejected an absentee ballot based on some mistake that could have been cured. This alone indicates that the purported burden here is, at most, minimal. Plaintiffs also ignore the State’s substantial interests in finality and administrative convenience. A formal administrative
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apparatus designed to cure potentially thousands of absentee ballot requests and ballots could upend the finality of North Carolina’s elections and perhaps their legitimacy. Requiring election officials to dedicate potentially thousands of hours to assessing the curative potential for each rejected absentee ballot could easily delay election results——particularly in close contests——by weeks. Because the State’s decision to abstain from providing a mandatory curative process for absentee ballots is a “reasonable and nondiscriminatory rule[],”and because the State has articulated its asserted interest with “[r]easoned, credible argument,” Libertarian Party of Va., 826 F.3d at 719, its practice is constitutional.
6. The Home County Requirement For 2020, North Carolina requires that at least one poll worker to be a resident of the precinct, and that all poll workers in the precinct at least be residents of the county. See HB1169 § 1(b). Plaintiffs’ allege that Home County Requirement will “force precinct consolidation and relocation and create long lines and crowds on Election Day.” SAC ¶106. But Plaintiffs’ complaint offers zero factual allegations plausibly showing that the Home County Requirement causes precinct consolidation. The most that Plaintiffs can say about the Home County Requirement is that a June primary election in Georgia shows that “even county-wide
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recruitment of poll workers proved insufficient to properly staff polling locations.” Id. ¶82. This conclusory allegation, based on an anecdotal news account of a handful of polling locations in another state, cannot plausibly support such an inference.
Plaintiffs cannot show that the law burdens their rights to vote at all, and it therefore necessarily satisfies AndersonBurdick. See McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 n.6 (4th Cir. 1995). At any rate, the State’s interest in election administration and integrity supports the requirement.
7. The Uniform Hours Requirement Finally, Plaintiffs argue that the State’s Uniform Hours Requirement——that all early voting sites remain open during uniform hours and that all sites aside from the county board office must be open from 8:00 AM to 7:30 PM——unconstitutionally burdens the right to vote. This claim rests upon speculation and a disregard for the State’s important interests in election integrity. Plaintiffs claim that the Uniform Hours Requirement “caused 43 counties to reduce the number of early voting sites in the 2018 general election compared to 2014 and over two thirds of counties to reduce weekend hours.” SAC ¶84. But even if true, this allegation about the number of early voting sites is irrelevant to the more basic question of the law’s effect on total early voting hours across the sites. Plaintiffs therefore have no factual
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allegations from which to infer that the Uniform Hours Requirement restricts voting opportunities.
Plaintiffs also proffer no factual allegations from which one can plausibly infer that the Uniform Hours Requirement would lead to unavoidable lines and crowds at early voting locations. Indeed, one should suspect the law to have the opposite effect: even if fewer early voting locations are established for the 2020 General Election, the locations that remain open will operate at least every weekday from 8:00 AM to 7:30 PM.
Plaintiffs’ speculation about precinct consolidation additionally lacks foundation HB1169’s allocation of an additional $6 million “for early one-stop voting-related expenses” in counties “that adopt uniform early one-stop voting plans.” HB1169 § 11.1(b)(5). This substantial funding significantly decreases the likelihood that the Uniform Hours Requirement will cause precinct consolidation on the scale that Plaintiffs’ imply.
To the extent that the Uniform Hours Requirement burdens the right to vote at all, that burden is modest. Moreover, the State’s interests in avoiding voter confusion by promoting uniformity and promoting administrative convenience by making it easier for counties to publicize early voting hours, as well as its interest in avoiding even an appearance of partisanship in the setting of early voting hours, clearly justify such a reasonable, nondiscriminatory election regulation.
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C. Plaintiffs’ “Unconstitutional Conditions” Claim Fails. 1. The unconstitutional-conditions doctrine is irrelevant to this case because that doctrine only “forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606 (2013) (emphasis added). Plaintiffs are not challenging the withholding of government benefits, and Legislative Defendants are not arguing that Plaintiffs voluntarily agreed to give up a constitutional right in exchange for such benefits. Plaintiffs contend that the unconstitutional-conditions doctrine is implicated because North Carolina election law allegedly forces them to choose between their constitutional voting rights and their substantive due process right to bodily integrity. But the correct way to analyze cases in which more than one constitutional right is at stake is to apply the ordinary legal standards that govern claims under each of the constitutional rights in question. See Miller v. Smith, 115 F.3d 1136, 1139–44 (4th Cir. 1997) (en banc). Plaintiffs’ legally deficient voteburdening claims cannot succeed when repackaged under the inapplicable unconstitutional-conditions doctrine. 2. Plaintiffs are actually complaining about an alleged violation of their substantive due process right to bodily integrity. This argument is meritless.
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In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court held that the Due Process Clause “cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” Id. at 194–95 (quotation marks omitted). Therefore, the baseline rule is that “[l]iability does not arise when the state stands by and does nothing in the face of danger.” Stevenson ex rel. Stevenson v. Martin Cty. Bd. Of Educ., 3 Fed. App’x 25, 31 (4th Cir. 2001).
Outside the custodial context, the only exception to this rule applies when “affirmative misconduct by the state . . . creat[es] or enhanc[es] the danger” that someone confronts. Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir. 1995) (quotation marks omitted). Plaintiffs cannot establish such affirmative conduct by the State. The spread of the coronavirus is a natural phenomenon that the State did not cause, much less cause through any “affirmative” act. Cf. Coal. for Good Governance, 2020 WL 2509092, at *3 n.2.
Even if Plaintiffs’ feared injuries were attributable to an affirmative act by the State, their substantive due process argument would still fail because the right that Plaintiffs assert falls far outside the ambit of any right the Supreme Court has ever recognized. Supreme Court precedent requires a “careful description of the asserted fundamental liberty interest,”
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Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quotation marks omitted), and Plaintiffs claim a substantive due process right to physical safety while voting. Plaintiffs are unable to cite any case that has recognized such a right——much less the sort of weighty authority that would be necessary to show that this right is “deeply rooted in this Nation’s history and tradition.” Id. (quotation marks omitted).
D. The Ballot Harvesting Ban Does Not Violate the First Amendment.
Plaintiff Schaffer and the organizational Plaintiffs claim that the Ballot Harvesting Ban violates their rights to free speech and free association under the First Amendment. But the Ballot Harvesting Ban does not touch on protected speech or association at all.
First, to implicate the First Amendment, the ballot harvesting that North Carolina regulates must be expressive conduct. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). First Amendment protection extends only to conduct that “is intended to be communicative and . . . in context, would reasonably be understood by the viewer to be communicative.” Id. at 294.
Plaintiffs fail to make this showing. The Ballot Harvesting Ban regulates three discrete forms of “assistance”: (1) “complet[ing]” the applicant’s absentee ballot request form; (2)
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“sign[ing]” it; and (3) “deliver[ing]” it to the county board of elections. None of these actions are inherently expressive. And Plaintiffs offer no explanation for how this limited regulation of conduct infringes on their First Amendment rights. Plaintiffs can say anything they want to any registered voter regarding absentee ballot requests.
Courts assessing the constitutionality of ballot-collection measures like SB 683 regularly hold that they do not implicate the First Amendment precisely because they regulate non-expressive activities. See Knox v. Brnovich, 907 F.3d 1167, 1181 (9th Cir. 2018); Voting for Am., Inc. v. Steen, 732 F.3d 382, 391 (5th Cir. 2013). And even if “complet[ing]” or “sign[ing]” a ballot request form constitutes protected speech, it is the speech of the voter, not the organization or individual assisting the voter. See Knox, 907 F.3d at 1182; Voting for Am., Inc., 732 F.3d at 390.
Because the Ballot Harvesting Ban “do[es] not implicate the First Amendment, rational basis scrutiny is appropriate.” Voting for Am. Inc., 732 F.3d at 392. Under that standard the Ballot Harvesting Ban comes to this Court bearing a “strong presumption of validity” and will pass constitutional muster so long as it is “rationally related to legitimate governmental goals,” which can be based on “rational speculation unsupported by evidence or empirical data.” Wilkins v. Gaddy, 734 F.3d 344, 347, 348 (2013) (quotation marks omitted). The Ballot Harvesting Ban clearly
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survives under such a deferential standard: It is a rational means of promoting the government’s legitimate interest in combating election fraud.
E. The Due Process Clause Does Not Require the Procedures Plaintiffs Demand.
Plaintiffs allege that North Carolina violates the due process rights of its absentee voters because election officials do not provide a uniform, mandatory process through which voters who submit error-ridden absentee ballots are given a second chance at filling them out. The Fourth Circuit uses a two-pronged test to determine procedural due process violations: “a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). Plaintiffs cannot satisfy either prong.
First, the absentee vote is not a protected interest. Under Wilkinson v. Austin, protected interests may derive from the U.S. Constitution or from “an expectation or interest created by state laws or policies.” 545 U.S. 209, 221 (2005). But the option of an absentee ballot is not a right itself. See Burdick v. Takushi, 504 U.S. 428, 433 (1992).
Second, even if absentee voting were a protected interest, courts weigh three factors when considering procedural safeguards: the protected interest; the risk that the interest will be
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erroneously deprived and the probable value of additional safeguards; and the public interest, including “the fiscal and administrative burdens” that the safeguards would impose. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). If the burdens of added safeguards would overwhelm their expected value, states may constitutionally reject them. See id. at 349. So it is here.
Plaintiffs insist that North Carolina does not afford mailin absentee voters “any notice of or opportunities to cure material defects in their absentee ballot request forms or absentee ballots.” SAC ¶137. But they offer no factual allegations supporting that assertion, and the SBOE has a uniform policy encouraging county officials to contact voters to help them correct mistakes on absentee ballot request forms, Numbered Memorandum 2020-03 from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to County Bds. Of Elections 2–4 (Jan. 15, 2020), https://bit.ly/3eASDdj. Plaintiffs say nothing about these existing safeguards and do not even attempt to establish that additional safeguards would have value.
Meanwhile, the financial and administrative costs of what Plaintiffs appear to contemplate are overly burdensome. For example, when a county election board rejected 2,603 referendum petition signatures without giving an opportunity for cure, the Fourth Circuit found that there was no procedural due process violation because “the costs of allowing thousands of people to
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demand a hearing on the validity of their signatures would be

disproportionate to the benefits.” See Kendall v. Balcerzak, 750 F.3d 515, 530 (4th Cir. 2011). Plaintiffs give this Court no reason

to infer that the costs in this case would be any less

disproportionate.

CONCLUSION

Plaintiffs’ second amended complaint should be dismissed in

part.

Dated: July 2, 2020
/s/ Nicole J. Moss Nicole J. Moss (State Bar No. 31958) COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 nmoss@cooperkirk.com
Local Civil Rule 83.1 Counsel for Legislative DefendantIntervenors

Respectfully submitted,
/s/ David H. Thompson David H. Thompson Peter A. Patterson Steven J. Lindsay* COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 220-9600 dthompson@cooperkirk.com
Counsel for Legislative Defendant-Intervenors
*Notice of Appearance Forthcoming

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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1), the undersigned counsel hereby certifies that the foregoing Brief in Support of Legislative Defendants’ Motion To Dismiss in Part Plaintiffs’ Second Amended Complaint, including body, headings, and footnotes, contains 6,243 words as measured by Microsoft Word.
/s/Nicole J. Moss Nicole J. Moss
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CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on the 2nd day of July, 2020, she electronically filed the foregoing Brief in Support of Legislative Defendants’ Motion To Dismiss in Part Plaintiffs’ Second Amended Complaint with the Clerk of the Court using the CM/ECF system, which will send notification of such to all counsel of record in this matter.
/s/ Nicole J. Moss Nicole J. Moss
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs,

vs.

Civil Action

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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

No. 20-cv-457
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR
AMENDED MOTION FOR PRELIMINARY INJUNCTION

Defendants,

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PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; TIMOTHY K. MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
Defendant-Intervenors. Plaintiffs have requested preliminary relief to protect their right to vote in the upcoming General Election, given the continued threat posed by Covid-19. This Court should grant Plaintiffs’ motion for preliminary relief because Plaintiffs are likely to prevail on the merits, they will suffer irreparable harm absent this Court’s intervention, and the remaining equitable considerations tilt in favor of issuing a preliminary injunction. Plaintiffs’ requested relief is crucial to preserving the mechanisms by which North Carolinians vote in this state: voter registration, absentee vote-by-mail, and in-person voting opportunities that will ensure a safe, free, and fair election. If the challenged restrictions are not lifted, Plaintiffs and all voters in North Carolina will be subject to unconstitutional and unlawful conditions for voting, as demonstrated by recent elections in other states, causing irreparable harm to Plaintiffs and our democracy as a whole.
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The State Defendants acknowledge the burden imposed on voters by these restrictions but fail to provide what state interests would be furthered by them. And Intervenor-Defendants would have the Court ignore overwhelming evidence that these restrictions will severely burden the right to vote during the Covid-19 pandemic, baldly asserting that “a great deal can change in the next for months.” Their assertions as to the state interests furthered by the challenged restrictions are directly contradicted by the State Defendants’ submission and lack credibility. Because the arguments raised by Defendants and amici lack merit, Plaintiffs’ motion should be granted.1
I. Plaintiffs Have Standing To Bring This Action A. Organizational Plaintiffs
Intervenor-Defendants incorrectly contend that Organizational Plaintiffs lack standing to assert certain claims.2 Under Havens Realty Corp. v. Coleman, 455 U.S. 363,
1 Hereafter, Plaintiffs incorporate by reference any previous abbreviations used in their memorandum in support of their motion for preliminary injunction and request to expedite. See Doc. 10. Further, Plaintiffs incorporate the facts pleaded in their SAC. Doc 30, ¶¶ 14–87. 2 Intervenor-Defendants do not challenge Organizational Plaintiffs’ standing to challenge the Absentee Ballot
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379 (1982), an organization suffers an injury in fact when the defendant’s actions impede the organization’s efforts to carry out its mission requiring it to “devote significant resources to identify and counteract” the challenged practices. See Lane v. Holder, 703 F.3d 668, 674-75 (4th Cir. 2012) (applying Havens). Organizational Plaintiffs meet the Havens standard here.
LWVNC’s core missions are promoting and encouraging voter participation and removing barriers to voting. Nicholas Decl. ¶¶ 3–4. It has alleged and substantiated that Defendants’ enforcement of the voter registration deadline and lack of expanded online voter registration will frustrate this purpose by hindering specific voter registration efforts, including initiatives to facilitate voter registration during the pandemic, especially because LWVNC expects many voters will seek to register closer to the election. Id. ¶¶ 8–10; see also Second Amended Complaint (“SAC”) ¶ 94, Doc. 30. LWVNC has similarly shown that enforcement of the other challenged restrictions will impede its core missions and that LWVNC will need to divert limited resources to remedy the effects
Assistance and Request restrictions and Defendants’ failure to guarantee PPE.
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of these restrictions. See Nicholas Decl. ¶¶ 12–20 (addressing remaining challenged restrictions).
Similarly, DemNC’s core mission is “increasing voter access and participation” through “substantial election protection efforts” and “producing voter guides.” SAC ¶ 14; see also Lopez Decl. ¶¶ 2–3. It has alleged and substantiated similar frustrations of its core purpose as LWVNC and demonstrated that Defendants’ enforcement of the challenged provisions will divert limited DemNC resources to overcoming these restrictions rather than fulfilling their core missions. See Lopez Decl. ¶¶ 19–21, 22–27, 28–29.
Organizational Plaintiffs’ initial declarations clearly establish their standing, and the Reply Declarations remove any remaining doubt . See Nicholas Reply Decl. ¶¶ 7–13; Lopez Reply Decl. ¶¶ 3–4.
Lane is not to the contrary. There, the organization failed to show that the “defendant’s alleged practices ‘perceptibly impaired [the organization’s] ability to” engaged in “a key component of [its] mission.” as Haven requires. 703 F.3d at 674-75 (quoting Havens, 455 U.S. at 379). Consequently, the “drain on its resources” was not an injury in fact. Id. Here, Organizational Plaintiffs have
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shown that Defendants’ enforcement of the challenged restrictions creates considerable barriers to their voter registration, outreach, assistance, and education efforts, frustrating their core missions and requiring diversion of limited resources, and courts have rejected similar arguments relying on Lane. See, e.g., Harrison v. Spencer, 2020 WL 1493557, at *7 (E.D. Va. Mar. 27, 2020) (where defendants’ actions have “perceptibly impaired” organization’s ability to carry out its mission and drained its resources, standing exists, and Lane “does not compel a contrary conclusion”).
Plaintiffs also dispute that Organizational Plaintiffs lack, in the alternative, prudential standing here. As the Supreme Court recently observed, such standing is “generally permitted … in cases where the ‘enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.’” June Med. Servs. L.L.C. v. Russo, 2020 WL 3492640, at *9 (U.S. June 29, 2020) (quoting Kowalski v. Tesmer, 543 U. S. 125, 130 (2004) and finding third-party standing) (emphasis in original). Plaintiffs further satisfy the requisite factors under Kowalski; they have developed close relationships with the voters they assist and who are presented with an undue burden,
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and the urgent nature of the relief needed here presents a hindrance to individual voters to protect their own rights. Nicholas Decl. ¶¶ 13–14, 22; Lopez Decl. ¶ 18; see also Mayor & City Council of Baltimore v. Azar, 2019 WL 4415539, at *5– 6, 15–16 (D. Md. Sept. 12, 2019).
B. Individual Plaintiffs Intervenor-Defendants’ arguments challenging the standing of Plaintiffs Bentley, Hutchins, and Permar are likewise unavailing. As an initial matter, “a voter always has standing to challenge a statute that places a requirement on the exercise of his or her right to vote.” People First of Ala. v. Merrill, 2020 WL 3207824, at *6 (N.D. Ala. June 15, 2020), stay denied sub nom. People First of Ala. v. Sec’y of Ala., 2020 WL 3478093 (11th Cir. June 25, 2020), stay granted Merrill v. People First of Ala., 591 U.S. -- (July 2, 2020). Even were this not true, whether plaintiffs have standing is governed by the nature of their claims and the applicable tests employed by the court in assessing those claims. See Warth v. Seldin, 422 U.S. 490, 500 (1975). None of those standards requires a showing that they are certain to contract Covid-19.
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As to their undue burden claims, Plaintiffs face additional concrete and imminent injuries: the severe risk to their physical health that the challenged provisions will force them to incur, and the measures they will need to take to comply with the challenged provisions.3 See Thomas v. Andino, 2020 WL 2617329, at *21 (D.S.C. May 25, 2020) (preliminarily enjoining the state’s witness requirement for absentee voting) (“[T]he character and magnitude of the burdens imposed . . . in [plaintiffs] having to place their health at risk during the COVID-19 pandemic likely outweighs the extent to which the Witness Requirement advances the state’s interests of voter fraud and integrity.”); see also id. at *19 (“[T]he Witness Requirement further burdens [plaintiffs] from exercising their right to vote by absentee ballot by requiring them to expose themselves to other people in contravention of maintaining safe social distancing practices”); Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d
3 Plaintiff Permar will be severely burdened if there is excessive precinct consolidation forcing her to stand in long lines risking her health. See Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969) (finding defendant’s failure to provide adequate voting facilities, despite their foreknowledge of precinct consolidations, deprived voters of their constitutional rights).
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1312, 1319 (11th Cir. 2019) (noting “Florida’s signaturematch scheme subjects vote-by-mail and provisional electors to the risk of disenfranchisement”) (emphasis added). The threat of airborne transmission of SARS-CoV-2, the virus that causes Covid-19, in indoor settings where people congregate, like a polling place, is real, substantial, and not meaningfully mitigated by the measures Intervenor-Defendants’ experts suggest. Murray Reply Decl. ¶¶ 1–5, 9–16. As Dr. Murray concludes after analyzing several studies on postelection Covid-19 transmission dynamics, “despite laborintensive and costly efforts to maintain the safety of inperson voting during the [April 7] Wisconsin election, a rigorous study provides support for the contention that this election increased Covid-19 transmission.” Id. ¶ 24; see also id. ¶¶ 20–24.
Plaintiff Bentley has clearly articulated a concrete and particularized injury. She is at risk of severe illness from Covid-19 and has not entered anyone else’s home, allowed anyone to enter hers, or left her neighborhood since midApril. Bentley Reply Decl. ¶¶ 3–4. She cannot ask a neighbor to witness her ballot, due to those neighbors breaking social distancing guidelines within her view, her unfamiliarity with
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others’ hygiene and social distancing practices, and still others’ regular contact with vulnerable family members. Bentley Decl. ¶ 7. Similarly, she will not be familiar with the precautions taken by any stranger she may encounter. Bentley Reply Decl. ¶ 6. Intervenor-Defendants’ proposal that she ask an asymptomatic neighbor to witness her ballot ignores the fact that “the virus can be transmitted by people who are asymptomatic as well as by those who are demonstrably ill.” Murray Decl. ¶ 23. Plaintiff Bentley does not have contact with her family members, who live outside North Carolina. Bentley Reply Decl. ¶ 5. For these reasons, should the witness requirement remain in place for the November election, Plaintiff Bentley’s right to vote will be severely burdened.
As to Plaintiff Bentley’s unconstitutional condition claim, this Court does not need to find that the condition is certain to cause her to contract Covid-19, because it is the giving up of one constitutional right—the right to bodily integrity—in order to exercise another—the right to vote—that constitutes the injury. See Saenz v. Roe, 526 U.S. 489, 504 (1999). She therefore has standing for this claim because she has shown that satisfying the witness requirement coerces her in this manner.
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To have standing to bring their procedural due process claim, Plaintiffs Clark, Cates, Edwards, Priddy, Hutchins, and Bentley need only demonstrate a liberty interest created by law and a risk of erroneous deprivation of that interest due to the procedures used. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).4 They have satisfied this requirement. Here, North Carolina law vests them with the statutory right to request and cast a mail-in ballot, see N.C. Gen. Stat. § 163226(a), which merges with their right to vote because vote by mail remains the only viable option for safely casting their ballot during the pandemic, due to their risk of severe illness. See infra at 17-18.
C. Plaintiffs’ Claims Are Not Precluded By The Political Question Doctrine
Intervenor-Defendants contend that the political question doctrine bars the Court’s resolution of Plaintiffs’ claims. See also Brief of Amici Republican Committees, Doc. 52-3 at 7–8 (arguing that this action is “an Affront to the Constitutional Order” because it asks the Court to “substitute its judgment” for that of North Carolina’s
4 To succeed on the merits of this claim, they must show that their interest and the risk of erroneous deprivation outweigh any governmental interest in maintaining existing procedures. See Mathews, 424 U.S. at 335.
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elected representatives). This argument is absurd. First, it is beyond cavil that our “constitutional order,” id. at 8, vests federal courts with the duty and the power “to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). That is precisely what Plaintiffs ask of this Court: to exercise its Article III authority to determine whether Defendants have violated Plaintiffs’ rights under the U.S. Constitution and federal statutes.
That this lawsuit concerns election procedures does not negate the power of judicial review. The amici Republican Committees suggest that any constitutional challenge to a state’s election laws would require the reviewing court “to usurp the role vested by the Constitution in the legislature.” Doc. 52-3 at 9–10. Hyperbole aside, the Supreme Court rejected this argument long ago and instead affirmed that courts have an important role to play even—and especially—in the election context, “an area so closely touching our most precious freedoms.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983) (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). The Court is fully equipped to decide this case on the basis of what the law requires.
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II. Plaintiffs Have Shown a Likelihood of Success on the Merits A. Undue Burden on the Right to Vote
Defendants’ arguments as to Count One suffer from three global defects. First, the challenged restrictions must all be analyzed under Anderson-Burdick and in the contexts of Covid-19, where epidemiological evidence show that voters are at the severe risk to exposure. Recent elections have also demonstrated that similar restrictions severely burden the right to vote. Because these restrictions are severe, they must be justified by compelling interests, substantiated with concrete evidence: “While states certainly have an interest in protecting against voter fraud and ensuring voter integrity, the interest will not suffice absent ‘evidence that such an interest made it necessary to burden voters’ rights.’” Thomas, 2020 WL 2617329, at *20 (quoting Fish v. Schwab, 957 F.3d 1105, 1133 (10th Cir. 2020) (affirming injunction against Kansas’s documentary proof of citizenship requirement for voter registration)). Defendants have failed to offer compelling interests or requisite evidence.
Second, even if the Court determines the challenged restrictions are not severe, Defendants admit that these restrictions burden voters, and have failed to show they serve
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any interests with the “legitimacy and strength” that would justify “the extent to which those interests make it necessary to burden the plaintiff’s rights,” especially during Covid19. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
Finally, Defendants fail to acknowledge that a “panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition.” Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Conner, J., concurring). While Defendants would like the Court to weigh each restriction in a vacuum, applicable precedent requires the Court to assess the cumulative impact of the challenged restrictions in the context of the pandemic. Analyzed accordingly, the challenged provisions taken together undeniably present an undue burden on the right to vote in North Carolina. 5
5 Plaintiffs’ claims are not mooted by HB1169 as the amici Republican Committees contend. Even by their own description and purported legal standard, HB 1169 falls far short of providing the “precise relief” requested by Plaintiffs, and they fail to cite even one example where this law would either fulfill or require the relief requested in the SAC as a court order would. See Doc. 52-3 at 20 (citing holding in N.Y. State Rifle & Pistol Ass'n v. City of N.Y., 140 S. Ct. 1525, 1526 (2020) that claims are only moot if new law grants the “precise relief”
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i.

