Cawthorn v. Circosta

590 F.Supp.3d 873

Madison CAWTHORN, Plaintiff,

v.Damon CIRCOSTA, in his official capacity as Chair of the North Carolina State Board of Elections, Stella Anderson, in her official capacity as a member of the North Carolina State Board of Elections, Jeff Carmon, in his official capacity as a member of the North Carolina State Board of Elections, Stacy Eggersiv, in his official capacity as a member of the North Carolina State Board of Elections, Tommy Tucker, in his official capacity as a member of the North Carolina State Board of Elections, Karen Brinson Bell, in her official capacity as the Executive Director of the North Carolina State Board of Elections, Defendants.

Case No. 5:22-cv-00050-M

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

Signed March 10, 2022

James Bopp, Jr., Melena S. Siebert, The Bopp Law Firm, PC, Terre Haute, IN, Joshua Brian Howard, Gammon, Howard & Zeszotarski, PLLC, Raleigh, NC, for Plaintiff.

Amar Majmundar, Stephanie Ann Brennan, Mary Carla Babb, Terence Steed, NC Department of Justice - Public Safety Section, Raleigh, NC, for Defendants Damon Circosta, Stella Anderson, Jeff Carmon, Stacy Eggers, IV, Tommy Tucker, Karen Brinson Bell.

Benjamin Horton, Free Speech For People, Newton, MA, Pressly M. Millen, Womble Bond Dickinson (US) LLP, Winston-Salem, NC, for Defendants Michael Hawkins, Ellen Beth Richard, Melinda Lowrence, Terry Lee Neal.

ORDER

RICHARD E. MYERS II, CHIEF UNITED STATES DISTRICT JUDGE

This matter came before the court on the Plaintiff's Motion for Preliminary Injunction [DE 8]. Plaintiff sought an order enjoining the enforcement of a North Carolina statute, N.C. Gen. Stat. § 163-127.1 – 163-127.6, which permits any qualified voter, who is registered in the same district as the office of a candidate for "any elective office in the State," to file a "challenge" disputing that the candidate meets the constitutional or statutory qualifications for the office, including a potential violation of Section 3 of the Fourteenth Amendment to the Constitution of the United States. Defendants Circosta, Anderson, Carmon, Eggersiv, Tucker, and Bell ("Defendants" or the "Board") countered that Plaintiff lacked standing to seek an injunction, the issues he raised were not ripe for adjudication, the court should have abstained from hearing the case under Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Plaintiff failed to demonstrate the elements necessary to grant a preliminary injunction. The court heard this matter on March 4, 2022, found it has subject-matter jurisdiction to resolve the narrow issue presented, and granted the motion.

This case is not about what must be decided—that is, whether an insurrection occurred. Instead, it is about who decides what must be decided – and who decides who decides. It is the Plaintiff's position that Congress decides who decides, but Defendants posit that the North Carolina legislature decides who decides. Because Congress has decided by statute, with two-thirds of both houses concurring, to reserve to Congress the right to decide whether one of its members has engaged in insurrection, the requested injunction was appropriately issued on March 4, 2022.

The basis for the court's decision is explained in full below.

I. Background

Although the parties each proffered its own "statement of facts," the relevant material facts of this matter were not disputed.

Plaintiff currently serves as a Member of the U.S. House of Representatives for North Carolina's 11^th Congressional District. On December 7, 2021, Plaintiff filed a notice of candidacy for North Carolina's 13^th Congressional District. On January 10, 2022, a group of voters filed a "challenge" with the State Board of Elections ("Board") pursuant to a North Carolina statute (the "January challengers"), alleging that Plaintiff "does not meet the federal constitutional requirements for a Member of the U.S. House of Representatives and is therefore ineligible to be a candidate for such office." Challenge at ¶ 1, DE 9-2. The next day, January 11, 2022, the Wake County Superior Court in North Carolina issued an indefinite stay on all challenges filed with the Board until a "final resolution" is reached regarding the ongoing litigation challenging North Carolina's recently redrawn legislative and congressional districts ("redistricting litigation"). See Stay Order, DE 9-3.

