3 THE STATE OF NORTH CAROLINA, ) THE NORTH CAROLINA STATE BOARD ) OF ELECTIONS; and KIM W. STRACH, ) in her official capacity as ) Executive Director of the North ) Carolina State Board of Elections, ) ) Defendants. ) __________________________________ ) MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, District Judge. In these related cases, Plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 barring Defendants from implementing various provisions of North Carolina Session Law 2013- 381 (“SL 2013- 381”), an omnibus election-reform law. 1 (Docs. 96 & 98 in case 1:13CV861; Docs. 108 & 110 in case 1:13CV658; Docs. 112 & 114 in case 1:13CV660.) 2 Defendants move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Doc. 94.) A trial on the merits is currently scheduled for July 2015. (Doc. 30 at 4.) Plaintiffs include the United States of America (the 1 Throughout the proceedings the parties have referred to the challenged law as “House Bill 589,” its original designation by the North Carolina General Assembly. Because it is a duly-enacted law passed by both chambers of the General Assembly and signed by the Governor, the court will refer to the final product as Session Law 2013-381. Prior to passage, the bill will be referred to as HB 589. 2 Because of the duplicative nature of the filings in these three cases, for the remainder of this Memorandum Opinion the court will refer only to the record in case 1:13CV861 except where necessary to distinguish the cases. Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae3of125 4 “United States”) in case 1:13CV861, the North Carolina State Conference of the NAACP and several organizations and individual plaintiffs (the “NAACP Plaintiffs”) in case 1:13CV658, and the League of Women Voters of North Carolina along with several organizations and individuals (the “League Plaintiffs”) in case 1:13CV660. Additionally, the court allowed a group of young voters and others (the “ Intervenor s”) to intervene in case 1:13CV660. (Doc. 62 in case 1:13CV660.) Considered together, Plaintiffs raise claims under the Fourteenth, Fifteenth, and Twenty-Sixth Amendments to the United States Constitution as well as Section 2 of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. § 1973. (Doc. 1 in case 1:13CV861; Doc. 52 in case 1:13CV658; Docs. 1 & 63 in case 1:13CV660.) The United States also moves for the appointment of federal observers to monitor future elections in North Carolina pursuant to Section 3(a) of the VRA, 42 U.S.C. § 1973a(a). (Doc. 97 at 75-77.) Finally, Plaintiffs move to exclude and strike the testimony of three of Defendants’ expert witnesses. (Docs. 146, 148, & 150.) Defendants are the State of North Carolina, Governor Patrick L. McCrory, the State Board of Elections (“SBOE”), and several State officials acting in their official capacities. They contend that Plaintiffs have not stated any claims for which relief can be granted under either the Constitution or the Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae4of125 5 VRA and, in any event, have not established entitlement to preliminary relief. (Docs. 94, 95 & 126.) The court held a four-day evidentiary hearing and argument beginning July 7, 2014. The record is extensive. Throughout the proceedings, there was much debate over the policy merits of SL 2013-381 as an election law and the popularity and desirability of various voting mechanisms it affects. It is important to note that, while these have evoked strongly-held views, this is not the forum for resolving that aspect of the parties ’ dispute; such considerations are matters for legislative bodies to address. The jurisdiction of this court is limited to addressing the legal challenges raised based on the evidence presented to the court. After careful consideration, the court concludes that Defendants’ motion for judgment on the pleadings should be denied in its entirety. Plaintiffs ’ complaints state plausible claims upon which relief can be granted and should be permitted to proceed in the litigation. However, a preliminary injunction is an extraordinary remedy to be granted in this circuit only upon a “clear showing” of entitlement. After thorough review of the record, the court finds that as to two challenged provisions of SL 2013-381, Plaintiffs have not made a clear showing they are likely to succeed on the merits of the underlying legal claims. As to the remaining provisions, the court finds that Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae5of125 6 even assuming Plaintiffs are likely to succeed on the merits, they have not demonstrated they are likely to suffer irreparable harm - a necessary prerequisite for preliminary relief - before trial in the absence of an injunction. Consequently, the motions for preli minary injunction and the United States’ request for federal observers will be denied. This resolution renders the motions to exclude expert testi 9 clearance” under Section 5 of the VRA, 42 U.S.C. § 1973c(a), because many North Carolina counties were “covered jurisdictions” under that Section. However, at that time the United States Supreme Court was considering a challenge to the DOJ’s ability to enforce Section 5. On June 25, the Supreme Court issued its decision in Shelby County v. Holder, 133 S. Ct. 2612 (2013), declaring the formula used to determine the Section 5 covered jurisdictions, 42 U.S.C. § 1973b(b), to be unconstitutional. The next day, Senator Thomas Apodaca, Republican Chairman of the Rules Committee, publicly stated, “ S o, now we can go with the full bill.” (J.A. at 1831.) The contents of the “full bill” were not disclosed at the time. A meeting of the Rules Committee was subsequently scheduled for July 23. (See J.A. at 2452.) The night before the Rules Committee meeting, the new bill, now 57 pages in length, was posted for the members on the Rules Committee website. 