Voter Registration

State Defendants admit that, even in a typical year, “a

very high volume of forms are received at the end of the voter

registration deadline.” Doc. 50 at 15; see also Ketchie Reply

Dec. ¶¶ 5–6, Ex. 2 (showing high registration rates toward

the end of voter registration periods in 2016 and 2018). And

they do not dispute that this burden will increase because

typical in-person voter registration options are not

available. In-person registration at a county board office

poses a risk to health, Murray Reply Decl. ¶¶ 1–5, 9–16, and

the pandemic continues to frustrate in-person voter

registration efforts and keep registration numbers low.

Nicholas Reply Decl. ¶ 7; Ketchie Decl. ¶ 4. The current DMV

option is no salve, as only DMV customers can use that portal

for registration. Just as there are nearly 350,000 registered

voters who do not have DMV-issued identification (that is,

are not DMV customers), Ketchie Reply Decl. ¶ 8, it is

reasonable to expect that a similar (if not greater)

requested). Additionally, amici overstate and mischaracterize what HB 1169 provides, for example stating it provides a “phone” option for “requesting mail-in ballots” where voters may only receive a request form this way, which they still must submit in order to receive an actual ballot. Id. at 18.
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proportion of unregistered voters are likewise unable to use online DMV options. Accordingly, there is no such “ample time and opportunity” before the election to register during Covid-19, as Defendants contend.
Defendants have also failed to show a legitimate state interest in enforcing the deadline during the pandemic. The purported issues regarding extensive “double” registration caused by extending the deadline are speculative and, to the extent there is any overlap, easily mitigated by use of supplemental lists. Bartlett Reply Decl. ¶¶ 5–8. Furthermore, Defendants express concern about the timing of mail verification, while elsewhere disclaiming any concern about USPS delivering absentee ballots, directly undercutting the rationality of this purported interest. Accordingly, Defendants have failed to rebut that enforcement of the voter registration deadline and failure to provide expanded online options present a severe burden on voters, or that it is justified by a countervailing interest.
ii. Absentee Ballots Intervenor-Defendants improperly rely on McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969) to contend that the default standard for reviewing
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restrictions on absentee ballots is “rationality.” Where
“‘other means of exercising the right’ to vote are not easily
available,” restrictions on absentee voting do impede the
right to vote and must be analyzed under Anderson-Burdick’s
balancing analysis:
In-person voting, while still technically an available option, forces voters to make the untenable and illusory choice between exercising their right to vote and placing themselves at risk of contracting a potentially terminal disease. . . . [D]uring this pandemic, absentee voting is the safest tool through which voters can use to effectuate their fundamental right to vote. To the extent that access to that tool is unduly burdened, then no matter the label, “denial of the absentee ballot is effectively an absolute denial of the franchise [and fundamental right to vote].” O'Brien [v. Skinner], 414 U.S. [524,] 533 [(1974)] (Justice Marshall concurring). As such, in these circumstances, absentee voting impacts voters’ fundamental right to vote.
Thomas, 2020 WL 2617329, at *17 n.20. Their reliance on Texas
Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020) is
similarly inapposite as it considered claims of age-related
disparate treatment, not claims of undue burden based on the
interaction of specific voting restrictions and pandemic
conditions, as argued here.
In any event, even if rational basis review applied,
Defendants have failed to establish any legitimate state
interest for any of the myriad of burdens the challenged
restrictions placed on absentee vote-by-mail.
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Witness Requirement. The Witness Requirement does not further the state’s
interest in preventing and prosecuting voter fraud. “[W]hen a state imposes unreasonable, discriminatory burdens, a court must consider not only the ‘legitimacy and strength’ of the interests assertedly justifying those burdens, but also ‘the extent to which [the state’s] interests make it necessary to burden the plaintiff's rights.’” Wood v. Meadows, 207 F.3d 708, 716 (4th Cir. 2000)) (citation omitted). As explained by Marshal Tutor, the witness requirement has extremely limited law enforcement value. Tutor Decl. ¶ 8. Defendants simply avoid Mr. Tutor’s declaration and ignore entirely that a witness signature may be easily forged. Id. ¶ 5. IntervenorDefendants rely on data that purports to show some voters have illegally voted in two states. This is a distraction: The witness requirement does not and cannot prevent illegal voting in two states. Notably, the Defendants do not even attempt this baseless argument. See Doc. 50 at 26–30.
Even if it served a legitimate state interest in general, the Witness Requirement is unreasonable and unnecessary as applied during the pandemic. The Intervenor-Defendants’ purported solution shows why: elderly people with multiple
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Covid-19 risk factors who live alone would need to identify a neighbor, postal worker, or a complete stranger to observe them voting through a window or glass door and then pass the ballot under a closed door or through a crack in an open window “to be marked, signed, and returned (after handwashing or sanitizing).” Doc. 51 at 29. This suggested process imposes non-statutory restrictions to the witness requirements, narrows who can witness a ballot, and is impossible for individuals living in an apartment or above ground floor. Such a rigmarole could only be justified by a requirement that held unmistakable benefits for law enforcement, which witnessing does not, as stated by the State Board of Elections’ former chief election fraud inspector. Tutor Decl. ¶ 8. And contrary to Defendants’ contentions, the Witness Requirement would impact a significant number of North Carolinians. In some counts, as many as 37% of householders are individuals living alone, totaling to over 1.1 million North Carolinians statewide. Ketchie Reply Decl. Ex. 4 at 12 (“Householder Living Alone” for “North Carolina”). This includes 416,121 over the age of 65. Id., Ex. 5 at 15 (“Householder Living Alone 65 and over” for “North Carolina). Finally, Director Karen Brinson Bell’s recommendation that
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the Witness Requirement be eliminated, Doc. 1, Ex. A at 4, undercuts that this is a truly effective or necessary election regulation.
The evidence further shows the burden of the Witness Requirement on voters like Plaintiff Bentley is severe. Ms. Bentley suffers from hypertension, a Covid-19 risk factor, and periodic severe respiratory illness. Bentley Decl. ¶ 3; Murray Decl. ¶¶ 21, 32. She is self-isolating because of the pandemic, id. ¶¶ 4–5, and states that she “would not ask a stranger to witness [her] ballot, for the same reason [she] cannot ask [her] neighbors”, because she is “not certain as to what precautions they’ve taken to protect themselves from contracting the virus and what risk contact with them will pose to [her] health.” Id. ¶ 6. It is not reasonable to require Plaintiff Bentley to interact with a stranger who may or may not be taking precautions. People who live alone and suffer from comorbidities that put them at severe risk from Covid-19 are justified in doubting the strictness of others’ social distancing and/or hygienic practices and avoiding all contact. Studies have demonstrated that surface contamination can lead to Covid-19 transmission. Murray Decl. ¶ 24. And MATs cannot alleviate this risk of exposure, assuming they
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were available in the first place, a doubtful proposition. Myers Reply Decl. ¶¶ 3–11 and Ex. A; Bartlett Reply ¶¶ 10– 11.
Defendants do not attempt to provide “‘evidence that such an interest [makes] it necessary to burden voters’ rights’” in this fashion. Thomas, 2020 WL 2617329, at *20 (citation omitted). They instead improperly contend that the Witness Requirement need not “map closely” to the state’s interest in preventing voter fraud, Doc. 58 at 28. But voting regulations cannot be upheld if they are wholly ineffective at advancing the state’s proffered interest. Such a restriction, like the Witness Requirement, fails to meet the balancing test required under Anderson-Burdick. See Thomas, 2020 WL 2617329, at *21 (finding plaintiffs likely to prevail on their constitutional challenge to the Witness Requirement under Anderson-Burdick because “the character and magnitude of the burdens imposed . . . during the COVID-19 pandemic likely outweigh the extent to which the Witness Requirement advances the state’s interests of voter fraud and integrity”).
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Restrictions on Absentee Requests Defendants have similarly failed to show why the
additional restrictions on absentee voting satisfy AndersonBurdick.
As to the Organization Assistance Ban, Defendants rely on excerpts of the 2005 Commission Report discussing the risks associated with absentee ballots, not ballot request forms, as is relevant here. They further contend the ban is only a “modest burden” by referencing MATs, but have failed to rebut Plaintiffs’ evidence that these teams are inadequate, as noted above. See Myers Reply Decl. Ex. A (SBOE General Counsel Love admitted that “[u]nfortunately not every county has a MAT team. although most counties do. It may be difficult to find a team of bipartisan volunteers to serve, and the MAT program has no funding allocated to it by the legislature.”). Defendants and Intervenor-Defendants have also failed to explain why less restrictive measures, such as restricting public access to information on absentee ballot requests, Tutor Decl. ¶¶ 6–7, do not already fully serve the state’s interests. And the statistics regarding alleged “double” voting presented in the Block Declaration are inapposite where there is no discernable link to absentee ballot request
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assistance. Finally, the burden imposed by the assistance ban is severe for LWVNC, see, e.g., Nicholas Decl. ¶ 13; Nicholas Reply Decl. ¶ 14, if enforced during Covid-19, and the online option is no salve for the voters who need assistance from knowledgeable individuals for assistance, or who lack technical skills or internet access needed for the brand-new online option.6
As to the failure to permit voters to submit HAVA documentation for proof of residence with an absentee ballot request, State Defendants agree this “would be sound policy.” Doc. 58 at 21–22. Their reliance on Democratic Nat’l Comm. v. Bostelmann, is inapposite given the plaintiffs in that case requested striking down the requirement entirely, not allowing alternative methods of proof. See 2020 WL 1320819, at *7 (W.D. Wis. Mar. 20, 2020).
The Defendants have also misconstrued Plaintiffs’ requested relief to let voters submit absentee ballot requests by phone. Plaintiffs seek a waiver of the form requirement under N.C. Gen. Stat. § 163-230.2(a) and its
6 See Appendix 5, 2019 Broadband Deployment Report, FCC 132– 136 (May 29, 2019), https://docs.fcc.gov/public/attachments/FCC-19-44A1.pdf.
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subparts to the extent required to achieve a request-by-phone mechanism. This includes at most the signature requirement, as a phone option can be made available while requiring all other information to be provided by the voter. Accordingly, the purported state interests in “reducing voter confusion” and processing time, which would only result from allowing alternative written requests, simply do not apply. And the purported “interest in maintaining written and electronic records,” is not furthered where the county board of elections receiving phone requests can make such a record, similar to the log of absentee ballots they already maintain. See Bartlett Decl. ¶ 18. Voting-by-mail Fail-Safes
There is no legitimate interest in failing to allow Federal Write-in Absentee Ballots (“FWABs”) to be sent to voters who fail to receive their absentee ballots in time. The Defendants concede that “failure to receive a timely requested absentee ballot would present severe burdens to the right to vote.” Doc. 50 at 36. Defendants’ claims that this requested relief would cause severe administrative burdens essentially concedes that they do believe there will be problems with absentee ballot delivery. And for good reason:
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many states with a sufficiently large electorate and unprecedented demand for mail-in voting, including Ohio, Pennsylvania, Georgia, and Wisconsin, have all experienced ballot delivery failures. Gronke Reply Decl. ¶¶ 25–27.
Defendants contend that other undisclosed methods would be more “administratively feasible.” Doc. 58, at 36. But to the extent permitting FWABs would require greater resources, the Supreme Court has made clear that voting rights do not bend to administrative convenience and financial considerations. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 218 (1986). If indeed this option required significant resources due to the volume of FWABs, it would simply prove that this option is necessary to prevent mass disenfranchisement due to delays in receiving absentee ballots. Nonetheless, if the Defendants have other potential remedies in mind, they should disclose them and seek to settle this claim.
As for the failure to provide a uniform opportunity to cure, State Defendants admit this is not available in all counties. And Director Bell’s plan to issue such guidance, Doc. 58 at 35–36, disproves any state interest in failing to provide one. Contrary to Defendants’ contentions, the 15%
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rejection rate for absentee ballots in the March 2020 primary illustrates the burden of this restriction: at least 48% and as many as 78% of those were rejected for non-compliance with statutory requirements. Ketchie Reply Decl. ¶ 7, Ex. 3. Furthermore, Intervenor-Defendants’ contention that a cure process would take “thousands of hours,” Doc. 51 at 34, is unsupported and, even if true, would prove the dire need for such a process. Finally, any purported interests in election “finality” and “convenience” would not be furthered by failing to provide a cure process, especially where such a cure process had a set deadline, and the assertion that such a cure process would give absentee voters an “advantage” ignores entirely the restrictions already imposed on absentee voters compared to those voting in-person. See Bartlett Reply Decl. ¶ 19.
Finally, the burden placed on voters by a failure to provide secure drop boxes is real and concrete; issues of absentee voter delivery are proven by recent elections in other states. Gronke Reply Decl. ¶¶ 25–27, 29, 31. It is also revealing that, while Defendants acknowledge no issues with USPS here, they express concern about mail verifications when it concerns voter registration. Doc. 58 at 15. The purported
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logistical issues presented by Intervenor-Defendants, Doc. 51 at 31–32, are disproven by Director Bell’s mandating a secure lock-box for the Republican second primary. Doc. 58-1 ¶ 8; see also Bartlett Reply Decl. ¶¶ 10-11. There is no legitimate state interest in failing to provide secure drop boxes during the Covid-19 pandemic when, by the Defendants’ admission, providing them would relieve the burden on voters by alleviating issues with USPS delivery and providing a safe method of ensuring absentee ballots are securely delivered.
iii. Restrictions on In-Person Voting The pandemic has caused a shortage of poll-workers, leading to precinct consolidation and lack of accessible early voting, which will result in excessively long lines and large increases in voting-by-mail, as shown in Wisconsin, Pennsylvania, and Georgia. Gronke Reply Decl. ¶¶ 7–13. To protect North Carolina from a similar fate, this Court must enjoin the uniform hours requirement for early voting sites and home county residency requirement, which requires pollworkers to reside in the county in which they serve, because each requirement will individually and collectively lead to precinct consolidation and less one-stop voting sites,
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burdening in-person voters such as Plaintiff Permar. Permar Decl. ¶¶ 7–8; Gronke Reply Decl. ¶¶ 12–13, 24.
In response to these claims, Defendants state no justification for the home county residency requirement, nor do they assert any interest in the uniform hours requirement. The purported interests in the uniform hours requirement stated by the county board of election declarants ignore that (1) counties will keep the option of uniform hours to further these interests, and (2) polling site locations, not hours, are a much a more pressing source of voter confusion. Bartlett Decl. ¶¶ 21–22; Quinn Decl. ¶¶ 5, 7–9, 14. Therefore, the home county and uniform hours requirement serve no legitimate state interest and fail Anderson-Burdick.
Even if they did serve legitimate interests, Plaintiffs have shown that these restrictions will present severe burdens to in-person voting if enforced during the pandemic by causing reduced early voting sites and election-day precincts, resulting in long lines and crowds that contravene social distancing directives, as well as increased travel time and other burdens to voters. Director Bell’s declaration supports this finding, as she discusses the State Board’s efforts to recruit poll-workers and notes
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that she had to permit voters to transfer to non-adjacent precincts for the June 23 primary in Congressional District 11, a measure that undoubtedly caused over 9,000 voters in this district to travel unusually long distances to vote. Bell Decl. ¶¶ 8, 14; see also Gronke Reply Decl. ¶ 5 (greater distances equate to less probability of voting); Quinn Decl. ¶¶ 18–19 (counties need flexibility in site times). Lifting these requirements will greatly further the State Board’s poll worker recruitment efforts and reduce any further non-adjacent voter transfers. Gronke Reply Decl. ¶¶ 12–13.
The recent election in Georgia, where there was precinct consolidation due to insufficient numbers of pollworkers—causing long lines—further shows how limiting inperson voting sites severely threatens the right to vote. Gronke Reply Decl. ¶ 11. Georgia had a similar requirement to North Carolina’s home county restriction, and thus the provision in HB 1169 lifting the precinct requirement to county-wide does not resolve this threat. Id. Voters in North Carolina, such as Plaintiff Permar, need not suffer the same fate while trying to vote in-person.
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B. Unconstitutional Conditions Doctrine Intervenor-Defendants apply incorrect standards in assessing this claim and incorrectly assert that the doctrine applies only when the government conditions a governmentcreated benefit on the forfeiture of a constitutional right. They ignore precedent cited by Plaintiffs even though those cases are undeniably relevant. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (“Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right. In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote.” (emphasis added)). Intervenor-Defendants also fail to explain how it could be unconstitutional for the government to require someone to give up a constitutional right in order to obtain a statutory benefit, but not to exercise a constitutional right. They cannot, because “[c]onstitutional rights would be of little value if they could be . . . indirectly denied,” regardless of whether that denial occurs through the imposition of an unlawful condition on a government-created benefit or a
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constitutional right. Dunn, 405 U.S. at 341 (quoting Harman v. Forssenius, 380 U.S. 528, 540 (1965)); see also Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004) (“This case presents an especially malignant unconstitutional condition because citizens are being required to surrender a constitutional right—freedom from unreasonable searches and seizures—not merely to receive a discretionary benefit but to exercise two other fundamental rights—freedom of speech and assembly.”).7
Intervenor-Defendants also contend that the Defendants cannot be held liable because Plaintiffs’ injuries flow from the Covid-19 pandemic. This argument also fails. First, Plaintiffs’ injuries flow from Defendants’ enforcement of the witness requirement during the Covid-19 pandemic. Laws are not enforced in a vacuum; what may be legal in one context may not be legal in another. Enforcing the witness requirement implicates voters’ right to bodily integrity by subjecting them to the risk of contact with a harmful substance, SARS-
7 Intervenor-Defendants’ reliance on Miller v. Smith, 115 F.3d 1136 (4th Cir. 1997) is misplaced because the habeas petitioner did not allege that the state had forced him to choose between two constitutional rights.
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CoV-2, the virus that causes Covid-19. Second, although Plaintiffs have not invoked the state-created danger theory, Intervenor-Defendants are incorrect that the enforcement of the witness requirement would not constitute affirmative state action. If election officials receive a completed absentee ballot without a witness signature, they will reject it. That is an affirmative state action.
Third, Intervenor-Defendants mischaracterize the right invoked by Plaintiffs, claiming that Plaintiffs articulate a new substantive due process right “to physical safety while voting.” Doc. 51 at 44. Plaintiffs do not assert a new substantive due process right—the right to bodily integrity is well-established. Intervenor-Defendants next claim that the right to bodily integrity applies only in cases involving violence and forced medical procedures. Id. at 45. Faced with a Sixth Circuit case, Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2010), that undermines their argument, IntervenorDefendants conclude without explanation that the majority, Judges Griffin and White, and the concurring judge, Judge McKeague, were simply wrong to find the plaintiffs had stated a bodily integrity substantive due process claim based on the Flint water crisis. Doc. 51 at 45. But the right to bodily
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integrity extends beyond simply protecting individuals against assault and unwanted medical procedures. “It is settled now . . . that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about . . . bodily integrity.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849 (1992). By making voters come into potential contact with Covid-19 in order to vote, Defendants violate their right to bodily integrity by forcing them to make unwanted contact with a harmful substance. Cf. Guertin, 912 F.3d at 921.
State Defendants do not try to disclaim state officials’ role in violating Plaintiffs’ right to bodily integrity. Instead, they claim that forcing voters to risk their health or lives to vote does not “shock the conscience.” Doc. 58, at 29. Plaintiffs respectfully disagree, given the unprecedented risks Covid-19 presents to all voters, especially to vulnerable voters like Plaintiffs. Regardless, Plaintiffs have still shown a likelihood to succeed under the applicable standard, which does not require a “shocks the conscience” finding. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1997) (“[T]he substantive component of the Due Process Clause is violated by executive action” that is “arbitrary,
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or conscience shocking.” (emphasis added, quotation marks omitted)); United States v. Salerno, 481 U.S. 739, 746 (1987) (government may not “engag[e] in conduct that ‘shocks the conscience,’ . . . or interferes with rights ‘implicit in the concept of ordered liberty’. . .” (emphasis added, citations omitted)). Enforcing the witness requirement during the Covid-19 pandemic is arbitrary and interferes with rights implicit in the concept of ordered liberty, meeting this standard.