Pursuant to Article 11B of Chapter 163 of the North Carolina General Statutes, a challenge may be brought against any person who files a notice of candidacy under the appropriate statute for any elective office in this State. See N.C. Gen. Stat. §§ 163-127.1, -127.2. The challenge must be made by a qualified voter registered in the same district as the office for which the candidate has filed. Id. The challenge must be filed with the same board of elections that received the notice of candidacy from the candidate no later than ten business days after the closing of the filing period. Id. The challenge must be made in a verified affidavit, based on a reasonable suspicion or belief that the candidate does not meet the constitutional or statutory qualifications for the office. Id.

Within two business days of the filing of the challenge the Board must appoint a panel made up of county board members from the counties within the district. N.C. Gen. Stat. § 163-127.3(2). In the case of a multi-county district that covers more than five counties, the panel shall have five members with at least one member from the county receiving the notice of candidacy or petition and at least one member from the county of residency of the challenger. Within five days of the filing of the challenge, the panel must schedule a hearing and issue a written decision no more than twenty business days after the challenge is filed. Id. at § 163-127.4(a). Depositions and subpoenas for witnesses or documents are permitted upon request of the parties or the panel. Id. The panel may allow evidence to be presented, such as affidavits, documents, or witnesses under oath; the receipt of which shall be subject to the North Carolina Rules of Evidence. Id. at § 163-127.4(c). After the hearing, the panel "shall make a written decision on each challenge by separately stating findings of facts, conclusions of law, and an order." Id. at § 163-127.4(d). Within two days of the issuance of the written decision, either party has the right to appeal to the Board, which must render an expedited decision based on the entirety of the record. Id. at § 163-127.6(a). Within two days of the Board's issuance of a written decision, either party may appeal to the North Carolina Court of Appeals. Id. at § 163-127.6(b).

When a candidate is subject to a challenge under the statute, "[t]he burden of proof shall be upon the candidate, who must show by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for the office." N.C. Gen. Stat. § 163-127.5(a). The statute provides the required showing for a challenge based on residency but does not designate what type of proof the candidate must provide to meet his or her burden of proof for any other type of challenge. See id. at § 163-127.6(b). The Board is vested with certain general powers, which include general supervision of the elections in the State; appointing and advising members of the county boards of elections; investigation and administration of election laws; determination of the form and content of ballots; and certifying to the appropriate county boards of elections the names of candidates for district offices. N.C. Gen. Stat. § 163-22. If the Board determines that a challenged candidate does not meet the "qualifications" for office, it may, through its certification authority, remove that candidate's name from the ballot, thereby preventing the candidate from running for office.

Plaintiff filed this action on January 31, 2022, seeking declaratory and injunctive relief prohibiting the Defendants from proceeding to adjudicate the January challenge under the state statute. Plaintiff raised four claims for relief alleging violations of his First and Fourteenth Amendment rights, as well as violations of the U.S. Constitution's Qualifications Clause and the 1872 Amnesty Act.

On February 2, 2022, the Supreme Court of North Carolina heard arguments regarding the redistricting question and on February 4, 2022, the Court ruled that the current congressional and legislative redistricting plans were unconstitutional and ordered the drawing of new maps. On February 23, 2022, the state court issued newly drawn maps for state legislative districts in North Carolina, as well as a new map reflecting the congressional districts drawn by an "expert panel." The North Carolina Supreme Court denied all appeals challenging these newly drawn maps. The next day, February 24, 2022, the Board issued a letter to the January challengers informing them that, because they were no longer "qualified, registered voters" in the newly drawn 13 ^th Congressional District, the challenge filed under N.C. Gen. Stat. 163-127.1 et seq. was "no longer valid." Letter, DE 67-1 at 2-3.

Accordingly, this court held a status conference on February 25, 2022, and based on the posture of the case, continued the February 28 hearing on the present motion¹ to March 21, 2022, noting that the court would consider holding an expedited proceeding if circumstances necessitated it. On March 2, 2022, the Board filed a notice informing the court that Plaintiff had withdrawn his January notice of candidacy and filed a notice for the newly drawn 11^th Congressional District; two days later, on March 2, 2022, two individuals from that district filed challenges with the Board (the "March challengers") arguing, on the same basis on which the January challengers relied, that Plaintiff was not eligible to run for office. DE 70. The Board advised that an "emergency application [was] currently pending before the U.S. Supreme...