7 (J.A. at 183-84 (declaration of Sen. Josh Stein); Doc. 164 at 111-12 (testimony of Sen. Dan Blue); J.A. at 2129-85.) In addition to the voter ID provisions, 8 HB 589 now 7 A version of HB 589 appears to have been distributed to members of the Rules Committee who were present on July 18, 2013. (Doc. 134-4 at 3.) It is not clear whether this version differed from that posted on the website on July 22. 8 The voter ID provisions contained significant changes. For example, the list of acceptable identifications no longer included those issued by a state university or community college. (Compare J.A. at 2102-03 Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae9of125 10 included many additional provisions, including the following that are being challenged in this litigation: (1) the reduction of the period for so- called “early voting” 9 from 17 to ten days; (2) the elimination of same- day registration (“SDR”), which permitted voters to register and then vote at the same time during the early-voting period; (3) the prohibition on the counting of provisional ballots cast outside of a voter’s corre ct voting precinct on Election Day (“out -of- precinct” ballots); (4) the expansion of allowable poll observers and voter challenges; (5) the elimination of the discretion of county boards of election (“CBOEs”) to keep the polls open an additional hour on El ection Day in “extraordinary circumstances”; and (6) the elimination of “pre - registration” of 16- and 17-year-olds who will not be 18 by the next general election. 10 The bill proposed that the voter ID requirement go (original bill filed in the House on April 4, 2013), with J.A. at 2130 (version approved by the Senate Rules Committee on July 23, 2013).) 9 Early voting is a term used to describe in-person absentee voting at designated locations before Election Day. 10 Apart from the voter ID provisions, which were new, the bill largely purported to repeal, amend, or update existing law. Other amendments included: (1) making it illegal to compensate persons collecting voter registrations based on the number of forms submitted (Part 14); (2) reducing the number of signatures required to become a candidate in a party primary (Part 22); (3) deleting obsolete provisions about the 2000 census (Part 27) (4) changing the order of candidates appearing on the ballot (Part 31); (5) eliminating straight-ticket voting (Part 32); (6) moving the date of the North Carolina presidential primary earlier in the year (Part 35); (7) eliminating taxpayer funding for appellate judicial elections (Part 38); (8) allowing funeral homes to Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae10of125 11 into effect in 2016 but be implemented through a “soft rollout , ” whereby voters would be advised at the polls in 2014 and 2015 of the law’s requirement that they will need a qualifying picture ID to vote beginning in 2016. At the committee meeting on July 23, Senator Apodaca allowed members of the public in attendance to speak for two minutes. 11 (See Doc. 134-4 at 45-60.) Speakers included the League Plaintiffs’ counsel, Riggs, as well as Jamie Phillips, who represented the North Carolina State Conference of the NAACP. (Id. at 45-47, 57-58.) Although the majority of comments addressed the voter ID requirement, citizens also spoke in opposition to the other challenged provisions, including the elimination of SDR and pre-registration and reduction of early voting. Several opponents characterized the bill as an effort at voter suppression. (See, e.g., id. at 45 ( Riggs: “voter suppression at its very worst” ); id. at 57 ( Phillips: “The fewer young people and minorities who vote, the better it seems in your minds. We get it. No one is being fo oled.”) .) After participate in canceling voter registrations of deceased persons (Part 39); and (9) requiring provisional ballots to be marked as such for later identification (Part 52). The bill also proposed mandating that several matters be referred for further study, including requiring the Joint Legislative Oversight Committee to examine whether to maintain the State’s current runoff system in party primaries. (Part 28.) 11 There is no indication the two-minute time allotment was a deviation from normal rules. Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae11of125 12 debate, the bill passed the committee and proceeded to the floor for second reading. (Id. at 80.) The following afternoon, on July 24, HB 589 was introduced on the floor of the full Senate. (Id. at 84.) During several hours of debate after the bill’s second reading, Democratic Senators introduced and discussed several proposed amendments. Most significantly, Senator Josh Stein introduced an amendment to require the CBOEs to offer the same number of aggregate hours of early voting as were offered in the last comparable election (whether presidential or off-year). (Id. at 125-26.) This could be accomplished, he proposed, by CBOEs offering more hours at present sites, or by opening more sites. (Id. at 130-31.) Senator Stein argued that the amendment would reduce, but not eliminate, the impact the reduction of early-voting days would have on all voters, including African-Americans. (Id. at 111.) Senator Robert Rucho, the Republican sponsor of HB 589, asked the Senate to support Senator Stein’s amendment ( id. at 126), and it passed by a vote of 47 to 1 (id. at 131). The Senators also exchanged argument on many of the other challenged provisions, including voter ID, SDR, pre-registration, and the increase in allowable poll observers, as well as several provisions not at issue here (including the elimination of straight-ticket voting and reduction of various campaign-finance restrictions). (See generally id. at 148-223.) At the close of Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae12of125 21 behalf of its members because the Board of Election Commissioners injured individual association members “by preventing them from registering new voters.” Id. at 399. 