As stated in Plaintiffs’ opening brief, the correct standard in this case is strict scrutiny: “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). Thus, laws that burden the right to bodily integrity must be “narrowly drawn” to serve a “compelling state interest.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). The Witness Requirement fails strict scrutiny because it does not further the government’s interest in preventing ballot fraud, and Defendants have failed to show otherwise. Indeed, as Intervenor-Defendants concede, the Witness Requirement could be satisfied by a
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complete stranger, see Doc. 51 at 28 (proposing a “fooddelivery person” witness a ballot) —someone who could hardly prevent ballot fraud. Even Defendant Brinson Bell observed that the witness requirement “increases the risk of transmission or exposure to disease” and that “[m]ost voters, under current law, would have to invite another adult into the voter’s home to complete the voting process since most voters do not live with two other individuals age 18 or older.” Doc. 1, Ex.2 at 3. Voters should not have to risk life-threatening illness to fulfill a rote procedure that does not meaningfully advance the state’s interest.
C. First Amendment Plaintiffs’ expressive association and conduct are political expression, “at the core of our electoral process and of the First Amendment freedoms,” Williams v. Rhodes, 393 U.S. 23, 32 (1968), so the Organization Assistance Ban in HB 1169 is subject to strict scrutiny. See Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011). The Assistance Ban prevents Organizational Plaintiffs from associating with their members and both Organizational Plaintiffs and Plaintiff Schaffer from associating with other
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voters. Nicholas Decl. ¶¶ 12–13; Lopez Decl. ¶ 22; Schaffer Decl. ¶¶ 5–9.
Intervenor-Defendants assert that the only activities implicated by the challenged provisions are those related to “completing,” “signing” and “delivering” absentee ballots and that these acts do not implicate protected conduct. Doc. 51 at 47. But this narrow view ignores the ambiguity in what constitutes “completing” a request form, Nicholas Reply Decl. ¶ 14, an ambiguity that will inevitably “chill” Plaintiffs’ expressive conduct, as “[people] of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).
Defendants also fail to appreciate that assisting voters is an expression of Plaintiffs’ view that the act of voting and helping others to vote promotes democracy, Nicholas Decl. ¶ 3; Lopez Decl. ¶ 2, and that “completing,” “signing,” and “delivering” request forms are but a part of their assistance with all aspects of voting, including education, registering voters, and assisting with mail-in ballots. Courts have recognized that such voter assistance activities are political expression manifested through conduct. In Am. Ass’n
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of People with Disabilities v. Herrera, the court found that plaintiffs’ “endeavors to assist people with voter registration are intended to convey a message that voting is important, that the Plaintiffs believe in civic participation, and that the Plaintiffs are willing to expend the resources to broaden the electorate to include allegedly under-served communities,” and thus the plaintiffs sufficiently stated a First-Amendment expressive-conduct claim. 690 F. Supp. 2d 1183, 1215-16 (D.N.M. 2010), on reconsideration in part, 2010 WL 3834049 (D.N.M. July 28, 2010). Here, the Organizational Plaintiffs and Plaintiff Schaffer are involved in voter registration and other activities—such as assisting with mail-in voting—that are just as expressive and “of necessity involve[] both the expression of a desire for political change and a discussion of the merits of the proposed change.” Meyer v. Grant, 486 U.S. 414, 421 (1988).
The Herrera court also rejected similar contentions by Intervenor-Defendants that Plaintiffs can still “say anything,” Doc. 51 at 47, to registered voters notwithstanding the restriction, recognizing that “[t]he First Amendment protects not only the Plaintiffs’ right to
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engage in incidental speech with prospective voters, but also their right to do so while engaging in the act of registration.” 690 F. Supp. 2d at 1217 (emphasis added). This reasoning applies with equal force here, and the Court should find that Plaintiffs’ voter assistance is expressive conduct protected by the First Amendment. Furthermore, assisting with all aspects of requesting mail-in ballots, including “completing,” “signing,” and “delivering” them, has educational and communicative aspects, and restricting the Organizational Plaintiffs’ ability to do so harms the effectiveness of their message. Nicholas Decl. ¶¶ 13–14; Lopez Decl. ¶¶ 16, 22–24. And “ministerial conduct” that facilitates voting (such as “delivering” ballots) “acquire[s] First-Amendment protection when done in a setting or manner in which the message becomes apparent,” i.e., that the act of voting and helping others to vote promotes democracy. Herrera, 690 F. Supp. 2d at 1216.
Finally, Intervenor-Defendants’ reliance on Voting for America, Inc. v. Steen is misplaced. In Voting for America, the law at issue limited voter registration volunteers by geography and thus “neither regulate[d] nor limit[ed] . . . constitutionally protected speech,” which the court found to
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include “‘urging’ citizens to register; ‘distributing’ voter registration forms; ‘helping’ voters to fill out their forms; and ‘asking’ for information to verify that registrations were processed successfully,” 732 F.3d 382, 389 (5th Cir. 2013), i.e. conduct like that at issue here.
D. Procedural Due Process As to Plaintiffs Clark, Cates, Edwards, Priddy, Hutchins, and Bentley’s procedural due process claim, Defendants do not invoke any state interest that could outweigh the risk of erroneous disenfranchisement. See Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017) (holding that to assess a due process claim, a court “evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake.”). State Defendants do not dispute that Plaintiffs have a liberty interest in casting an absentee ballot, and their purported administrative interests concerns with providing this cure process are directly contradicted by their asserted, though not detailed or effectuated, intent to develop a standardized, statewide cure process. Doc. 58 at 35–36. In any event, that it may be easier for election
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officials to simply reject these ballots than to offer voters the opportunity to fix disqualifying errors cannot justify depriving Plaintiffs of the right “preservative of other basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).
Intervenor-Defendants mischaracterize Plaintiffs’ request as requiring county board of elections to conduct hearings on each ballot flagged for disqualifying deficiencies. Doc. 51 at 52–53. Accordingly, their assertion that the requested relief is “overly burdensome,” id., is irrelevant because Plaintiffs have requested only that voters have the opportunity to “cure,” or correct, errors following notice. Their assertion that North Carolina law does not create an interest in casting an absentee ballot is similarly misplaced, as this interest is quite clearly created by state law. Plaintiffs have a statutory right to vote by mail. See N.C. Gen. Stat. § 163-226(a). North Carolina has rejected absentee ballots at exceptionally high rates from 2012-2018, Gronke Decl. ¶¶ 17, 37, as well as in the March 3, 2020 primary, in which of the 15% rejected absentee ballots at least 48% and as many as 78% could have been cured. Ketchie Reply Decl. ¶ 7, Ex. 3. Standardized curing procedures could
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be helpful in preventing erroneous deprivation. Gronke Reply Decl. ¶¶ 32–35. Other courts have recognized that these rejections violate due process and required election officials to provide voters with the opportunity to cure deficiencies in their mail-in absentee ballots. See, e.g., Self Advocacy Sols. N.D. v. Jaeger, 2020 WL 3068160 (D.N.D. June 5, 2020); Stip. & Order Granting Prelim. Inj., League of Women Voters of N.J. v. Way, No. 3:20-cv-05990, ECF No. 34 (D.N.J. June 16, 2020) (Ex. 1).
Finally, Intervenor-Defendants do not explain how offering voters the opportunity to cure deficiencies in their mail-in ballots would burden election officials. The responsive declarations of county board members from Wake (Hawkins) and Cumberland (Devore) counties,8 discuss their respective counties’ existing cure processes, see Hawkins Decl. ¶ 8; Devore Decl. ¶ 11, without identifying any hardship in implementing these procedures. Secretary Devore even
8 Only Plaintiff Clark lives in Wake County. None of the individual Plaintiffs live in Cumberland County. Ms. Hawkins does not describe Wake County’s cure process in her declaration, nor did the Intervenor-Defendants attach a copy of the procedures as an exhibit to their brief, thus preventing the Court from assessing the procedures’ constitutional adequacy.
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describes how, under Cumberland County’s procedures, election officials recently contacted some 3,000 voters, providing them with the proper absentee ballot request forms after the board received pre-populated forms submitted in these voters’ names. Devore Decl. ¶ 11. If, as Intervenor-Defendants claim, Wake and Cumberland Counties have already successfully implemented ballot cure procedures that comport with constitutional requirements with little or no burden, it is unclear why other counties would be unable to do the same, especially if, as Intervenor-Defendants note, “millions of citizens every year are able to successfully cast absentee ballots across the country.” Doc. 51 at 11.
E. ADA /Rehabilitation Act Under the ADA and RA, Plaintiffs Clark, Edwards, and Priddy must be allowed to complete FWABs in the event their absentee ballots are not delivered on time. Second Am. Compl., Doc. 30 ¶¶ 144–49. Defendant-Intervenors argue that these Plaintiffs have “suffered no injury-in-fact and do not have a ripe claim” under the ADA or the RA because it is speculative whether they will receive their absentee ballots in time. Doc. 51, at 53. However, a plaintiff need not wait for “the consummation of threatened injury to obtain
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prospective relief.” Farmer v. Brennan, 511 U.S. 825, 845 (1994) (quotation marks omitted). Rather, a plaintiff seeking prospective relief must establish that the “perceived threat . . . is sufficiently real and immediate to show an existing controversy.” Blum v. Yaretsky, 457 U.S. 991, 1000 (1982) (quotation marks omitted). The recent evidence from Ohio, Pennsylvania, Georgia, Wisconsin, and Florida show that state and local election officials, as well as the USPS, have failed to timely deliver thousands of absentee ballots to voters in the mail because of the significant increase in voting-bymail. Gronke Reply Decl. ¶¶ 25–27. This experience shows that delayed ballots present a real and immediate threat. And due to the pandemic, Plaintiffs Clark, Edwards, and Priddy cannot vote in person. As a result, they will be denied their right to vote without the option to use FWABs—an option that is already available to overseas citizens and military personnel.
Intervenor-Defendants assert that Plaintiff Hutchins—a 91-year-old, blind and hard-of-hearing veteran who is under lockdown in a nursing home—has no standing or a ripe claim under the ADA and RA. But the Fourth Circuit has held that the ADA prohibits voting barriers even where one has a
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“choice” of other voting methods. See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 (4th Cir. 2016) (ADA challenge to “inaccessible” absentee voting not barred by availability of “accessible” in-person voting). Moreover, IntervenorDefendants’ proposed alternatives are unreasonable in light of the COVID-19 pandemic. They propose that Plaintiff Hutchins (1) wait to see if the nursing home will lift lockdown—which is unlikely, especially since Governor Cooper postponed North Carolina’s entrance into Phase 3 as a result of growing COVID-19 cases, Murray Decl. ¶¶ 33–44; see also Latest Coronavirus Updates, The Davis Community (July 2, 2020) (nursing home will operate in “restricted mode” through “Phase 2 or Phase 3”)9; (2) rely on MAT members—who will not be allowed into the nursing home due to the lockdown, Hutchins Decl. ¶ 6; see also Latest Coronavirus Updates, The Davis
9 Available at https://www.thedaviscommunity.org/latestcoronavirus-updates/ (last accessed July 3, 2020). Plaintiff Hutchins’ nursing home has experienced a low number of cases of COVID-19, and no deaths. See COVID-19 Ongoing Outbreaks in Congregate Living Settings (July 2, 2020), NC Dept. of Health and Human Services, available at https://files.nc.gov/covid/documents/dashboard/WeeklyCOVID19-Ongoing-Outbreaks.pdf (last accessed July 3, 2020) (showing only 3 cases and 0 deaths for Davis Health Care Center, versus, e.g., 130 cases and 22 deaths at Peak Resources Charlotte).
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Community (July 2, 2020) (restricting “visitation of ALL visitors until further notice”) (emphasis in original)10 and will likely be unavailable regardless, see Myers Decl. ¶¶ 3, 6, Ex. A, at 1, or (3) obtain assistance from a nursing home resident to fill out his ballot—but residents have been instructed to maintain social distancing.
More fundamentally, the ADA and RA do not require Plaintiffs to prove that they are completely unable to enjoy a service, program, or activity—only that such participation is not readily accessible. See Lamone, 813 F.3d at 503. By refusing to make reasonable accommodations for ADA/RA Plaintiffs in light of the global pandemic, ADA/RA Plaintiffs do not have “meaningful access” to the opportunity to cast an absentee ballot and will be unable to exercise their constitutional right to vote. See id.
Finally, amici Republican Committees argue that the accommodations the ADA/RA Plaintiffs seek would “fundamentally alter the nature of North Carolina’s elections” by eliminating voter fraud protections. Doc. 52-3 at 25. But the Witness Requirement does little to prevent
10 Available at https://www.thedaviscommunity.org/latestcoronavirus-updates/(last accessed July 3, 2020).
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fraud or preserve the integrity of elections, see supra at 19, and the Republican Committees offer no reason why allowing nursing home staff to assist Plaintiff Hutchins implicates those concerns, or how FWABs, which are already used by overseas civilians and military personnel, fundamentally alter the elections. Further, numerous other states do not have a witness requirement, and in other contexts, courts have stricken similar laws restricting who may assist the voter. See, e.g., Priorities USA v. Nessel, 2020 WL 2615766, at *14 (E.D. Mich. May 22, 2020) (plaintiffs “stated a claim for preemption” of Michigan law that restricted voters to seeking assistance from “a member of the voter’s household or family” or “an elector registered in Michigan”).
F. Section 208 Section 208 of the Voting Rights Act guarantees Plaintiff Hutchins and others who “require[] assistance to vote by reason of blindness, disability, or inability to read or write” to “assistance by a person of the voter’s choice, other than … agent[s] of [the voter’s] employer or … union.” 52 U.S.C. § 10508. This right extends to “all action necessary to make a vote effective,” including “registration” and other “prerequisite[s] to voting.” Id. § 10310(c)(1). Hutchins’
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claim is simple: Section 208 entitles him to the assistance of the staff at his nursing home in completing and submitting the ballot itself. By forbidding him from obtaining this assistance, several provisions of North Carolina law violate Section 208. See SAC at 76 (citing N.C. Gen. Stat. §§ 163226.3(a)(4)-(6), 163-230.2(e)(4), 163-231(b)(1)). Defendants do not dispute that he is entitled to relief on this claim.
Intervenor-Defendants nonetheless contend that Hutchins is not “threatened with an injury that would provide standing to challenge” these restrictions because, in their view, he could “send the [ballot] request himself” or ask his wife to do so and could obtain assistance completing the ballot from his “wife,” “a MAT member,” or “other nursing home residents.” Doc. 51 at 55–56. Factual inaccuracies aside, IntervenorDefendants misapprehend the injury-in-fact requirement. Hutchins claims he is “legally entitled” to choose nursing home staff for assistance and that “the denial of” this right impedes his ability to vote. Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017); see Doc. 11-9 at 3– 4 (Hutchins Decl. ¶¶ 11–12). This interference with Hutchins’ ability to vote constitutes “a ‘real’ harm with an adverse
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effect” and thus suffices to establish his standing. Dreher, 856 F.3d at 345.
Intervenor-Defendants’ arguments on the merits are foreclosed by the plain text of Section 208. Reasoning from the premise that the State may “narrow[] … a voter’s choice” of assistors, Intervenor-Defendants defend the challenged provisions on the ground that “North Carolina law leaves Hutchins with many options” for assistance. Doc. 51 at 57. This argument fails with the premise. As numerous courts have held, Section 208 unambiguously entitles eligible voters to assistance from “a person of the voter’s choice” and preempts state laws to the contrary. 52 U.S.C. 10508 (emphasis added); see OCA-Greater Houston v. Texas, 867 F.3d 604, 615 (5th Cir. 2017) (Texas statute limiting eligible assistors “impermissibly narrow[ed] the right guaranteed by Section 208”); Priorities USA, 2020 WL 2615766, at *14 (plaintiffs “stated a claim for preemption” of Michigan law that restricted voters to seeking assistance from “a member of the voter’s household or family” or “an elector registered in Michigan”); United States v. Berks Cty., 277 F. Supp. 2d 570, 580 (E.D. Pa. 2003) (county cannot “deny Spanish-speaking voters . . . the right to … their assistor of choice”).
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Indeed, in DiPietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Commw. Ct. 1996), which Intervenor-Defendants cite, the court held that “the trial court properly allowed a disabled voter to appoint a person of his or her choice to obtain [and deliver] an absentee ballot application [and] completed ballot.” Id. at 1135. Intervenor-Defendants’ interpretation, in contrast, would rewrite the statute into a guarantee of assistance by a person of the state’s choice.
In addition, because “[t]he expression of one thing implies the exclusion of others,” Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018), Section 208’s express limitation with respect to “agent[s] of [the voter’s] employer or … union,” confirms that the “voter’s choice” remains otherwise unrestricted, 52 U.S.C. § 10508.
Even assuming that states may limit voter choice “to prevent fraud or undue influence,” Doc. 51 at 57, IntervenorDefendants offer no reason why allowing nursing home staff to assist Plaintiff Hutchins would implicate those concerns at all, let alone why such assistance is riskier than IntervenorDefendants’ preferred approach of having Plaintiff Hutchins rely on “any resident of [his] nursing home,” id. IntervenorDefendants concede as much by suggesting that a nursing home
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“staff person … accompany him to vote absentee at a one-stop voting location,” or “help Hutchins with his ballot at a polling place on election day.” Id. at 58.
Finally, Intervenor-Defendants reimagine Section 208 as requiring only “one means by which [a voter] can cast his ballot with help from a person of his choice,” such as inperson voting, leaving the State free to restrict assistance for all other modes of voting. Doc. 51 at 57–58. No court has adopted such a stingy reading of Section 208, and for good reason: Intervenor-Defendants’ understanding of the statute is wholly atextual. Tellingly, they fail to point to any aspect of the statutory text that supports their ipse dixit interpretation of Section 208.
III. Other Equitable Factors Favor Issuance of an Injunction
Plaintiffs rest on their opening brief’s discussion of the equitable factors and respond here only to the specific arguments they have not previously addressed.
A. Plaintiffs’ requested injunction is not “overbroad.”
Intervenor-Defendants suggest that Plaintiffs’ requested injunction is “overbroad,” and that any relief should be applied only to Plaintiffs to avoid “contraven[ing] Fourth
51
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Circuit precedent on the appropriate scope of injunctive relief.” This Court has directly rejected such narrow applications of injunctive relief. See, e.g., Guilford Coll. v. McAleenan, 389 F. Supp. 3d 377, 397 (M.D.N.C. 2019) (“However, ‘an injunction is not necessarily made overbroad by extending the benefit of protection to persons other than prevailing parties in the lawsuit . . . if such breadth is necessary to give prevailing parties the relief to which they are entitled.’” (citation omitted)).” In other words, “[t]here is no general requirement that an injunction affect only the parties in the suit.” Id. Without the full scope of requested relief, Plaintiffs face a high likelihood of disenfranchisement during the November 2020 election, and Organizational Plaintiffs will be harmed in advancing their core mission in helping voters’ participation. That others across the state may benefit from a ruling in favor of the Plaintiffs is no bar to the injunctive relief requested.
B. Purcell Does Not Preclude Relief. Contrary to Intervenor-Defendants’ contentions, Purcell v. Gonzalez does not create a per se rule that courts must reject any request for injunctive relief as to voting rules brought within a certain timeframe before an election.
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Rather, Purcell directs federal courts to weigh “considerations specific to election cases”—namely the risks of voter of confusion, increased administrative burdens, and suppressed turnout—amongst the normal equitable factors for issuance of an injunction. 549 U.S. 1, 4–5 (2006).
The Purcell factors “demand[ ] ‘careful consideration’ of any legal challenge that involves ‘the possibility that qualified voters might be turned away from the polls.’” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 387 (6th Cir. 2008) (quoting Purcell, 549 U.S. at 4). Accordingly, injunctions are appropriate where, as here, the challenged law or rule would have the effect of disenfranchising voters. See League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (approving injunction related to voter registration form less than two weeks before relevant registration deadlines); Obama for Am. v. Husted, 697 F.3d 423, 436-37 (6th Cir. 2012); Land, 546 F.3d at 387 (denying defendants’ motion to stay district court’s order granting preliminary injunction, issued twenty-two days before Election Day).
For the same reasons, Purcell does not bar relief here. The relief requested will facilitate and increase voter
53
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turnout, is required to prevent voter suppression, and will not cause voter confusion. Furthermore, many aspects of the requested relief will alleviate administrative burdens, such as lifting the geographical restriction on poll worker recruitment, reducing the processing time for absentee ballot requests and ballots by lifting the witness requirement, providing counties with flexibility in their early voting hours, and eliminating the need to review witness certification. Even if this were not true, the Supreme Court has soundly rejected arguments that increased administrative burdens override First Amendment rights, see Tashjian v. Republican Party of Conn., 479 U.S. 208, 218 (1985); the same principle should apply with even greater force in a case that concerns voters’ rights to cast their ballots in the face of a deadly pandemic.
Finally, Intervenor-Defendants’ contentions that this lawsuit was not timely filed are disingenuous given their own failure to enact HB 1169 until June—months before a presidential election, months after Executive Director Bell’s March 26, 2020 letter, and without any apparent concerns for voter confusion and the time left to administer these changes. If the Legislature’s ameliorative legislation is not too
54
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late, then neither is this ameliorative litigation. Finally,

