Democracy N.C. v. N.C. State Bd. of Elections

476 F.Supp.3d 158

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 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.andPhilip 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.

1:20CV457

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

Signed August 4, 2020

George P. Varghese, Stephanie Lin, Wilmer Cutler Pickering Hale and Dorr, LLP, Boston, MA, Hilary H. Klein, Jeffrey Loperfido, Allison Jean Riggs, Southern Coalition For Social Justice, Durham, NC, Jonathan L. Sherman, Michelle E. Kanter Cohen, Fair Elections Center, Rebecca M. Lee, Richard A. Ingram, Wilmer Cutler Pickering Hale and Dorr, LLP, Washington, DC, Joseph J. Yu, Wilmer Cutler Pickering Hale and Dorr, LLP, New York, NY, for Plaintiffs.

Alexander McClure Peters, Kathryne E. Hathcock, Neal T. McHenry, N.C. Department of Justice, Raleigh, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter is before the court on the Amended Motion for Preliminary Injunction against several North Carolina voting and election laws filed by Plaintiffs Democracy North Carolina ("Democracy NC") and The League of Women Voters of North Carolina ("LWV") (together, "Organizational Plaintiffs"), Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards, Robert K. Priddy II, Susan Schaffer, and Walter Hutchins (together, "Individual Plaintiffs"). (Pls.’ Am. Mot. for Preliminary Injunction ("Pls.’ Am. Mot.") (Doc. 31).)

By this order, the court has left the One-Witness Requirement in place, enjoined several rules related to nursing homes that would disenfranchise Plaintiff Hutchins, and enjoined the rejection of absentee ballots unless the voter is provided due process. The remaining requested relief has been denied, often because this court has found Plaintiffs’ evidence fails to establish a likelihood of success on the merits. However, a finding by this court that Plaintiffs have failed to establish a likelihood of success on the merits should not be misunderstood by the parties. Plaintiffs have raised genuine issues of concern with respect to the November General Election. Should Legislative and Executive Defendants believe these issues may now be discounted or disregarded for purposes of the impending election, they would be sorely mistaken.

The COVID-19 pandemic has presented, and continues to present, unique and difficult challenges to all of us. The responses by citizens have been divergent. Some citizens are reasonably and genuinely frightened and have, as a result, retreated to their homes. On the other hand, some citizens are reasonably and genuinely frustrated by limitations to their freedom. Others are reluctant or unwilling to follow recommendations and requirements such as masks and social distancing. It does not appear, from the evidence in this case, that circumstances are likely to change significantly between now and November 3, 2020. As a result, during this election, millions of diverse North Carolinians will leave their homes to assemble and exercise their cherished right to vote in the midst of the unique circumstances caused by COVID-19.

"States have ‘broad powers to determine the conditions under which the right of suffrage may be exercised.’ " Shelby Cty. v. Holder, 570 U.S. 529, 543, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) (quoting Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) ). "Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like." Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070, ––– U.S. ––––, 140 S.Ct. 2603, 207 L.Ed.2d 1129, 2020 WL 4251360 at *11 (July 24, 2020) (Kavanaugh, J., dissenting). Accordingly, the responsibility for conducting a fair, open, and safe election this November is the primary and substantial responsibility of the Executive and Legislative branches of the North Carolina government.

This court heard the testimony of Karen Brinson Bell, the Executive Director of the North Carolina State Board of Elections, and finds her testimony to be both credible and thoughtful. The Executive and Legislative branches would do well to carefully consider the actions proposed by Director Bell and those proposed by Plaintiffs. Any failure by the State government to carefully plan, maintain flexibility and alternatives to potential problems, and consider new and unique ways of addressing an election conducted during a global pandemic could easily lead to the same difficulties experienced by Georgia and other states holding elections during this pandemic, resulting in voters unable to exercise their fundamental right to vote. The 2020 General Election is going to be a test of the North Carolina government's thoughtfulness, adaptability, and responsiveness to a rapidly changing environment due to the COVID-19 pandemic. It will require North Carolina citizens, regardless of any personal feelings they might have with respect to masks, social distancing, and other guidelines, to respect and comply with those guidelines for the safety of all voters and in respect to differing voter concerns. It will require the best of the Legislative and Executive branches, as well as our citizens, to make this General Election safe and open to all eligible North Carolina voters.

Plaintiffs sue Defendants North Carolina State Board of Election ("State BoE"), Damon Circosta, Stella Anderson, Ken Raymond, Jeff Carmon III, David C. Black, Karen Brinson Bell, the North Carolina Department of Transportation ("DOT"), J. Eric Boyette, the North Carolina Department of Health and Human Services ("DHHS"), and Mandy Cohen (together, "Executive Defendants") 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 (the "RA"), 29 U.S.C. § 794, for preliminary and permanent injunctive relief. (Pls.’ Am. Mot. (Doc. 31).) Defendant-Intervenors Philip E. Berger, in his official capacity as the 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 Legislative Defendants"), intervened in this case to oppose Plaintiffs’ suit and to represent the interests of the North Carolina General Assembly. (Docs. 16, 26.)

For the reasons set forth herein, the court will grant Plaintiffs’ motion for preliminary injunction in part and deny it in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

The court held an evidentiary hearing on July 20–21, 2020, and oral argument on July 22, 2020. (Minute Entry 07/20/2020; Minute Entry 07/21/2020; Minute Entry 07/22/2020.) From the evidence submitted, the court makes the following factual findings. The court will address other relevant facts as necessary throughout the Memorandum Opinion and Order. In making these findings, the court has considered the entire record, including the declarations and testimony.¹

1. The Novel Coronavirus Pandemic

This case arises during the coronavirus ("COVID-19") pandemic.

North Carolina Governor Roy Cooper declared a State of Emergency due to COVID-19 on March 10, 2020. Executive Order No. 116, https://files.nc.gov/governor/documents/files/EO116-SOE-COVID-19.pdf (last visited July 31, 2020). On May 22, 2020, Governor Cooper signed Executive Order No. 141 which moved North Carolina into Phase 2 of the statewide reopening plan. Executive Order 141, https://files.nc.gov/governor/documents/files/EO141-Phase-2.pdf (last visited July 31, 2020). Governor Cooper issued Executive Order No. 147 on June 24, 2020, which extended the Phase 2 order. Executive Order No. 147, https://files.nc.gov/governor/documents/files/EO147-Phase-2-Extension.pdf (last visited July 31, 2020). Executive Order No. 147 implements new regulations concerning the wearing of face masks for the prevention of transmission of COVID-19. North Carolina is currently in Phase 2 of reopening, extended by Executive Order No. 151 on July 16, 2020. Executive Order No. 151, https://files.nc.gov/governor/documents/files/EO151-Phase-2-Extension.pdf (last visited on July 31, 2020). At this time, under Executive Order No. 151, North Carolina citizens are encouraged to follow social distancing recommendations, including remaining six-feet apart from others, avoiding close contact, wearing face masks, and frequently washing hands or using hand sanitizer. Id.

2. House Bill 1169

On June 11, 2020, the General Assembly passed House Bill 1169, An Act to Make Various Changes to the Laws Related to...