Disability Rights NC v. North Carolina Board of Elections

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:21-CV-361-BO

DISABILITY RIGHTS NORTH )

CAROLINA, )

Plaintiff, )

)

) ORDER

)

NORTH CAROLINA STATE BOARD )

OF ELECTIONS, KAREN BRINSON )

BELL, in her official capacity as Executive )

Director of the NCSBOE, DAMON )

CIRCOSTA, in his official capacity as )

Chair of the NCSBOE, STELLA )

ANDERSON, in her official capacity as )

Secretary of the NCSBOE, JEFF )

CARMON III, in his official capacity as )

Member of the NCSBOE, STACY )

EGGERS IV, in his official capacity as )

Member of the NCSBOE, and TOMMY )

TUCKER, in his official capacity as )

Member of the NCSBOE, )

Defendants. )

This cause comes before the Court on plaintiffs motion for summary judgement [DE 33]

and the parties’ joint motion to expedite consideration [DE 38] of the motion for summary

judgement. For the reasons that follow, both motions are granted.

BACKGROUND

Plaintiff Disability Rights North Carolina ("DRNC") is an independent non-profit

organization that focuses on protecting the voting righits of North Carolinians with disabilities.

DRNC is designated as a North Carolina Protection and Advocacy system, which authorizes it to

pursue legal, administrative, and other appropriate remedies to ensure the protection of the rights

of individuals with disabilities. See 42 U.S.C. §§ 300d-53, 405, 10801 ef seqg., 1320b-21, 15041-

15045; 29 U.S.C. §§ 794e, 3004; 52 U.S.C. §§ 21061-21062. All North Carolina voters with

disabilities are constituents of DRNC.

To vote using an absentee ballot in North Carolina, a voter must obtain an absentee ballot

request form, complete and return the request form, receive an absentee ballot form in the mail,

and complete and mail the absentee ballot. Section 208 of the federal Voting Rights Act states that

"fa|lny 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." 52 U.S.C. § 10508.

Plaintiff DRNC brought this suit to challenge several North Carolina laws that plaintiff

claims limit the voting rights of disabled North Carolinians. Specifically, North Carolina laws

prohibit voters with disabilities living in facilities like clinics, hospitals, and nursing homes from

relying on persons associated with those facilities for assistance with any of the steps required to

vote absentee. Thousands of individuals with disabilities in North Carolina are residing in

hospitals, clinics, and nursing homes (congregate settings) and need assistance with voting because

of their disabilities. Often times, facility staff are the only people available to help these individuals

with their absentee ballots and plaintiff argues that they should be allowed to provide a trusted

source of assistance. Additionally, plaintiff represents the interests of disabled persons residing

outside of congregate care facilities whose voting rights are also curtailed by the North Carolina

voting provisions. Plaintiff brought this suit to enforce the federal right of voters with disability to

rely on the assistant of their choosing when they vote.

Plaintiff filed its complaint on September 9, 2021, challenging North Carolina's absentee

ballot request provisions in N.C. Gen. Stat. §§ 163-230.1, 230.2(e) and 230.3; absentee ballot

completion provisions in §§ 163-226.3(a)(4) and (a)(6); and absentee ballot delivery provision in

§ 163-231(b)(1). Plaintiff alleges that these provisions conflict with Section 208 of the Voting

Rights Act and the Supremacy Clause. Plaintiff named the North Carolina State Board of Elections

and six election officials in their official capacity, pursuant to 42 U.S.C. § 1983, as defendants in

this case. The North Carolina State Board of Elections ("NCSBOE") is the state agency responsible

for managing and supervising elections in North Carolina.

Defendants filed a motion to dismiss on November 1, 2021. The parties filed a joint motion

to expedite consideration of the motion to dismiss and to modify the discovery plan on April 26,

2022. The motion to expedite and to modify the discovery schedule was granted on April 29, 2022.

On May 4, 2022, the Court denied defendants’ motion to dismiss and found that plaintiff had

plausibly stated a claim that the North Carolina provisions conflicted with federal law. On June

15, 2022, plaintiff filed a motion for summary judgement, seeking declaratory and injunctive relief.

The parties filed a joint motion to expedite consideration of plaintiff's motion for summary

judgement on July | and requested that the motion for summary judgement be ruled upon before

the end of July so that the state could meet printing deadlines in preparation to disseminate 2022

absentee ballots.