these arguments directly contradict their previous statements

criticizing Plaintiffs for not waiting to sue until after HB

1169 was enacted. Doc. 64 at 2.

For the reasons stated above, Plaintiffs’ Amended Motion

for Preliminary Injunction should be granted.

Dated: July 3, 2020.

Respectfully submitted,

/s/ Jon Sherman Jon Sherman D.C. Bar No. 998271 Michelle Kanter Cohen D.C. Bar No. 989164 Cecilia Aguilera D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 Telephone: (202) 331-0114 Email: jsherman@fairelectionscenter.or g mkantercohen@fairelectionscente
r.org caguilera@fairelectionscenter.o
rg

/s/ Hilary Harris Klein Allison J. Riggs (State Bar #40028) Jeffrey Loperfido (State Bar #52939) Hilary Klein (State Bar #53711) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707 Telephone: 919-323-3380 Facsimile: 919-323-3942 Email: Allison@southerncoalition. org
jeff@southerncoalition.o rg

/s/ George P. Varghese George P. Varghese (Pa. Bar No. 94329) Joseph J. Yu (NY Bar No. 4765392) Stephanie Lin (MA Bar No. 690909) Rebecca Lee (DC Bar No. 229651) Richard A. Ingram (DC Bar

55

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No. 1657532) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email: george.varghese@wilmerhale
.com joseph.yu@wilmerhale.com stephanie.lin@wilmerhale.c
om rebecca.lee@wilmerhale.com rick.ingram@wilmerhale.com
56
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WORD CERTIFICATION Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for Plaintiffs’ Reply in Support of Their Amended Motion for Preliminary Injunction is 9995 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of Microsoft Word, which was used to prepare the brief.
/s/ Hilary Harris Klein Hilary Harris Klein
57
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,
Plaintiffs, vs.
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; KEN RAYMOND, 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; DAVID C. BLACK, in his 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; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN,