17 By contrast, in People Organized for Welfare and Employment Rights (P.O.W.E.R.) v. Thompson, 727 F.2d 167 (7th Cir. 1984), an association dedicated to increasing political power of the poor and unemployed sued to compel the State to allow city registrars to conduct voter-registration drives in the waiting rooms of State social services offices. The Seventh Circuit found that the association lacked standing: P.O.W.E.R. in bringing this suit alleged only that its goal of improving the lot of the poor and the unemployed required for its fulfillment that the state make it easier for them to register. This might be a persuasive basis for standing if P.O.W.E.R. had been trying to advance its goal by registering new voters itself. Anyone who prevented it from doing that would have injured it, just as the defendants in this case would have injured it if they had prevented it from going into waiting rooms and urging the people waiting there to register. But P.O.W.E.R. was never forbidden to do that , and never sought to do the actual registering of voters. Id. at 170 (emphasis in original) (citations omitted). Read 17 Wamser specifically addressed the association’s standing to sue on the basis of injury to its individual members, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (to have standing, an association must prove that its members would have had standing to sue in their own right), rather than organizational injury, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (an action adverse to an organization’s interests that causes a drain on its resources is a legally cognizable injury). Thus, Wamser is applicable to Intervenors’ claim , which only involves individuals – not an association or organization. Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae21of125 22 together, Wamser and P.O.W.E.R. indicate that an individual or association would not have standing to compel Defendants to allow a third party to conduct voter-registration drives but suffers a cognizable injury if they prevent the litigant him- or herself from registering voters. Here, Intervenors allege and produced evidence that they pre-registered young voters in the past and would continue doing so had SL 2013-381 not eliminated that program. (Doc. 63 ¶ 10 in case 1:13CV660; Doc. 159-3 ¶¶ 5-6.) Although Defendants attempt to draw a distinction between registration and pre-registration, they fail to explain why any difference matters. Rather, pre-registration appears to be the functional equivalent of registration, except that 16- and 17-year- olds’ applications wait in a “hopper” to be processed by the State upon eligibility. (Doc. 167 at 184.) Furthermore, harm to an interest in registering voters is not the only civic harm courts have recognized as sufficient for standing. See Lerman v. Bd. of Elections in City of N.Y., 232 F.3d 135, 141-43 (2d Cir. 2000) (finding harm to an individual’s interest in witnessing petition signatures legally cognizable). Based on the current allegations and evidence, Intervenors have sufficiently alleged standing to challenge the elimination of pre-registration because they allege that SL 2013-381 directly injures their interest in registering 16- and 17-year-olds. Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae22of125 23 Ordinarily, the standing inquiry would end here. However, Intervenors have moved to preliminarily enjoin the elimination of pre-registration, and whether they can demonstrate irreparable harm to justify an injunction depends in part on the scope of the harm they properly assert. So, the court must consider Intervenor s’ alternative bases for standing to the extent they rely on other claims of harm. Intervenors contend that they will have to expend greater effort and resources to register young, 18-and-older voters because they were not pre-registered as 16- or 17-year-olds. (Doc. 159 at 4-5.) Defendants dispute this as a factual matter, arguing that there is no greater effort required to register an 18-year-old than a 16-year-old. (Doc. 168 at 6-7.) However, there may be reasons why registering 16- and 17-year-olds is more effective and less expensive than registering 18-year-olds, and at this stage in the litigation the court is bound to accept Intervenor s’ reasonable factual allegations as true. Therefore, to the extent that Intervenors assert it takes greater effort to register young voters who otherwise would have been pre-registered, they have alleged a direct, legally cognizable injury. However, to the extent they seek to ground their injury in loss of resources, relying on authority applicable to organizational plaintiffs and without any allegations or Case1:13-cv-00658-TDS-JEPDocument184Filed08/08/14Pae23of125 24 evidence of financial harm (Doc. 159 at 4-5), that argument fails. Intervenors also contend that they will have to expend
Posted on: Sat, 09 Aug 2014 07:05:47 +0000
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