Civil Action No. 20-cv-457
BRIEF OF AMICI CURIAE REPUBLICAN COMMITTEES

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in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
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,
Intervenors. BRIEF OF AMICI CURIAE REPUBLICAN COMMITTEES
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii INTERESTS OF THE AMICI...................................................................................1 INTRODUCTION .....................................................................................................1 BACKGROUND .......................................................................................................2 STANDARD OF REVIEW .......................................................................................5 ARGUMENT .............................................................................................................7 I. Plaintiffs’ Suit Is an Affront to the Constitutional Order................................7 II. The Enactment of H.B. 1169 Moots a Significant Portion of Plaintiffs’
Claims. ...........................................................................................................11 A. Challenges to the Requirements for “Two Witnesses” and
Absentee Ballot Procedures Are Moot................................................12 B. Plaintiffs’ Procedural Due Process Claim is Now Moot.....................14 C. Plaintiffs’ Have No Voting Rights Act Claim. ...................................14 III. Plaintiffs Are Unlikely To Succeed on the Merits of Claims Involving North Carolina’s Administration and Oversight of Voting...........................15 A. North Carolina’s Voting Laws Do Not Unduly Burden the
Plaintiffs’ Right to Vote. .....................................................................15 B. The North Carolina Absentee Voting Laws Do Not Implicate
Plaintiffs’ First Amendment Rights. ...................................................19 C. The Voting Laws Do Not Violate the ADA or Rehabilitation
Act. ......................................................................................................22 1. North Carolina Adopted Reasonable Accommodations for
Voters under the ADA and Rehabilitation Act.............................22
2. North Carolina’s Voting Laws Do Not Have a Disparate Impact on Disabled Voters. ..........................................................25
IV. A Stay is Appropriate to Assess the State’s Election Reforms. ....................26 CONCLUSION ........................................................................................................27
i
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TABLE OF AUTHORITIES
Page(s)
Cases
A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270 (11th Cir. 2018) ..........................................................................23
Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................................................................5
B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152 (2d Cir. 2016) ...............................................................................26
Bostock v. Clayton Cty., Georgia, 2020 WL 3146686 (U.S. June 15, 2020) ......................................................10, 18
Brooks v. Vassar, 462 F.3d 341 (4th Cir. 2006) ..............................................................................15
Burdick v. Takushi, 504 U.S. 428 (1992)..............................................................................................5
Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992)................................................................................................11
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)..............................................................................6, 9, 16, 21
Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997) ..............................................................................26
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)..............................................................................................9
Goldstein v. Sec’y of Commonwealth, 484 Mass. 516 (2020) .........................................................................................10
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ...............................................................................24
J. D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663 (4th Cir. 2019) ..................................................................22, 23, 24 ii
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Key v. Bd. of Voter Registration of Charleston Cty., 622 F.2d 88 (4th Cir. 1980) ................................................................................16
Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018) ............................................................................20
Kremens v. Bartley, 431 U.S. 119 (1977)......................................................................................11, 12
League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298 (S.D. Fla. 2008) ...............................................................20
Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) ..............................................................6, 17, 23, 25
Massachusetts v. Oakes, 491 U.S. 576 (1989)............................................................................................12
MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335 (4th Cir. 2001) ................................................................................5
N.C. Growers’ Ass’n, Inc. v. Solis, No. 1:09CV411, 2011 WL 4708026 (M.D.N.C. 2011)......................................11
N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012) ..............................................................................11
N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020)..................................................................................12, 13
Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) ..........................................................................7, 22
Parson v. Alcorn, 157 F. Supp. 3d 479 (E.D. Va. 2016) ...............................................................5, 6
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001)............................................................................................23
Pope v. Easley, 354 N.C. 544 (2001) .........................................................................................8, 9
iii
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Princeton Univ. v. Schmid, 455 U.S. 100 (1982)............................................................................................12
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006)..............................................................................................19
Seremeth v. Bd. of Cty. Comm’rs Frederick Cty. ¸673 F.3d 333 (4th Cir. 2012) ...............................................................................6
Texas v. Johnson, 491 U.S. 397 (1989)............................................................................................19
Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565 (2d Cir. 2003) ...............................................................................26
U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556 (1986)............................................................................................12
Voting for America v. Steen, 732 F.3d 382 (5th Cir. 2013) ..................................................................19, 20, 21
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)..................................................................................................5
Statutes
H.B. 1169, Bipartisan Elections Act of 2020 (N.C. 2020) ...............................passim
N.C.G.S. 163-226.3..................................................................................................19
N.C.G.S. § 163-42(b) ...........................................................................................4, 13
N.C.G.S. § 163-82.6(d)(1) .........................................................................................3
N.C.G.S. § 163-226.3...........................................................................................3, 19
N.C.G.S. § 163-227.6(c) ............................................................................................4
N.C.G.S. § 163-230.2...............................................................................................19
N.C.G.S. § 163-230.2(a), (e)(1) .................................................................................3
N.C.G.S. § 163-231..................................................................................................15
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N.C.G.S. § 163-231(a) ...............................................................................................3 N.C.G.S § 163-231(b)(1) ...........................................................................................3 Voting Rights Act of 1965 Section 208, 52 U.S.C. § 10508...................................14 Other Authorities 28 C.F.R. § 35.130 ...................................................................................................25 First Amendment..........................................................................................19, 20, 21 U.S. Const. art. I, § 4, cl. 1.........................................................................................1
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INTERESTS OF THE AMICI The Republican National Committee (“RNC”), the National Republican Senatorial Committee (“NRSC”), and the National Republican Congressional Committee (“NRCC”) are national political party committees and national political organizations of the Republican Party of the United States, and the North Carolina Republican Party (“NCRP”) is a state political organization of the Republican Party (collectively, “Republican Committees”). The Republican Committees represent interests of Republican voters and candidates for federal, state, and local elected offices. They engage in a wide range of party-building activities including voter registration and turnout programs. Based on their experience with these activities in North Carolina and across the country, the Republican Committees have substantial expertise in voting practices and procedures, and their perspectives these matters will assist the Court.
INTRODUCTION The Constitution requires that state legislatures “shall” regulate the “Times, Places and Manner of holding Elections for Senators and Representatives.” U.S. Const. art. I, § 4, cl. 1. Consistent with its authority, the General Assembly enacted, and Governor Roy Cooper signed into law, H.B. 1169, Session Law 2020-17, to address challenges to voting in the 2020 election that might arise from COVID-19. H.B. 1169 provides much of the precise relief requested in Plaintiffs’ initial
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complaint. Dissatisfied with the legislature’s response to the pandemic, Plaintiffs ask
this court to replace the duly enacted legislation with its own policy judgments. Not
only are Plaintiffs’ requests an affront to the constitutional order, they are largely
moot. Plaintiffs are unlikely to prevail on the few claims that might remain.
Accordingly, Amici urge the Court to deny Plaintiffs’ motion, or alternatively, stay
the case to allow the state sufficient time to implement the statute’s protective
measures for voting.
BACKGROUND On June 12, 2020, the North Carolina General Assembly enacted H.B. 1169,
which adopted changes to voting procedures to address the COVID-19 pandemic.
The law:
• Eliminates the requirement that two witnesses or a notary public sign an absentee ballot application (the “Two Witness Requirement”). § 1(a).
• Allows voters to call the State or county board of elections to request a blank absentee ballot request form be sent to the voter via mail, email, or fax. § 5(a).
• Enables voters to request absentee ballots online. § 163-230.3(a). • Allows completed requests for absentee ballots to be returned in
person or by mail, e-mail, or fax. § 2.(a). • Eliminates the precinct residency requirement for poll workers.
§ 1.(b). • Permits “multipartisan team” members to help any voter complete
absentee ballot request forms and absentee ballots. § 1.(c).
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• Provides for “a bar code or other unique identifier” to track absentee ballots. § 3.(a)(9).
• Expands the types of identification an individual can present to vote. § 10(a)(2)(d).
• Requires the Department of Health and Human Services (“DHHS”) and the State Board of Elections (“SBE”) to develop guidance to allow multipartisan teams safely to assist vulnerable registered voters, and to submit a report to the government by August 1, 2020. § 2.(b).
• Appropriates $26 million to the SBE “to prevent, prepare for, and respond to the coronavirus pandemic during the 2020 federal election cycle.” § 11.1.(a).
Because the new law resolved many claims in Plaintiffs’ initial complaint,
Plaintiffs were granted leave to file a Second Amended Complaint, Doc. 30, and an
Amended Motion for Preliminary Injunction, Doc. 31 (“Amended Motion”). The
Amended Motion removed several of Plaintiffs’ earlier claims, but they continue to
challenge provisions:
• Requiring voter registration applications to be postmarked at least 25 days before the election. N.C.G.S. § 163-82.6(d)(1); Am. Mot., Doc. 31 at 4; see also Second Am. Compl., Doc. 30 at ¶ 92.
• Restricting requests for absentee ballots by phone. See N.C.G.S. § 163-230.2(a), (e)(1); Am. Mot., Doc. 31 at 4; Second Am. Compl., Doc. 30 at ¶¶ 103–05.
• Limiting who can assist a voter to return an absentee ballot request, and mark and return an absentee ballot. N.C.G.S. § 163226.3(a)(4)–(6), § 163-231(a), § 163-231(b)(1); Am. Mot., Doc. 31 at 4–5; Second Am. Compl., Doc. 30 at ¶ 96.
• Requiring one witnesses or a notary public to witness and sign an absentee ballot application (the “Witness” requirement). N.C.G.S.
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§ 163-231(a), as amended by H.B. 1169; Am. Mot., Doc. 31 at 5; Second Am. Compl., Doc. 30 at ¶¶ 99–100.
• Requiring that poll workers reside in the county where they serve on election day. See N.C.G.S. § 163-42(b), as amended by H.B. 1169; Am. Mot., Doc. 31 at 5.
• Requiring uniform hours at early voting locations in every county. See N.C.G.S. § 163-227.6(c); Am. Mot., Doc. 31 at 5; see also Second Am. Compl., Doc. 30 at ¶ 110.
• Preventing individuals from submitting alternative proof of residency such as HAVA documents with their absentee request forms. Am. Mot., Doc. 31 at 4; Second Am. Compl. at ¶ 97.
Plaintiffs also contend the laws are insufficient because they do not provide:
• A “fail-safe” option for mail-in absentee voters if state election officials cannot deliver mail-in ballots on time. Am. Mot., Doc 31 at 7; Second Am. Compl. at ¶ 97.
• “Contactless drop boxes” to minimize the possibility of COVID-19 transmission. Am. Mot., Doc. 31 at 6; Second Am. Compl., Doc. 30 at ¶ 103.
• A procedure to cure defects in absentee ballot request forms or absentee ballots. Am. Mot., Doc. 31 at 7; Second Am. Compl., Doc. 30 at ¶ 104.
• A “centralized way” for voters and advocates to “monitor precinct consolidation.” Am. Mot., Doc. 31 at 7; Second Am. Compl., Doc. 30 at ¶ 113.
• Personal protective equipment (“PPE”) for poll workers. Second Am. Compl. at ¶ 114.
• Use of Federal Write-in Absentee Ballots (“FWAB”) if an absentee ballot does not arrive in time. See Second Am. Compl. ¶ 73.
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Plaintiffs ask the Court to declare North Carolina’s voting procedures unlawful, enter an order imposing these additional measures, and supervise Defendants’ compliance with any relief granted. See Second Am. Compl. at 79, 81– 86.
STANDARD OF REVIEW As the Fourth Circuit recognizes, “preliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quotation marks omitted). A plaintiff seeking a preliminary injunction must establish a likelihood of success on the merits, irreparable harm without relief, that the balance of equities tips in plaintiff’s favor, and that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs’ First and Fourteenth Amendment challenges to North Carolina’s voting laws are subject to the “Anderson-Burdick” balancing test set in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). See Parson v. Alcorn, 157 F. Supp. 3d 479, 492 (E.D. Va. 2016). The test requires the Court to (1) “consider the character and magnitude” of any injury to rights protected by the First and Fourteenth Amendments, (2) evaluate the precise interests of the State that justify the burden imposed, and (3) “determine the legitimacy and strength
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of each of [the State’s] interests” and “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Lee v. Va. State Bd. of Elections, 843 F.3d 592, 605 (4th Cir. 2016) (citation and quotation marks omitted). The level of scrutiny depends on the burden: “[w]hen the plaintiffs’ rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance[,]” but “when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Alcorn, 157 F. Supp. 3d at 492. Moreover, the state’s interests are measured against the remedy plaintiffs seek. See Crawford, 553 U.S. at 199–200 (under the balancing test, a court must take into account the specific relief sought by the plaintiffs). State election laws are generally not subject to strict scrutiny, “even though voting rights are fundamental under the Constitution.” Lee, 843 F.3d at 605.
To prevail on their claims under the Americans with Disabilities and the Rehabilitation Acts,1 Plaintiffs must prove they (1) have a disability; (2) are qualified to receive the benefits of a public service, program, or activity; and (3) are denied
1 As Plaintiffs recognize (Doc. 10 at 64 n.10), “[c]laims under the ADA’s Title II and the Rehabilitation Act can be combined for analytical purposes because the analysis is ‘substantially the same.’” Seremeth v. Bd. of Cty. Comm’rs Frederick Cty.¸673 F.3d 333, 336 n.1 (4th Cir. 2012) (citation omitted).
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those benefits or otherwise discriminated against because of their disabilities. Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494, 502–03 (4th Cir. 2016).
ARGUMENT Plaintiffs’ case for a preliminary injunction fails. First, the authority to regulate elections is vested in the General Assembly, not the courts. Second, H.B. 1169 moots a significant portion (if not all) of Plaintiffs’ claims. Third, Plaintiffs’ remaining challenges, such as to the 25-day post-mark requirement for absentee ballots and uniform voting hours for early voting, are unlikely to prevail on the merits. Finally, Plaintiffs’ request for injunctive relief is premature because H.B. 1169 requires state officials to evaluate the new voting procedures to determine if they are sufficient to address any impediments to voting that might be caused by the pandemic. A preliminary injunction would undermine that evaluation. Accordingly, if the Court were inclined to issue relief, Amici urge the Court to enter a brief stay to allow the State to complete its evaluation, and then determine if H.B. 1169 addresses Plaintiffs’ remaining claims. I. Plaintiffs’ Suit Is an Affront to the Constitutional Order. In June, by a vote of 105-14 in the House and 37-12 in the Senate, strong bipartisan majorities of the legislature passed H.B. 1169, and Governor Cooper signed the bill into law. See Declaration of Matthew Leland (June 26, 2020) (“Leland Decl.”), Exhibit 1 (H.B. 1169, Voting Record). The legislation responds
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directly to the possible effect of the pandemic on the election. By passing H.B. 1169, the General Assembly fulfilled its obligation under Article I, Section 4, of the United States Constitution, which mandates that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” It also acted in accord with the North Carolina Constitution, which provides that the legislative power rests “with the people and is exercised thorough the General Assembly, which functions as the arm of the electorate.” Pope v. Easley, 354 N.C. 544, 546 (2001).
Plaintiffs invite this Court to ignore the constitutional order and substitute its judgment for the collective judgment of two duly elected houses of the General Assembly and the duly elected Chief Executive. The issues before this Court were presented to the General Assembly, fully considered, and resolved. Acting swiftly and deliberately, the legislature balanced policy goals, reached compromises, and enacted substantial legislation to address the pandemic. Not every legislator got what he or she wanted, but H.B. 1169 represents an appropriate resolution.2 The
2 See Leland Decl. Ex. 2 (Wilkie, NC House Passes Bipartisan Election Bill To Fund COVID-19 Response, Carolina Public Press (May 29, 2020) (quoting Democratic representative Allison Dahle: “[n]either party got everything they wanted,” but the “compromise bill” was “better for the people of North Carolina.”); Ex. 3 (Pulliman, NC Lawmakers to Discuss Bipartisan Bill on Absentee Voting this Week, 11 Eyewitness News (May 26, 2020) (quoting Democrat Pricey Harrison: it was “an inspiring experience to work across the aisle and across chambers to come up with a bill that’s common sense that also helps voters.”).
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process worked exactly as the United States and North Carolina Constitutions require. See id. at 546, 354 (under the North Carolina Constitution, an act of the General Assembly is “an act of the people and is presumed valid unless it conflicts with the Constitution”) (emphasis and citation omitted). It is not for the judiciary to second guess those judgments. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985) (“unelected federal judiciary” should not decide “which state policies it favors and which ones it dislikes”).
It is true, of course, that if the General Assembly intrudes upon the rights of citizens, the injured citizens often have recourse to the Courts. But, even then, the judiciary’s role is limited. E.g. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203 (2008) (“[w]hen evaluating a neutral, nondiscriminatory regulation of voting procedure, ‘[w]e must keep in mind that ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”) (citations omitted). In this case, Plaintiffs do not ask the Court to declare individual statutes unconstitutional. They do not even claim the statutes were invalid before the recent pandemic or that the General Assembly failed to respond expeditiously. Rather, they complain that the General Assembly did not act in the manner the Plaintiffs believe most appropriate. As relief, they boldly demand that this Court impose a brand-new election scheme to their liking, discarding the public policy balance reached by the General Assembly. It is no exaggeration that Plaintiffs are asking the Court to usurp
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the role vested by the Constitution in the legislature, to rewrite election laws of North Carolina, and then to task itself with administering the implementation of this antidemocratic scheme.
As the United States Supreme Court admonished last week, however, “judges [] possess no special expertise or authority to declare [] what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.” Bostock v. Clayton Cty., Georgia, 2020 WL 3146686, at *17 (U.S. June 15, 2020).
To support their demands, Plaintiffs may point to broad judicial statements from unrelated contexts, or to relatively rare instances in which federal courts have modified or invalidated State election statutes. Almost all those decisions were based on alleged racial discrimination—which is not alleged here. And the Republican Committees are aware of no decision in which a federal court expansively rewrote a State election statute within weeks of the statute’s passage, on the ground that the statute might be insufficient to solve the problem the General Assembly explicitly addressed.3
3 Cf., Goldstein v. Sec’y of Commonwealth, 484 Mass. 516, 532 (2020) (due to legislature’s failure to act, ordering temporary reduction in signature requirements and extension of deadlines for candidate petitions).
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II. The Enactment of H.B. 1169 Moots a Significant Portion of Plaintiffs’ Claims. Federal courts lack authority to rule on moot questions. Church of Scientology
of Cal. v. United States, 506 U.S. 9, 12 (1992). This principle applies when a plaintiff challenges a law that is subsequently amended or repealed. See N.C. Growers’ Ass’n, Inc. v. Solis, No. 1:09CV411, 2011 WL 4708026, at *2–4 (M.D.N.C. Oct. 4, 2011) (Osteen, Jr., J.) (implementation of new rule mooted challenge to previous rule), aff’d sub nom. N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012).
The Supreme Court’s decision in Kremens v. Bartley, 431 U.S. 119 (1977), is illustrative. The district court found unconstitutional portions of a statute governing voluntary commitment to mental health institutions. Pennsylvania “enacted a new statute substantially altering its voluntary admission procedures” which “completely repeal[ed] the provisions” the district court found unconstitutional. Id. at 126. Emphasizing that “[c]onstitutional adjudication [is] a matter of ‘great gravity and delicacy,’” id. at 127–28 (quoting Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring)), the Supreme Court held the new statute “eradicated” the plaintiffs’ challenges to the previous law, and “clearly moot[ed]” the plaintiffs’
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claims.4 Id. at 129. Here, H.B. 1169 renders most of Plaintiffs’ challenges to the state’s voting procedures moot. For those not expressly mooted, H.B. 1169 expresses a legislative judgment that Plaintiffs’ proposals are unsound.
A. Challenges to the Requirements for “Two Witnesses” and Absentee Ballot Procedures Are Moot.
Of all Plaintiffs’ original claims, the Two Witness requirement and the inability to request absentee ballots by phone or online were at the forefront. For instance, Plaintiff Clark alleges he is house-bound because he fears contracting COVID-19 and already applied for his ballot. Second Am. Compl., Doc. 30 at ¶ 17. He alleges his “wife could serve as one witness for his mail-in absentee ballot,” but he could not safely obtain a second witness because of health risks and did “not know how he can safely cast a ballot by mail.” Doc. 27-2 at ¶ 17. Similarly, Plaintiff Cates alleges she never voted by mail but if she could submit an absentee ballot request online or by phone, she would do so. Second Am. Compl., Doc. 30 at ¶ 18. Cates has only one person to witness her ballot. Doc. 27-2 at ¶ 18. H.B. 1169’s elimination of the Two Witness requirement and procedure for requesting absentee
4 See also, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (amendment mooted challenge to old law); Massachusetts v. Oakes, 491 U.S. 576, 578, 582–83 (1989) (amendment mooted First Amendment overbreadth challenge); U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556, 557–60 (1986) (amendment mooted challenge); Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (amendment to regulation mooted challenge to earlier regulation).
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ballots by phone or online gave these Plaintiffs the relief they seek. The same is true for other provisions of the election code challenged by Plaintiffs. Compare N.C.G.S. § 163-42(b) (requirement that a majority of poll workers reside in the precinct where they serve on election day), with H.B. 1169 Section 1.(b) (eliminating this requirement); compare Second Am. Compl. ¶ 104 (seeking procedure for curing defects in absentee ballots), with H.B. 1169 at Section 3.(a)(b)(9) (requiring a “bar code or other unique identifier” to allow county board of elections and voter to track ballot); compare Second Am. Compl. ¶¶ 103, 114 (seeking provision of PPE at voting sites and contactless drop boxes for absentee ballots), with H.B. 1169 Section 11.1.(a) (appropriating over $26 million to SBE “to prevent, prepare for, and respond to the coronavirus pandemic”); see also Second Am. Compl., Doc. 30 at ¶ 62 (alleging that under H.B. 1169 multipartisan teams may assist voters with completing and delivering an absentee ballot request, but speculating there may not be a sufficient number of team members).
A statutory change giving a party the “precise relief” requested moots claims for declaratory and injunctive relief. N.Y. State Rifle & Pistol Ass’n, Inc., 140 S. Ct. at 1526. Because H.B. 1169 provides Plaintiffs with many of the precise measures they seek, their claims are moot.
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B. Plaintiffs’ Procedural Due Process Claim is Moot. Plaintiffs allege state law provides no remedy to “cure deficiencies” with absentee ballot request forms and absentee ballots. But H.B. 1169 requires that a “bar code or other unique identifier” accompany each absentee ballot return envelope so the county board of elections and voter can track the ballot following the return of the voted ballot to the county board. H.B. 1169 Section 3.(a)(9). The new law ensures voters can track their absentee ballots and monitor them for voting anomalies. H.B. 1169 also allows voters to request ballots online. If their applications are deficient, the portal would likely not accept them, and Plaintiffs will be able to correct the request before re-submitting. This process moots Plaintiffs’ procedural due process claim.
C. Plaintiffs’ Have No Voting Rights Act Claim. Plaintiffs also allege violations of Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508 (“Section 208”), which requires that individuals with blindness, disability, or inability to read or write be permitted to receive assistance with voting. Because of H.B. 1169, that claim is moot, too. Plaintiffs contend individuals covered by Section 208, including Plaintiff Hutchins, require assistance submitting a request for, marking, completing, and delivering an absentee ballot. See Pls’ PI Br., Doc. 10 at 71. H.B. 1169 specifically addresses Plaintiffs’ concerns. First, H.B. 1169 provides that individuals of a
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“multipartisan team” may assist a voter in completing a request for an absentee ballot or in delivering the completed request. H.B. 1169 § 1(c). Second, a member of a multipartisan team may assist with delivery of the completed absentee ballot. H.B. 1169 §2.(a). Third, DHHS and SBE will develop guidance to “safely allow multipartisan teams to assist registered voters within hospitals, clinics, nursing homes, assisted living or other congregate living situations” in the 2020 election. H.B. 1169 § 2.(b). Finally, N.C.G.S. § 163-231 provides that, in addition to completing the ballot herself or himself, a voter may “cause [an absentee ballot] to be marked . . . in the voter’s presence according to the voter’s instruction.”
In these ways, H.B. 1169 addresses Plaintiffs’ concerns, and thus moots their claims. See Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006). III. Plaintiffs Are Unlikely To Succeed on the Merits of Claims Involving
North Carolina’s Administration of Voting. A. North Carolina’s Voting Laws Do Not Unduly Burden the Right to
Vote. The Second Amended Complaint asserts violations of the First and Fourteenth Amendments based on the following provisions: (1) the requirement that voters register to vote at least 25 days before the election; and (2) the regulation allowing only a voter’s near relative, verifiable legal guardian, or multipartisan team member to help complete and deliver an absentee ballot. See Second Am. Compl., Doc. 30 at ¶¶ 88–115. Plaintiffs also challenge the General Assembly’s failure to adopt
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contactless dropboxes for voting and a “fail-safe” option for mail-in absentee voters if state election officials cannot successfully deliver mail-in ballots on time. E.g., Pls’ PI Br., Doc. 10 at 17, 21–22, 36–47.
Plaintiffs’ claims fail because North Carolina’s voting regulations meet the Anderson-Burdick test. The burden to the Plaintiffs from the regulations, if any, is minimal, they are applied neutrally, and they concern legitimate state interests, including protecting the integrity and reliability of the electoral process. See, e.g., Crawford, 553 U.S. at 191–96 (recognizing states’ legitimate interests in protecting the integrity and reliability of the electoral process in the context of an Equal Protection challenge to a voter identification requirement).
First, it is not unduly burdensome to voters—and is indeed common—to require registration by mail, through state agencies, or online through the Department of Motor Vehicles at least 25 days before an election. At least 13 other states impose registration cutoffs of at least 25 days before an election. Leland Decl. Ex. 4 (Voter Registration Deadlines).5 North Carolina has “valid and sufficient interests” in imposing registration deadlines so that it can prepare adequate voter records and protect its electoral processes from fraud. See Key v. Bd. of Voter
5 State cutoffs range from 25 days (e.g., New York) to 30 days (e.g., Tennessee).
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Registration of Charleston Cty., 622 F.2d 88, 90 (4th Cir. 1980) (South Carolina’s 30-day pre-registration requirement did not violate constitutional right).
Second, there is, at most, a minimal burden when allowing only a voter’s near relative, a verifiable legal guardian, or a multipartisan assistance team member to help complete and deliver an absentee ballot. See H.B. 1196, Sections 1.(c), 2.(a). And to address the needs of voters who are more vulnerable, H.B. 1169 requires the DHHS and the SBE to develop guidance on how the multipartisan teams can help people in “congregate living situations,” such as nursing homes, to vote in the 2020 election. H.B. 1169, Section 2.(b).
Third, North Carolina has a valid interest in preventing voter fraud. Lee, 843 F.3d at 606 (finding that a voter identification requirement did not unduly burden the right to vote and that Virginia had a valid interest in preventing voter fraud which justified any burden imposed by the law). Indeed, measures limiting who may collect absentee ballots are widely recognized as appropriate and necessary. The bipartisan commission led by former President Jimmy Carter and former Secretary of State James Baker explicitly recommended laws restricting ballot collection by candidates or party workers. See Leland Decl. Ex. 5 (Commission on Federal Election Reform, Building Confidence in U.S. Elections, § 5.2.1 (Sept. 2005) (“the Carter–Baker Report”).
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Finally, Plaintiffs’ demand for contactless dropboxes and federal write-in ballots or other “fail-safe” options for mail-in absentee voters who do not receive their mail-in ballots on time also fails. E.g., Pls’ PI Br., Doc. 10 at 17, 21–22, 36– 47. To begin, the time period within which to request absentee ballots—by 5 p.m. on the Tuesday before the date of the election—is entirely sufficient. And, with over four months before the November election, Plaintiffs have specified no reason why they cannot request their absentee ballots sufficiently in advance to avoid delivery issues. Indeed, Plaintiff Clark has already done so. Further, H.B. 1169 provides options (phone, email, and fax) for requesting mail-in ballots that will expedite the time between request and delivery. And finally, if a voter does not receive the requested ballot in time, the voter always has the option to vote in person.
To the degree the Court has any remaining doubts about the fairness of the ballot delivery process, it can stay this aspect of the case to see how State election officials address it. H.B. 1169 provides funds to address COVID-19, and North Carolina has the discretion to allocate the funds for preventative measures. H.B. 1169, Section 11.1.(a) (appropriating over $26 million to the SBE to “to prevent, prepare for, and respond to the coronavirus pandemic during the 2020 federal election cycle”); Bostock, 2020 WL 3146686, at *17 (noting that “judicial humility” requires courts to “refrain from adding to statutes”). In any event, Plaintiffs have not made the case for a mandatory preliminary injunction.
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B. The North Carolina Absentee Voting Laws Do Not Implicate Plaintiffs’ First Amendment Rights.
The organizational Plaintiffs and Plaintiff Schaffer are also unlikely to prevail on their First Amendment claims. Plaintiffs allege that SB 683 violates their First Amendment rights to free speech and association by impeding their ability to assist voters with absentee ballot request forms. See Pls’ PI Br., Doc. 10 at 55. For the 2020 election, the absentee ballot laws provide that absentee ballot request forms may be delivered by (1) the voter, (2) the voter’s near relative or verifiable legal guardian, or (3) a member of a multipartisan team trained and authorized by the county board of elections pursuant to N.C.G.S. 163-226.3. See H.B. 1169; N.C.G.S. § 163-230.2. The absentee ballot laws also allow a voter’s near relative, legal guardian, or individual working as part of a multipartisan team pursuant to G.S. 163226.3, to assist a voter in preparing a request for an absentee ballot. H.B. 1169; N.C.G.S. § 163-226.3.
The First Amendment forbids only the abridgment of “speech,” and conduct “sufficiently imbued with elements of communication.” Texas v. Johnson, 491 U.S. 397, 404 (1989); see also ex Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (citing Texas v. Johnson and noting that the Court has “extended First Amendment protection only to conduct that is inherently expressive”). If an election law implicates these interests, then the Court must apply the Anderson-Burdick test. See Voting for America v. Steen, 732 F.3d 382, 393 (5th
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Cir. 2013) (Anderson-Burdick balancing test applies if the challenged law implicates First Amendment interests).
Plaintiffs’ claims fail because the absentee ballot laws do not implicate First Amendment rights. Courts have held that submitting completed voter registration forms or completed ballots on behalf of another person is not “speech” or “sufficiently imbued with elements of communication” to qualify for First Amendment freedom of speech protection. Id. at 392 (“[T]here is nothing ‘inherently expressive’ about receiving a person’s completed application and being charged with getting that application to the proper place.”) (citation and quotation marks omitted); League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298, 1319 (S.D. Fla. 2008) (same); Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018) (same). The acts of completing an absentee ballot on behalf of another voter (pursuant to that voter’s desires) and submitting the ballot requests are not materially different from the acts of submitting completed voter registration forms or completed ballots. As the Fifth Circuit concluded in rejecting an analogous claim, “if actually registering citizens to vote is necessary to ‘express’ the canvasser’s belief in the importance of voting, then [plaintiffs] essentially seek a ‘First Amendment right not just to speak out or engage in ‘expressive conduct’ but also to succeed in their ultimate goal regardless of any other considerations.’” Steen, 732 F.3d at 391.
20
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“[O]nly the voter decides to ‘speak’ by registering,” or, in this case, submitting a request for an absentee ballot. Id. at 390.
Even if the North Carolina absentee ballot laws did implicate Plaintiffs’ First Amendment interests, the laws pass the Anderson-Burdick balancing test. See Steen, 732 F.3d at 391 (laws limiting who can handle a completed voter register application pass the Anderson-Burdick balancing test). As the Supreme Court held in Crawford, states have legitimate interests in enacting measures to prevent fraud. 553 U.S. at 194–95 (upholding voter identification requirement against an Equal Protection challenge). Indeed, measures limiting who may collect absentee ballots are widely recognized as appropriate and necessary to prevent fraud, as evidenced by the conclusions of the Carter-Baker commission on election reform, which recommended states enact similar laws to prevent persons, such as employees of the organizational plaintiffs, from handling ballots. See Leland Decl. Ex. 5 (Carter– Baker Report, § 5.2.1).
By contrast, any burden to Plaintiffs is minimal. The organizational Plaintiffs and Plaintiff Schafer remain free to encourage voters to request an absentee ballot and to instruct them how to properly complete the necessary application. And Plaintiffs may also be eligible to become part of the “multipartisan team” that may assist voters with completing absentee ballot requests. See H.B. 1169.
21
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C. The Voting Laws Do Not Violate the ADA or Rehabilitation Act. Plaintiffs argue that North Carolina’s witness requirement and restrictions on assistance in completing absentee ballot request forms and ballots violate the ADA and Rehabilitation Act because they fail to accommodate Plaintiffs’ disabilities. Pls’ PI Br., Doc. 10 at 62–63, 68.
1. North Carolina Adopted Reasonable Accommodations for Voters under the ADA and Rehabilitation Act.
To prevail on their failure-to-accommodate claims, Plaintiffs must prove they (1) have a disability; (2) are qualified to receive benefits of a public service, program, or activity; and (3) are being denied those benefits or otherwise discriminated against because of their disabilities. Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494, 502– 03 (4th Cir. 2016). Plaintiffs cannot satisfy the third requirement, and, in turn, are not entitled to a preliminary injunction.
To show discrimination, Plaintiffs bear the burden of demonstrating that North Carolina has “fail[ed] to make reasonable modifications in policies, practices, or procedures” that implicate Plaintiffs’ absentee voting rights, “when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” J. D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 671 (4th Cir. 2019) (quoting 42 U.S.C. § 12182(b)(2)(A)(ii)). The statute therefore requires Plaintiffs to show Defendants failed to make accommodations that are both necessary and reasonable
22
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in light of Plaintiffs’ alleged disabilities. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001). Neither requirement is satisfied here.
First, H.B. 1169 resolves Plaintiffs’ concerns about absentee voting. Section 1.(a) reduces the witness requirement for absentee ballots, reconciling Plaintiffs’ limited “ability to have contact with others during this pandemic,” Pls’ PI Br., Doc. 10 at 63, with the public’s right to have confidence in the integrity of the election results. See Lee, 843 F.3d at 606. Furthermore, H.B. 1169 accommodates nursing home residents by requiring DHHS and SBE to “develop guidance to safely allow multipartisan teams to assist registered voters” within nursing homes and assisted living or other congregate living situations. H.B. 1169 § 2.(b).
Plaintiffs claim the recent legislation is “inadequate” because more could be done to address their concerns, Second Am. Compl., Doc. 30 at ¶ 7, but this argument falls far short of establishing that Plaintiffs’ proposed modifications are “necessary.” Under the ADA and RA, it is not a requirement to “eliminate all discomfort or difficulty.” A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1296 (11th Cir. 2018). Rather, “[f]acilities need make only reasonable accommodations that are ‘necessary.’” Id. When determining the necessity of a proposed accommodation, the Fourth Circuit “requires an individualized inquiry into the plaintiff’s capacity.” J.D. by Doherty, 925 F.3d at 673. Under that approach, when a defendant has already implemented disability accommodations, “a plaintiff
23
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may still be entitled to something more if he can show that the accommodation does not account sufficiently for his disability.” Id.
Plaintiffs cannot make this showing. North Carolina reduced the two-witness requirement and will provide specialized assistance for vulnerable registered voters who wish to submit absentee ballots. See H.B. 1169 §§ 1.(a), 2.(b). Further accommodations are warranted only if absentee voting remains “beyond the capacity of plaintiffs,” a standard Plaintiffs cannot satisfy because H.B. 1169 provides for absentee voting assistance for registered voters within nursing homes and other congregate living facilities and reduces the witness requirement sufficiently to account for Plaintiffs’ desire to limit social interaction. See id. (citing Argenyi v. Creighton Univ., 703 F.3d 441, 450 (8th Cir. 2013); A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1296 (11th Cir. 2018)).
Second, Plaintiffs cannot show their proposed changes to the law are “reasonable” under the ADA or RA. The ADA requires “reasonable” accommodations for disabilities, a standard satisfied only if the Plaintiffs’ proposed modification is “reasonable on its face, i.e., ordinarily or in the run of cases.” J.D. by Doherty, 925 F.3d at 673. But the North Carolina General Assembly already implemented several measures to address Plaintiffs’ safety concerns, so there is “no need for injunctive relief” when plaintiffs are “already being reasonably accommodated.” Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003).
24
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And, as shown (p. 16 above), North Carolina’s approach is in line with many other states.
Even if Plaintiffs showed their proposed accommodations were prima facie reasonable, those modifications would “fundamentally alter” the nature of North Carolina’s elections because they would eliminate the administration and enforcement of the witness requirement and restrictions on those who can provide absentee ballot assistance. See 28 C.F.R. § 35.130 (requiring public entities to make “reasonable” modifications “necessary to avoid discrimination on the basis of disability, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the service, program, or activity.” (emphasis added)). States have “valid interests in preventing voter fraud,” along with “an independent interest in protecting voter confidence in the integrity of [their] elections.” Lee, 843 F.3d at 607 (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194-97 (2008)). The witness requirement and ballot assistance restrictions are measures approved by the General Assembly to preserve the integrity of North Carolina’s elections.
2. North Carolina’s Voting Laws Do Not Have a Disparate Impact on Disabled Voters.
Plaintiffs have not provided evidence showing the challenged voting laws disproportionately burden disabled voters, and their disparate impact claims fail for that reason. Establishing a prima facie ADA or RA violation under a disparate
25
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impact theory requires a plaintiff to “demonstrate (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016) (internal quotation marks omitted). Plaintiffs failed to identify any evidence that the witness requirement or ballot assistance restrictions have a “significantly adverse or disproportionate impact” on disabled voters, much less the statistical evidence courts routinely expect. See Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 575– 76 (2d Cir. 2003). Instead, Plaintiffs assert that “Defendants’ policies have a disparate impact on vulnerable voters like the ADA/RA Plaintiffs”—a paradigmatic example of the kind of “inference of discriminatory impact” that other circuits have rejected. See id. at 575; Gamble v. City of Escondido, 104 F.3d 300, 306 (9th Cir. 1997). The same result is appropriate here. IV. A Stay is Appropriate to Assess the State’s Election Reforms.
Plaintiffs have not cleared the high bar for entry of a preliminary injunction, and Amici urge the Court to deny any relief. In the alternative, if the Court has doubts about the sufficiency of the new procedures, Amici urge the Court to stay the action until the Board and HHS fulfill their legislative obligation to “develop guidance to safely allow multipartisan teams to assist registered voters within hospitals, clinics, nursing homes, assisted living or other congregate living situations
26
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in the 2020 elections during the COVID-19 pandemic in accordance with law” by
August 1, 2020. H.B. 1169 § 2.(b). As it stands, Plaintiffs’ Motion assumes that
North Carolina will not take appropriate action to modify its election procedures to
account for the pandemic. H.B. 1169 has already proven that assumption false.
Before the Court takes the extraordinary step of imposing new requirements on the
State, the public interest supports a stay of this litigation pending additional guidance
from the Board and HHS.
CONCLUSION For the foregoing reasons, Amici respectfully request that this Court deny
Plaintiffs’ motion or, alternatively, stay this case until further action from the Board
and HHS.
Respectfully submitted this 8th day of July, 2020. Respectfully submitted,
/s/ Bobby R. Burchfield Bobby R. Burchfield Matthew M. Leland King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 Email: bburchfield@kslaw.com Email: mleland@kslaw.com
R. Scott Tobin 27
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North Carolina Bar No. 34317 Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: stobin@taylorenglish.com Counsel for the Republican Committees
28
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STATEMENT PURSUANT TO L.R. 7.5(d) Amici represent that (1) no party’s counsel authored the brief in whole or in part, (2) no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief, and (3) no person—other than amicus, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief. This the 8th day of July, 2020.
/s/ Bobby R. Burchfield Bobby R. Burchfield
1
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CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for this Amici Curiae Brief is 6242 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of Microsoft Word, which was used to prepare the brief.
/s/ Bobby Burchfield Bobby Burchfield
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CERTIFICATE OF SERVICE I hereby certify that on this date, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which automatically sends e-mail notification of such filing to any attorneys of record. This 8th day of July, 2020.
/s/ Bobby Burchfield Bobby Burchfield
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, SUSAN SCHAFFER, and WALTER HUTCHINS,

Case No. 20-cv-457

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, KEN RAYMOND, 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, DAVID C. BLACK, in his 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, THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECURITY, THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, and MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendants,

BRIEF OF AMICUS CURIAE THE PUBLIC INTEREST LEGAL FOUNDATION IN OPPOSITION TO THE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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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.
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INTRODUCTION Plaintiffs ask this Court to enjoin various North Carolina laws in light of the COVID-19 pandemic, including laws designed to promote the integrity of absentee voting. Such laws foster trust in the absentee voting process and deter those who might attempt to cast a ballot in someone else’s name. Simply put, they are layers of protection against absentee ballot fraud. If those layers are removed, as Plaintiffs desire, absentee ballot fraud will become more tempting and easier to accomplish. Research done by amicus curiae Public Interest Legal Foundation (the “Foundation”) demonstrates the acute inaccuracies of North Carolina’s voter registration rolls. The Foundation’s research reveals thousands of active registrants in North Carolina who are potentially registered to vote more than once and who were apparently assigned voting credits in the 2016 and 2018 General Elections.1 While election officials alone are the final judge of voter eligibility and are perfectly capable of replicating the Foundation’s research, the Foundation believes this Court should be aware of potential serious problems with the voter rolls that could be exploited if the Plaintiffs’ requested relief is granted.
1 Pursuant to Local Rule 7.5(d), the Foundation states that (1) no party’s counsel authored the brief in whole or in part, (2) no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief, and (3) no person—other than amicus curiae or its counsel—contributed money that was intended to fund preparing or submitting the brief.
1
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ARGUMENT I. The Foundation’s Research and Submission of Findings to the North
Carolina State Board of Elections. As part of its organizational mission, the Foundation analyzes voter rolls across the Nation. In January 2020, the Foundation received a copy of North Carolina’s statewide voter roll extract via the North Carolina State Board of Election’s website.2 Then, at considerable expense for a 501(c)(3) charitable organization, using detailed methodologies and matching techniques (described infra and in the attached letter), the Foundation flagged registrations that are potentially duplicated within the same North Carolina county (intracounty) and across county lines (intercounty). The Foundation also reviewed voting histories to determine if one or more voting credits were assigned to these potentially problematic entries. A voting credit is a government record indicating whether a registrant voted in an election. On July 1, 2020, the Foundation sent a letter to the North Carolina State Board of Elections that describes the Foundation’s methodology and findings and asks the North Carolina State Board of Elections to investigate and take corrective action where necessary.3 Exhibit A (hereafter, the “Letter”).
2 See North Carolina State Board of Elections, Current Voter Registration & Voter History Data by County, https://www.ncsbe.gov/Public-Records-Data-Info/ElectionResults-Data. 3 Election officials are the final judge of voter eligibility. The Foundation asks election officials to do what is permissible under state and federal law to investigate the leads the Foundation submits.
2
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II. The Foundation Identified Potentially Duplicated Registrations with Apparent Voting Credits Assigned for the 2016 and 2018 General Elections.
The Foundation’s Letter alerted the North Carolina State Board of Elections to registrations that are potentially duplicated within the same North Carolina county (intracounty) and across county lines (intercounty) that were apparently assigned voting credits for the same election. Letter at 1. For the 2016 General Election, more than 1,700 potential intercounty duplicates were apparently assigned voting credits according to government records, and more than 9,700 potential intracounty duplicates were apparently assigned voting credits according to government records. For the 2018 General Election, 7,000 potential intracounty duplicates were apparently assigned voting credits according to government records. Id. To ensure a high degree of confidence, the Foundation flagged only those registrations with identical addresses and identical dates of birth and nearly identical first and last names. Id.
The number of individuals with two or more registrations is assuredly even higher because the Foundation flagged only registrations that were apparently assigned voting credits. The Foundation has not yet accounted for some well-known causes of duplication, such as married-name confusion, which happens when a registrant becomes married and then submits a subsequent registration using a different last name. The Foundation has seen those circumstances result in significantly higher numbers of likely duplicated registrations in other jurisdictions.
3
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It is paramount that the North Carolina State Board of Elections investigate and confirm the registrations the Foundation flagged and further examine North Carolina’s rolls for other duplicate entries prior to the entry of any injunctive relief that would exacerbate these defects.
III. The Foundation Invites the Court to Appoint an Amicus Curiae to Verify the Foundation’s Research.
The Foundation’s research can be replicated. The Foundation hopes that replication can resolve any doubts concerning ambiguities in the data. The Foundation therefore invites the Court to verify its research. The Foundation welcomes efforts to verify and improve upon its work so that the Court is working with the most accurate and up-to-date data when rendering a decision in this matter. For example, the Foundation invites the Court to appoint its own amicus curiae to replicate the study to ascertain the number of duplicate registrations on the public voter rolls in North Carolina, if the Court believes it is warranted. The Foundation is happy to work with any such designee to assist with replicating the Foundation’s analysis and cataloging the numbers of problematic registrations on the rolls that would undermine the integrity of the election if the Plaintiffs’ motion was granted.
CONCLUSION Inaccurate voter rolls create risks for the franchise. For that reason, the research discussed herein merits consideration and further investigation by election officials and this Court alike.
4
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Dated: July 8, 2020 Respectfully Submitted, Kaylan L. Phillips* Public Interest Legal Foundation 32 E. Washington St., Suite 1675 Indianapolis, Indiana 46204 Tel: 317-203-5599 Fax: 888-815-5641 kphillips@publicinterestlegal.org Counsel for Amicus Curiae Public Interest Legal Foundation *Special Appearance Pursuant to Local Civil Rule 83.1(d)
/s/ Joshua Howard Joshua Howard NC Bar No. 26902 Gammon, Howard & Zeszotarski, PLLC 115 ½ West Morgan Street Raleigh, NC 27601 (919) 521-5878 Fax: (919) 882-1898 jhoward@ghz-law.com Local Civil Rule 83.1 Counsel for Amicus Curiae Public Interest Legal Foundation
5
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CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.3(d)(1), the undersigned counsel hereby certifies that the foregoing Memorandum contains 920 words as measured by counsel’s word processing program.
/s/ Joshua Howard Joshua Howard NC Bar No. 26902 Gammon, Howard & Zeszotarski, PLLC 115 ½ West Morgan Street Raleigh, NC 27601 (919) 521-5878 Fax: (919) 882-1898 jhoward@ghz-law.com Local Civil Rule 83.1 Counsel for Amicus Curiae Public Interest Legal Foundation
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CERTIFICATE OF SERVICE I certify that on July 8, 2020, I caused the foregoing to be filed with the United States District Court for the Middle District of North Carolina via the Court’s CM/ECF system, which will serve all registered users.
/s/ Joshua Howard Joshua Howard NC Bar No. 26902 Gammon, Howard & Zeszotarski, PLLC 115 ½ West Morgan Street Raleigh, NC 27601 (919) 521-5878 Fax: (919) 882-1898 jhoward@ghz-law.com Local Civil Rule 83.1 Counsel for Public Interest Legal Foundation
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VIA EMAIL

July 1, 2020

Ms. Karen Brinson Bell Executive Director, North Carolina State Board of Elections 430 N. Salisbury St. Raleigh, North Carolina 27603 Email: karen.bell@ncsbe.gov; Elections.sboe@ncsbe.gov

Re: Voter List Maintenance Leads Request for Meeting

Dear Ms. Bell:

Our organization—the Public Interest Legal Foundation—is a non-partisan, 501(c)(3) publicinterest organization that is dedicated entirely to promoting the integrity of elections nationwide through research, education, remedial programs, and litigation. As part of our mission, we study, audit, and analyze voter rolls throughout the country to assess their health and accuracy. We compare voter roll data against federal and other public or commercial databases to flag registrations that may be incomplete, outdated, or no longer valid. We then submit findings and leads to proper election officials for further investigation and confirmation to better aid voter roll maintenance programs.

We write today to offer you our findings regarding potential duplicate registrations in the State of North Carolina.

Summary of Findings and Methodology

In January 2020, we downloaded a copy of the North Carolina voter registration extract from your offices. We flagged registrations that are potentially duplicated within the same North Carolina county (intracounty) and across county lines (intercounty). To ensure a high degree of confidence, the Foundation flagged only those registrations with identical addresses and dates of birth and nearly identical first and last names. We then reviewed assigned voting credits for each such registration.

Potential Intercounty and Intracounty Duplicates with Apparent Voting Credits Assigned for 2016 and 2018 General Elections.

For the 2016 General Election, more than 1,700 potential intercounty duplicates were apparently assigned voting credits, and more than 9,700 potential intracounty duplicates were apparently assigned voting credits. For the 2018 General Election, 7,000 potential intracounty duplicates were apparently assigned voting credits.

32 E. Washington Street, Suite 1675, Indianapolis, Indiana 46204 Telephone: 317.203.5599 Fax: 888.815.5641 PublicInterestLegal.org
EXHIBIT A
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We have utilized multiple means to verify these potentially duplicate registrations but ultimately only your office can conclusively determine whether these registrations are indeed duplications with genuine document trails reflecting the voting credits shown in the voter extract. Request for Meeting We would like to offer our findings to you for further investigation and confirmation. We are available via telephone or videoconference, if needed, to discuss our research and how we can best transfer the data to you. Please let us know which date(s) and time(s) you prefer. Should you need to contact us regarding this matter, please contact me at lchurchwell@publicinterestlegal.org. Thank you for your service on this matter. Sincerely,
Logan Churchwell Communications & Research Director Public Interest Legal Foundation lchurchwell@publicinterestlegal.org
2
EXHIBIT A
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA,

)

THE LEAGUE OF WOMEN VOTERS )

OF NORTH CAROLINA,

)

DONNA PERMAR, JOHN P. CLARK, )

MARGARET B. CATES,

)

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,

)

KEN RAYMOND, 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, DAVID C. BLACK, )

in his 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, THE NORTH

)

CAROLINA DEPARTMENT OF

)

1:20CV457

Case 1:20-cv-00457-WO-JLW Document 86 Filed 07/08/20 Page 1 of 5

TRANSPORTATION, J. ERIC

)

BOYETTE, in his official

)

capacity as TRANSPORTATION )

SECRETARY, THE NORTH

)

CAROLINA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, )

and MANDY COHEN, in her

)

official capacity as

)

SECRETARY OF HEALTH AND

)

HUMAN SERVICES,

)

)

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. )

ORDER Pending before this court are three motions. Plaintiffs’ Amended Motion for Preliminary Injunction, (Doc. 31), was filed June 18, 2020, and ripe for ruling as of July 3, 2020, when Plaintiffs filed their Reply, (Doc. 74). The parties have requested an expedited hearing and ruling on that motion. (See Doc. 9 at 7, Doc. 79 at 2.) Prior to completion of the briefing,

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this court scheduled a hearing on the motion for preliminary injunction for July 9, 2020. (See Docket Entry 07/01/2020.)
Defendant-Intervenors Philip E. Berger and Timothy K. Moore (“Legislative Defendants”) have filed two related motions. The first motion requests leave to take depositions prior to a hearing on Plaintiffs’ motion for preliminary injunction. (Doc. 49.) In the second motion, Legislative Defendants have moved to strike affidavits filed with Plaintiffs’ reply brief or, alternatively, to be granted leave to depose the declarants or for leave to file a surreply. (Doc. 77.) Those motions are presently pending. This court tentatively believed the first motion, (Doc. 49), was likely moot following a conference during which the motion for preliminary injunction was set for oral argument only, however, in light of subsequent events, the court finds that motion is not moot.
The court finds a resolution of those two motions filed by Legislative Defendants is necessary prior to a hearing on the motion for preliminary injunction, whether that hearing is an evidentiary hearing or only oral argument. An oral argument will not aid the court if there is uncertainty as to whether discovery should be permitted before a ruling or uncertainty as to which facts can and should be considered by the court. The court therefore finds the presently scheduled argument on the
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motion for preliminary injunction should be continued and rescheduled to a date to be determined.
On July 9, 2020, the court will hear oral argument on Legislative Defendants’ Motion for Leave to Take Depositions in Advance of the Preliminary Injunction Hearing and for Expedited Resolution of this Motion under L.R. 37.1(b), (Doc. 49). (Text Order 07/08/2020.) Plaintiffs have responded in opposition to this motion, (Doc. 61), and no further pleadings will be permitted. The court will also hear oral argument on Legislative Defendants’ Motion to Strike Plaintiffs’ July 2nd Declarations, (Doc. 77), during the July 9 hearing. Plaintiffs and Executive Defendants have responded to that motion, (Docs. 79, 80), and no further pleadings will be permitted. Local Rule 7.2 requires that briefs contain “[t]he argument, which shall refer to all statutes, rules and authorities relied upon.” LR 7.2(a)(4). This court assumes the parties have complied with that rule and no further authorities will be accepted at the hearing unless provided to opposing counsel by 7:00 p.m. on today’s date.
This court is hopeful it will be able to present a ruling on these two motions at the conclusion of the hearing, or at least provide the parties with guidance as to how the court chooses to proceed with respect to the pending motion for a preliminary injunction. In addition to the issues outlined
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above, the parties should also be prepared to address the following issues:
1. A new date for the preliminary injunction hearing; and 2. Remedies as may be applicable and available. To assist the parties in planning, the court advises the parties that it has a number of dates available for a hearing over the next two weeks and anticipates any delay from this continuance should be relatively short. IT IS SO ORDERED. This the 8th day of July, 2020.
__________________________________ United States District Judge
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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Civil Action No. 1:20-cv-457

DEMOCRACY NORTH CAROLINA, et )

al.,

)

)

Plaintiffs,

)

v.

)

)

THE NORTH CAROLINA STATE

)

BOARD OF ELECTIONS; et al.,

)

)

Defendants,

)

)

and

)

)

PHILIP E. BERGER, etc., et al.,

)

Intervenors.

)

STATE DEFENDANTS’ MOTION TO DISMISS

NOW COME defendants—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; Ken Raymond, Jeff Carmon III, and David C. Black, in their official capacities as Members of the State Board of Elections; Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections; the North Carolina Department of Transportation; J. Eric Boyette, in his official capacity as Transportation Secretary; the North Carolina Department of Health and Human Services; Mandy Cohen, in her official capacity as Secretary of Health and Human Services (collectively “the State defendants”)—and Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure respectfully move that this Court dismiss plaintiffs’

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Second Amended Complaint [D.E. 30] The motion should be granted for the reasons stated in the accompanying brief in support.
This the 30th day of July, 2020. JOSHUA H. STEIN Attorney General /s/ Alexander McC. Peters Alexander McC. Peters N.C. State Bar No. 13654 Chief Deputy Attorney General Email: apeters@ncdoj.gov Kathryne E. Hathcock N.C. State Bar No. 33041 Assistant Attorney General Email: khathcock@ncdoj.gov Neal T. McHenry N.C. State Bar No. 40995 Assistant Attorney General Email: nmchenry@ncdoj.gov N.C. Dept. of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919) 716-6900 Facsimile: (919) 716-6763
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Civil Action No. 1:20-cv-457

DEMOCRACY NORTH CAROLINA, et al.,
Plaintiffs, v.
THE NORTH CAROLINA STATE BOARD OF ELECTIONS; et al.,
Defendants,
and
PHILIP E. BERGER, etc., et al., Intervenors.

)

)

)

)

) MEMORANDUM IN SUPPORT OF

)

STATE DEFENDANTS’

)

MOTION TO DISMISS

)

)

)

)

)

)

)

)

NOW COME defendants—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; Ken Raymond, Jeff Carmon III, and David C. Black, in their official capacities as Members of the State Board of Elections; Karen Brinson Bell, in her official capacity as Executive Director of the State Board of Elections; the North Carolina Department of Transportation; J. Eric Boyette, in his official capacity as Transportation Secretary; the North Carolina Department of Health and Human Services; Mandy Cohen, in her official capacity as Secretary of Health and Human Services (collectively “the State defendants”)—and hereby submit this Memorandum in Support of their Motion to Dismiss.

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INTRODUCTION Plaintiffs ask the Court to enjoin enforcement of certain of North Carolina’s election laws and to impose other requirement for the 2020 general elections, arguing that absent Court action, the people of North Carolina may not be able to vote safely. The State defendants acknowledge that the COVID-19 pandemic has affected elections administration and will continue to do so in the months to come, and that certain changes must be made to both protect against threats to public health and ensure that every eligible North Carolinian can vote. The State defendants have begun to make changes to address the challenges of voting during the COVID-19 pandemic—including many changes that address specific harms alleged by plaintiffs in this case. Plaintiffs object to these changes as insufficient. But for purposes of evaluating plaintiffs’ legal challenges, the relevant question is whether plaintiffs’ allegations rise to the level of being constitutional infirmities in the current election framework. As explained below, they do not. As a result, plaintiffs’ Second Amended Complaint should be dismissed for failure to state a claim upon which relief can be granted.
NATURE OF THE CASE Plaintiffs challenge a number of North Carolina elections statutes on the grounds that they violate Plaintiffs’ First Amendment rights, unconstitutionally burden their right to vote, violate their due-process rights, and impose an unconstitutional condition on a constitutional right by forcing them to choose between their bodily integrity and their right to vote.
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QUESTION PRESENTED Whether Plaintiffs have properly stated a claim of violations of their constitutional rights.
FACTUAL BACKGROUND In North Carolina, we have only just scratched the surface on the impact that the COVID-19 pandemic has had and will continue to have on our lives. In our State alone, at least 117,850 people have had laboratory-confirmed cases of COVID-19 and at least 1,865 have died from the virus.1 The COVID-19 pandemic is the greatest threat to global health in the last century.2 It has affected the way we work, the way we interact with each other, and it has affected the way we vote. Recognizing this, on 15 March 2020, Executive Director Bell issued Numbered Memo 2020-11 to the 100 county boards of elections to update them on the State Board’s responses to the COVID-19 outbreak, provide recommendations that the county boards conduct meetings electronically, and adjust certain deadlines following the 3 March primary.3 (DE 58-1, ¶ 6.) On 26 March 2020, Bell issued a letter of recommendation to the North Carolina General Assembly and the Governor to address the issues raised by COVID-19.4 The recommendations included allowing absentee requests to be submitted by fax or email,
1 https://covid19.ncdhhs.gov/dashboard/cases, accessed 30 July 2020. 2 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7175860/, accessed 30 July 2020. 3 https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%202020-11_Coronavirus%20Response.pdf 4 https://s3.amazonaws.com/dl.ncsbe.gov/sboe/SBE%20Legislative%20Recommendations_COVID-19.pdf.
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establishment of an online portal for absentee requests, permitting postage to be pre-paid for absentee ballots, and reducing or eliminating the witness requirement for elections conducted in 2020. Id. Bell also recommended temporarily modifying the prohibition on employees of hospitals, nursing homes, and other congregate living facilities to allow these individuals to assist voters and serve as witnesses in light of current visitor restrictions. Id. Additionally, Bell recommended that county boards of elections be allowed flexibility to determine their sites and hours for early voting to allow a tailored response to COVID-19 pandemic in each county. Id.
On 20 March, Bell issued an order rescheduling the Republican second primary in Congressional District 11 from 12 May to 23 June.5 (DE 50-1, ¶ 8.) This order also modified some reporting deadlines and suspended certain logging requirements to allow county board offices to work while being physically closed. Id. Finally, the order allowed transfer of certain voters to non-adjacent precincts if the transfer was related to the COVID-19 pandemic. Id.
On 1 June, Bell issued Numbered Memo 2020-12, in which she provided guidance for counties administering the 23 June primary.6 Id., ¶ 10. In particular, Bell established policies to provide a safe experience for voters and elections officials during the COVID19 pandemic, including requiring poll workers and other staff to wear personal protective
5 https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/Orders/Executive%20Director%20Orders/Order_2020-03-20%20.pdf 6 https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%202020-12_InPerson%20COVID%20Response%20June%2023%20Election.pdf.
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equipment, including masks, face protection, and gloves and, when appropriate, to selfscreen for symptoms before reporting to work. Id. Voters were provided with masks if they needed one, hand sanitizer, and single-use ballot-marking devices. Id. Bell also ordered routine cleanings and social-distancing measures, consistent with CDC guidelines. Id.
On 10 June, Bell directed county board staff to avoid precinct mergers wherever possible for the general election. Id., ¶ 12. She also strongly encouraged staff to maintain all 17 days of early voting in polling sites leading up to the general election to spread out voters over many sites for a longer period of time, thereby reducing voter density and the risk of COVID-19 spread. Id.
At the same time, the North Carolina General Assembly enacted House Bill 1169, which the Governor signed into law as North Carolina Session Law 2020-17 the following day. This law made a number of changes in response to the COVID-19 pandemic. For example, it reduced the requirement of having two witnesses for absentee ballots to one witness. 2020 N.C. SESS. LAWS 17, § 1.(a). In addition, county boards of elections now have greater flexibility to allow non-resident precinct officials to serve, which will help ensure that each polling places remains open even if some current precinct officials are unable or decline to serve. 2020 N.C. SESS. LAWS 17, § 1.(b). Session Law 2020-17 also made provisions for multipartisan assistance teams to assist any voter in the state, including those in nursing homes, to fill out their ballots and requests. 2020 N.C. SESS. LAWS 17, §§ 1.(c), 2.(b). Additionally, Session Law 2020-17 also provided for absentee ballot request forms to be made online through an electronic portal that will be made
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available on September 1. 2020 N.C. SESS. LAWS 17, § 7.(a). Finally, Session Law 202017 provided matching funds for the federal CARES Act (P.L. 116-136), allowing county boards to take advantage of federal funding to assist them in preparing for the elections in light of the COVID-19 pandemic.
Simultaneously, on 19 June, the State Board announced that it was engaging in an aggressive campaign to recruit people to serve as election officials at early voting sites and on Election Day.7 This effort is part of a broader plan to recruit additional poll workers to serve in 2020.
And finally, on 17 July, Bell issued an emergency order, requiring county boards of elections to have a minimum of 10 hours of voting each of the first two weekends of early voting, to have at least one polling site open during the early-voting period for every 20,000 registered voters, and to require frequent sanitization and use of PPE in accordance with CDC guidelines.8 This order was intended to ensure that there were sufficient sites and sufficient quality hours for voters to be able to exercise their right to vote safely.
LEGAL STANDARDS To survive dismissal under Rule 12(b)(6), a complaint must contain facts sufficient “to raise a right to relief above the speculative level” and to satisfy the court that the claim is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A claim is plausible only “when the plaintiff pleads factual content that allows the court to
7 https://www.ncsbe.gov/Press-Releases?udt_2226_param_detail=2211. 8 https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%202020-14_Emergency%20Order%20of%20July%2017%2C%202020.pdf. This emergency order can also be found at DE 101-1.
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draw the reasonable inference that the defendant is liable for the misconduct alleged”—a standard that requires more than facts “that are ‘merely consistent with’ a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
ARGUMENT I. Plaintiffs Fail to State a Claim Under Rule 12(b)(6)
Plaintiffs fail to state a claim because North Carolina’s important regulatory interests in maintaining voting integrity and consistency outweigh any asserted injury by plaintiffs under the Anderson-Burdick framework. Limits placed on assistance with absentee ballot request forms do not violate plaintiffs’ rights under the First Amendment to free speech and association in light of those important regulatory interests. (DE 30 at ¶¶ 96, 128). Additionally, plaintiffs’ constitutional right to “bodily integrity” is not jeopardized by the modest registration and election requirements imposed by North Carolina. Even if plaintiffs’ alleged substantive due process right to physical safety while voting were attributable to an affirmative act by the State, the substantive due process argument would still fail because the right that plaintiffs assert falls far outside the ambit of any right the Supreme Court has ever recognized. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (Supreme Court precedent requires a “careful description of the asserted fundamental liberty interest”). Plaintiffs have not cited any case that has recognized such a right that is “deeply rooted in this Nation’s history and tradition.” Id.
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(quotation marks omitted). Because Rule 12(b)(6) requires that a Complaint contain “more than labels and conclusions” and more than a “formulaic recitation of the elements of a cause of action,” plaintiffs’ factual allegations in the instant case do not “raise a right to relief above the speculative level” to one that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (internal quotation marks omitted). The State defendants’ Motion to Dismiss should be granted.
II. The Anderson-Burdick Framework and its Application to Plaintiffs’ Claims
State election regulations often “implicate substantial voting, associational and expressive rights protected by the First and Fourteenth Amendments.” Pisano v. Strach, 743 F.3d 927, 932 (4th Cir. 2014) (citation omitted). “All election laws, including perfectly valid ones, ‘inevitably affect[]—at least to some degree—the individual’s right to vote and his right to associate with others for political ends.’” Sarvis v. Alcorn, 826 F.3d 708, 716 (4th Cir. 2016) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). Under the well-established Anderson-Burdick framework, a court assessing a voteburdening claim must “consider the character and magnitude of the asserted injury” to the right to vote. Lee v. Va. State Bd. of Elections, 843 F.3d 592, 605 (4th Cir. 2016) (quotation marks omitted). The severity of the burden imposed “dictates the level of justification” required: “Severe” burdens trigger strict scrutiny, but if the burden is only “modest,” then a state’s “important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Pisano, 743 F.3d 927 at 933. See also McLaughlin v. North Carolina Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995) (courts
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simply ensure that “order, rather than chaos, . . . accompany the democratic process” where burden to a plaintiff’s right is modest). Even taking all of Plaintiffs’ allegations as true, all of their claims fail the Anderson-Burdick test.
A. 25-Day Voter Registration Deadline Plaintiffs claim in their Second Amended Complaint [DE 30] that the COVID-19 pandemic renders North Carolina’s voter-registration deadline and the unavailability of online voter registration through the Department of Health and Human Services (“DHHS”) an unconstitutional burden on the right to vote. They request as relief that this Court enjoin enforcement of N.C. GEN. STAT. §§ 163-82.6(d) and 163-82.20(g),(h) imposing 25-day voter registration deadlines, and that the Court force DHHS to offer online voter registration. The State provides ample registration opportunities, and because voters “have ample time and opportunity” to register, the 25-day requirement’s burden on voters is, at most, “modest.” Pisano, 743 F.3d at 936. Additionally, plaintiffs have identified no legal theory that requires DHHS to offer online voter registration. North Carolina’s compelling “interest in ensuring orderly, fair, and efficient procedures for the election of public officials,” in avoiding voter confusion, in securing sensitive voter information, and in address verification of voters justifies the 25-day deadline. Id. at 937 (quotation marks omitted). “This interest necessarily requires the imposition of some cutoff period to verify the validity of” the applications. Id. (quotation marks omitted).
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Plaintiffs additionally claim that the State defendants are burdening their right to organize or vote by 1) requiring the North Carolina Department of Transportation, Division of Motor Vehicles (“DMV”) and DHHS to comply with the 25-day registration deadline; and by 2) not allowing remote voter registration at the same time the State Board allows in-person registration at a one-stop site. (DE 30 at ¶¶ 92, 95). As set forth above, the 25-day deadline is justified by compelling state interests. With regard to in-person registration after the expiration of the 25-day deadline, the Fourth Circuit has considered similar deadlines to be, at most, a modest burden because voters will have had ample time and opportunity before the election to register. See, e.g., Pisano, 743 F.3d at 936 (holding that filing deadlines for new political parties to nominate candidates impose only a modest burden because candidates will have had ample time and opportunity to collect the required number of signatures). Plaintiffs acknowledge that online voter registration is already available through the DMV and fail to set forth how DHHS unduly burdens the right to vote by offering paper but not online voter registration. (DE 30, at ¶ 95).
Because the burden of the voter-registration deadline is, at most, modest and there are numerous opportunities and methods to register to vote, plaintiffs have failed to state a claim upon which relief can be granted in that they have not pled that that the government’s interests in maintaining these deadlines or current registration structure is unjustified. Indeed, the voter registration deadline and current voter registration framework do not present an undue burden on the right to vote.
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B. Absentee Ballot Request Forms In their Complaint, plaintiffs also challenge the requirement that voters submit a completed version of the State’s absentee ballot request form, and argue that the requirement will unconstitutionally burden the right to vote for those who do not have the means to print it or provide postage. (DE 30 at ¶¶ 57, 75). Importantly, however, the State Board does not require that voters print out the form themselves. Any individual may copy and distribute the official form, as long as it is blank. Therefore, the same organizational plaintiffs who wish to assist with voting can make these request forms available for voters who may not be able to print out the form themselves. In addition, for elections in 2020, voters may request by phone that an absentee ballot request form be sent to them. 2020 N.C. SESS. LAWS 17, § 5(a). Therefore, the burden on voters to access a printer and print the form for themselves has been minimized, if not eliminated altogether. The requirement to complete the State’s request form imposes no more than a modest burden when weighed against the State’s legitimate interests in elections administration. In light of these minimal burdens, the government’s interests in reducing voter confusion by ensuring that all absentee ballot requests comply with North Carolina law and can be processed in a timely fashion are entirely justified. See League of Women Voters v. LaRose, No. 2:20-cv-1638, 2020 U.S. Dist. LEXIS 91631 at *23 (S.D. Ohio, April 3, 2020) (recognizing as adequate justification the need to properly verify a voter’s identity and a voter’s signature and sufficient to not allow people to request absentee ballots by phone or online). Requiring voters to complete an absentee ballot request is a
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rational means of promoting the State’s interest in deterring, detecting, and punishing voter fraud. Accordingly, plaintiffs have failed to state a claim upon which relief may be granted.
C. Limits on Assistance with Absentee Ballots Plaintiffs also assert in their Complaint that the statutory limits placed on assistance with absentee ballots unduly burden voters by preventing them from receiving assistance to navigate the absentee ballot process. (DE 30 at ¶¶ 62-66, 96, 161, 168, 176). The restrictions on assistance with absentee ballots are a modest burden when weighed against the State’s interests in preventing voter fraud. The State’s restrictions on assistance with absentee ballots limit the number of people who are permitted to assist with or mark absentee ballots and ballot requests to: (a) the voter, (b) a close relative or legal guardian, or (for 2020) (c) a member of a multipartisan assistance team (“MAT”) trained and authorized by the county board of elections. N.C. GEN. STAT. §§ 163-226.3, -227.2, -230.2; 2020 N.C. SESS. LAWS 17 (“Ballot Harvesting Ban”). And for voters who need assistance due to blindness, disability, or inability to read or write and there is not a close relative or legal guardian available to assist, they may request any other person to provide assistance in requesting ballots. N.C. GEN. STAT. § 163-230.2(e1). Plaintiffs claim that these restrictions prevent voters from receiving needed assistance. Plaintiffs fail to state a claim because the restrictions on assistance do not categorically bar assistance—they merely limit the people who may assist a voter. Moreover, these restrictions have been loosened in light of the COVID-19 pandemic. For
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2020, a MAT member may assist any voter with requesting an absentee ballot, returning the request, marking the absentee ballot, and serving as a witness. 2020 N.C. SESS. LAWS 17. Additionally, with the passage of Session Law 2020-17, the State now allows absentee ballot requests online and by email and fax for all further 2020 elections. 2020 N.C. SESS. LAWS 17, §2(a). While plaintiffs claim that the restrictions may render voters virtually helpless, they have not provided evidence—with one exception—to suggest that a large proportion of voters who need assistance will not be able to receive that assistance from a close relative or legal guardian or a MAT member in 2020.
Plaintiffs claim that the availability of MATs is inadequate in certain counties and that, as a result, voters may be left without assistance. (DE 30 at ¶ 62). This concern, however, is speculative because county boards of elections and the State Board have anticipated the increased need for MATs this fall and are already taking steps to expand the recruitment and promotion of MATs by devoting significant additional funding provided under the CARES Act and HAVA for these efforts. 2020 N.C. SESS. LAWS 17.
In light of the measures that the State has already taken to mitigate the burden placed on absentee voters needing assistance, the restrictions are reasonable and serve the important state interests of 1) increasing confidence in elections; and 2) reducing the risk of fraud by prohibiting anyone who is not the voter, a near relative, a legal guardian, the United States Postal Service (“USPS”), or elections officials and members of a MAT trained and authorized by the county board of elections from engaging with absentee ballot requests. 2020 N.C. SESS. LAWS 17. When weighed against the State’s interests, limiting
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the number of people who can assist with requesting and marking absentee ballots is reasonable and does not unduly burden voters in exercising their right to vote.
Plaintiffs also argue that the limits placed on assistance with absentee ballot request forms violate their rights under the First Amendment to free speech and association. (DE 30 at ¶¶ 96, 128). However, as set forth above, the State’s legitimate interests in maintaining public confidence in elections and protecting against fraud are compelling and important interests that warrant the restrictions on who can assist with filling out absentee ballot request forms.
In their Complaint, plaintiffs also suggest a number of other laws that the North Carolina General Assembly could have passed in the alternative to address the issue of absentee voter fraud. These policy differences, however, do not create First Amendment violations. North Carolina’s restrictions on assistance with absentee voting mirror independent, bipartisan recommendations, are designed to reduce the incidence of absentee voter fraud, and are viewpoint and content-neutral.
Finally, plaintiffs argue that the assistance restrictions also violate Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act because the restrictions deny some of plaintiffs their right to vote. (DE 30 at ¶¶ 145, 152, 164, 170). As discussed above, the restrictions do not deny voters assistance altogether. They merely limit the number of people who are permitted to come into contact with absentee ballots and ballot requests to reduce the chance of voter fraud. Because plaintiffs have failed to show that the ADA/RA plaintiffs are unable to request the assistance of a close relative, legal guardian, or member of a MAT, they have not shown that they have been or will be
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denied the franchise, and have therefore failed to state a claim upon which relief can be granted.
D. Witness Certification Requirement Plaintiffs further ask this Court for relief from the enforcement of North Carolina law requiring absentee voters to mark their ballots in the presence of one witness on the ground that it is an undue burden on the right to vote. (DE 30, Prayer for Relief at (c)). But they fail to state a claim that that this requirement presents a burden sufficient to outweigh the State’s legitimate interests or satisfy the Anderson-Burdick test. Plaintiffs note that there are more than 1.1 million single-member households in North Carolina. (DE 30 at ¶ 59). There is no evidence in the record, however, of what proportion of these single-member households would be unable to comply with the witness requirement. For example, the statistics provided by plaintiffs do not indicate whether these individuals intend to vote, whether they regularly interact with individuals outside their households, whether these individuals could obtain the required signature without violating the Center for Disease Control’s social-distancing guidelines by wearing masks and gloves, remaining more than six feet apart, and being physically separated from one another by a window or open doorway. When weighed against their failure to plead that the burden placed by a singlewitness requirement is severe, plaintiffs cannot overcome the State’s interest in instituting this requirement. Many states’ witness requirements for absentee ballots are justified to minimize voter fraud. See, e.g., Thomas v. Andino, No. 3:20-cv-01552, 2020 U.S. Dist. LEXIS 90812, at *52 (D.S.C. May 25, 2020); League of Women Voters of Va. v. Va. State
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Bd. of Elections, No. 6:20-cv-00024, 2020 U.S. Dist. LEXIS 79439, at *43 (W.D. Va. May 5, 2020); see also Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) (holding that even though there was no evidence of voter-impersonation fraud in Virginia and that the voter ID law would not prevent any voter-impersonation fraud, the voter ID law could still survive because the state’s interest in protecting against voterimpersonation fraud was a sufficiently valid interest).
Plaintiffs also argue that the witness requirement presents an unconstitutional condition on the right to vote because it “will force voters to choose between exposing themselves to severe risks to their health and exercising their constitutionally protected right to vote.” (DE 30 at ¶ 50). But because the “unconstitutional conditions” doctrine applies only if the government jeopardizes a constitutionally protected right, it does not apply here. Reedy v. Werholtz, 660 F.3d 1270, 1277 (10th Cir. 2011).
“The unconstitutional conditions doctrine forbids the government from denying or terminating a benefit because the beneficiary has engaged in constitutionally protected activity.” Petrella v. Brownback, 787 F.3d 1242, 1265 (10th Cir. 2015). It “vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” Koontz v. St. John’s River Water Mgmt. Dist., 570 U.S. 595, 604 (2013).
In this case, plaintiffs argue that the right to self-quarantine is an exercise of the constitutional right to “bodily integrity,” which is embodied in the right to be free of unauthorized and unlawful physical abuse by state intrusion. While the right to bodily integrity is undoubtedly constitutionally protected, the right to self-quarantine does not
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fall within its ambit. Violations do not arise from “bad policy or inaction,” but rather only applies to “the most egregious official conduct.” J.S. ex rel. Simpson v. Thorsen, 766 F. Supp. 2d 695, 705 (E.D. Va. 2011) (quoting Waybright v. Frederick Cty. Md. Dept. of Fire & Rescue Svcs., 528 F.3d 199, 204 (4th Cir. 2008)). As the Fourth Circuit has held, “nothing less” than intrusions that “shock the conscience” rise to violations of personal bodily integrity. Waybright, 528 F.3d at 205.
Enforcing the witness requirement does not violate a person’s bodily integrity. The requirement that voters who choose to vote by absentee ballot rather than to utilize inperson voting, either on Election Day or during early voting, do so in the presence of one witness is not a government intrusion that shocks the conscience. As explained above, plaintiffs have failed to prove that this requirement places a substantial burden on voters. Where there is no substantial burden to voters, the witness requirement does not violate a person’s bodily integrity. The witness requirement does not require that voters choose between two constitutional rights. Accordingly, the unconstitutional conditions doctrine is inapplicable here and the witness requirement is a rational means of promoting the State’s interest in deterring, detecting, and punishing voter fraud.
E. Uniform Hours in Precincts Plaintiffs also ask this Court for relief from the requirements that all one-stop voting sites in a county be open during uniform hours and all sites other than the county board office be open from 8:00 A.M. to 7:30 P.M. (DE 30 at ¶ 83, Prayer for Relief at (h)). The requirement for all sites in a county to have uniform hours was first enacted in 2018 and has been in effect for all elections from that time. Plaintiffs have not stated a claim
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that the COVID-19 pandemic renders the uniform hours requirement an undue burden requiring relief.
The State defendants acknowledge that the uniform hours requirement may reduce the flexibility of county boards of elections to respond to exigencies that may occur in light of the COVID-19 pandemic. But plaintiffs have not provided information sufficient to understand the nature of the burdens to voters resulting from the confluence of the COVID-19 pandemic and uniform one-stop hours. To the extent that the uniform hours requirement burdens the right to vote at all, that burden is modest. Moreover, the State’s interests in avoiding voter confusion by promoting uniformity and promoting administrative convenience by making it easier for counties to publicize early voting hours, as well as its interest in avoiding even an appearance of partisanship in the setting of early voting hours, support this reasonable election regulation. Because plaintiffs bear the burden of showing that voters are unduly burdened sufficient to deny them their First and Fourteenth Amendment rights, their failure to do so requires that this Court grant State defendants’ Motion to Dismiss for failure to state a claim.
F. Residential Requirements for Pollworkers Plaintiffs next ask this Court for relief from the requirement that at least one precinct assistant be a registered voter of the precinct. (DE 30, Prayer for Relief at (b), (h)). Plaintiffs fail to show why the new requirement—that only one precinct assistant live in the precinct—places an undue burden on voters. In light of plaintiffs’ failure to state a claim for relief, the State defendant’s motion to dismiss should be granted.
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The requirement that one precinct assistant be a registered voter of the precinct is a significant reduction, enacted by Session Law 2020-17, from the previous requirement that all precinct assistants be registered voters of the precinct. See 2020 N.C. SESS. LAWS 17, § 1.(b). While plaintiffs speculate that even this minimal requirement will result in the closure of polling locations in the general election, they offer nothing more than speculation to that effect. Plaintiffs’ allegations do not raise their claim “above the speculative level” to a claim that is “plausible on its face.” Twombly, 550 U.S. at 555, 570 (internal quotation marks omitted). This claim should, therefore, be dismissed.
G. Establishment of Contactless Drop Boxes for Absentee Ballots Plaintiffs additionally allege that North Carolina has violated the Constitution by not providing drop boxes for voters to deliver absentee ballots. (DE 30 at ¶¶ 75, 103, Prayer for Relief at (k).) They make this allegation even though “there is no constitutional right to an absentee ballot,” Mays v. LaRose, 951 F.3d 755, 792 (6th Cir. 2020). Plaintiffs have failed to show that the lack of contactless drop boxes presents an undue burden to voters. The only factual assertion plaintiffs make in support of this claim is that individual voters will have to rely on the USPS to submit their ballots. (DE 30 at ¶¶ 73, 75, 149.) They have provided no evidence that the USPS is incapable of delivering absentee ballots to North Carolina county boards of elections in the days and weeks leading up to the general election. Nor have plaintiffs pointed to any cases that suggest that, as a legal matter, failure to provide contactless drop boxes is a per se violation of an absentee voter’s constitutional rights. Instead, plaintiffs rely only on speculation that the
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USPS will not be able to accommodate the volume of absentee ballots expected. This speculation does not give rise to a constitutional burden.
Plaintiffs’ request that this Court intervene to short-circuit the State Board expertise and authority to exercise discretion to address the COVID-19 pandemic overlooks these legitimate state interests. Moreover, asking this Court to intervene in policy matters committed to the State Board steps on the authority and flexibility of the State’s elections administration officials to respond to crises as they occur. The establishment of drop boxes is a policy consideration that falls squarely within the authority of the State’s elections administration officials and this Court should not restrict the Executive Director’s ability to make these decisions using her expertise in elections administration— particularly in light of the fact that plaintiffs have failed to state a claim that the lack of drop boxes significantly burdens the franchise.
H. Establishment of Mechanism to Cure Absentee Ballot Requests and Absentee Ballots
Plaintiffs additionally argue that the State unduly burdens the right to vote by not guaranteeing an opportunity for North Carolina voters to cure deficient absentee ballot requests or ballots. (DE 30 at ¶¶ 76, 103.) Like their drop boxes claim, plaintiffs have failed to show a sufficient burden on their right to vote when weighed against significant discretionary interests of the State Board to manage county boards and establish protocols.
Plaintiffs assert that in the March 2020 primary, nearly 15% of submitted absentee ballots were rejected. (DE 30 at ¶ 76.) From this statistic, plaintiffs summarily conclude that the lack of a standardized curative process is the reason these ballots were rejected.
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But they provide no evidence to suggest that this is true, and they do not identify an instance where election officials rejected an absentee ballot based on some mistake that could have been cured. Plaintiffs have failed to show that the lack of a standardized curative process places an undue burden on voters’ rights.
But even if plaintiffs had adequately alleged that the lack of a standardized curative process burdens the right to vote, the State’s interests in maintaining flexibility to adjust to crises in real-time present sufficient justification. Like issuing contactless drop boxes, creating a standardized procedure to cure absentee ballots is under the administrative purview of the State Board. Plaintiffs’ request that this Court intervene to interrupt the State Board’s deliberations and limit the flexibility with which the State Board might respond to changing circumstances on the ground impinges on important State interests in elections administration. Because the absence in State law of a mandatory curative process for absentee ballots is a “reasonable and nondiscriminatory rule[],”and because the State has articulated its asserted interest with “[r]easoned, credible argument,” Sarvis v. Alcorn, 826 F.3d at 719, its practice is constitutional. Plaintiffs have failed to state a claim upon which relief can be granted.
I. Require Voters to Be Able to Use Federal Write-In Absentee Ballots in Lieu of Absentee Ballots
Plaintiffs also claim that there is no fail-safe option for those voters who request but do not receive an absentee ballot, and they ask this Court to require that voters be able to use federal write-in absentee ballots (“FWABs”) as “an alternative of last resort.” (DE 30 at ¶¶ 101, 149, Prayer for Relief at (b) .) Plaintiffs speculate that voters may not receive
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their absentee ballots, but offer no support for their allegation. Accordingly, they have failed to state a claim upon which relief may be granted.
Permitting civilian voters to vote by FWAB poses a number of significant administrative concerns, and requiring FWABs to be available for civilian voters would upend the important governmental interests in ensuring the accuracy of vote counts and fidelity to every voter’s selections. It is simply an unworkable solution, especially given the speculative nature of plaintiffs’ allegations. Plaintiffs have failed to state a claim for which relief can be granted with regard to use of FWABs.
J. Monitoring Precinct Consolidation Plaintiffs also claim that North Carolina’s residency requirements for poll workers will “exacerbate a shortage of poll workers, force precinct consolidation and relocation, and create long lines and crowds on Election Day that contravene social distancing directives needed to protect Plaintiffs’ health” in violation of their constitutional right to vote, and ask this Court to put mandatory procedures in place for monitoring of precinct consolidation. (DE 30 at ¶ 106.) But plaintiffs have failed to show that the procedures currently in place are insufficient to educate voters on polling-place relocation. The State defendants do not dispute that voters should be informed about pollingplace relocation in a timely fashion. Where precincts need to be consolidated or polling places need to be relocated for the general election, county boards of elections will mail notice to all affected voters at least 30 days before the election, among other notifications. N.C. GEN. STAT. § 163-128(a). Plaintiffs have not sufficiently pled why these established methods of voter education cause such a burden as to render them constitutionally
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insufficient. They have not presented evidence to suggest that voters have, in the past, not been properly informed of any changes to precincts and polling places or that changes to precincts and polling places have caused voters to not be able to vote. Accordingly, plaintiffs have failed to state a claim upon which relief can be granted, as the State defendants are already informing voters in a timely fashion of changes to precincts or polling places.
* * * Plaintiffs seek a broad array of relief that is customarily within the discretionary authority of those who are most knowledgeable about elections to administer. Indeed, plaintiffs’ complaint is not that the State defendants are not properly accommodating the impacts of the COVID-19 pandemic. Rather, plaintiffs disagree with the kind of relief that the State defendants are providing and the manner in which they are providing it. Plaintiffs’ estimations on the best policy, however, do not state a claim upon which relief can be granted. Rather, this Court should reject plaintiffs’ invitation to tinker with the levers of elections administration, particularly when the State defendants are attuned and responsive to the need for action.
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CONCLUSION For the reasons above, the State defendants respectfully requests that plaintiffs’ Second Amended Complaint be dismissed with prejudice. This the 30th day of July, 2020.
JOSHUA H. STEIN Attorney General /s/ Alexander McC. Peters Alexander McC. Peters N.C. State Bar No. 13654 Chief Deputy Attorney General Email: apeters@ncdoj.gov Kathryne E. Hathcock N.C. State Bar No. 33041 Assistant Attorney General Email: khathcock@ncdoj.gov Neal T. McHenry N.C. State Bar No. 40995 Assistant Attorney General Email: nmchenry@ncdoj.gov N.C. Dept. of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919) 716-6900 Facsimile: (919) 716-6763
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CERTIFICATE OF WORD COUNT
Pursuant to Local Rule 7.3(d)(1), the undersigned counsel hereby certifies that the foregoing Memorandum, including body, headings, and footnotes, contains 5,972 words as measured by Microsoft Word.

This the 30th day of July, 2020.

/s/ Alexander McC. Peters Alexander McC. Peters Chief Deputy Attorney General

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