DISCUSSION

Plaintiff has filed a motion for summary judgement, asking the Court for a declaration that

defendants have violated and continue to violate Section 208 of the Voting Rights Act by

infringing on the rights of voters with disabilities to receive assistance from the person of their

choice and a permanent injunction prohibiting defendants from enforcing those provisions as they

relate to voters with disabilities. Defendants responded and argued that plaintiff does not have

standing to seek relief for individuals residing outside of congregate settings, and that the

challenged provisions are not preempted by federal law because the provisions help further the

purpose of Section 208 of the Voting Rights Act.

As an initial matter, the parties' motion to expedite consideration of the pending motion is

granted for good cause shown.

I. Standing

Standing is the determination of whether a plaintiff is the proper party to assert a claim in

federal court; it "is founded in concern about the proper—and properly limited role—of the courts in

a democratic society." Warth v. Seldin, 422 U.S. 490, 498 (1975). An organization who is not an

individual may demonstrate two types of standing: associational standing, where the organization

represents the interests of constituents who would otherwise have standing; and organizational

standing, where the organization itself has interests relating to the alleged wrong. Hunt v. Wash.

State Apple Adver. Comm'n., 432 U.S. 333, 343-47 (1977). Defendants concede that plaintiff has

associational and organizational standing as to voters living in congregate settings, but disputes

plaintiff's ability to bring claims on behalf of disabled North Carolina voters who live outside of

congregate homes.

Associational standing may be asserted by an organization where:

(a) its members would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organization's purpose; and (c)

neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit.

Id. at 343. A non-membership organization has associational standing where it possesses the

"indicia of membership." Jd. at 344. This Court and others! have previously decided that DRNC

Wilson v. Thomas, 43 F. Supp. 34 628, 632 (E.D.N.C. 2014) (holding that DRNC represents the interests of North

Carolinians with disabilities and has standing to pursue claims on their behalf); Dunn v. Dunn, 219 F. Supp. 3d 1163,

1171 (M.D. Ala. 2016) (surveying courts that have "squarely held[] that Congress, by granting P&As the authority to

pursue legal remedies to ensure the protection of those with disabilities, abrogated" the third prong of the Hunt test).

and organizations like DRNC have associational standing to pursue claims on behalf of individuals

with disabilities. All voters with disabilities in North Carolina are constituents of DRNC, and this

action is brought on behalf of those who need assistance with voting. DE 33-3, pp. 33-34, 37-39.

Therefore, DRNC possesses the indicia of membership with individuals in and outside of

congregate settings who would be able to sue on their own behalf, which satisfies the first prong

of Hunt. Second, ensuring access to voting by people with disabilities is germane to DRNC's

purpose. DE 33-2, pg. 34. Third, plaintiff's claim does not require the participation of any one

member. Accordingly, plaintiff has satisfied the Hunt test and has associational standing on behalf

of all of its members, inside and outside of congregate homes.

Where an organization experiences a "perceptible" diversion of resources and frustration

of purpose, it may seek redress in its own right through organizational standing. Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 (1982); People for the Ethical Treatment of Animals, Inc. v.

Tri-State Zoological Park of W. Ma., Inc., 843 F. App'x 493, 497 (4th Cir. 2021). Plaintiff DRNC

has demonstrated that it has diverted significant resources to providing support for constituents

impacted by the challenged North Carolina provisions, and that the provisions frustrate DRNC's

purpose of ensuring all disabled North Carolina voters receive their federally guaranteed rights.

DE 33-3, pp. 34-35, 37-39. Accordingly, plaintiff has demonstrated organizational standing in that

plaintiff as an organization is harmed by the challenged provisions.

Plaintiff has demonstrated both associational and organizational standing to challenge the

North Carolina voting provisions.

II. Motion for Summary Judgement

A motion for summary judgment may not be granted unless there are no genuine issues of

material fact for trial, and the movant is entitled to judgment as a matter of law. FED. R. P.

56(a).

Genuine Issue of Material Fact

The moving party bears the initial burden of demonstrating the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a

genuine issue of material fact exists, courts view the evidence and inferences in the light most

favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). "A dispute is genuine

if a reasonable jury could return a verdict for the nonmoving party, and a fact is material if it might

affect the outcome of the suit under the governing law." Variety Stores, Inc. v. Wal-Mart Stores,

Inc., 888 F.3d 651, 659 (4th Cir. 2018) (internal quotations and alterations omitted). Speculative

or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645,

649 (4th Cir. 2002).

If that burden has been met, the non-moving party must then come forward and establish

the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 588 (1986). The non-moving party may not rest on mere

allegations or denials and cannot present only a scintilla of evidence. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248-52 (1986). Evidence that is "merely colorable" or "not significantly

probative" will not suffice to defeat a motion for summary judgement. Jd. at 249. If the spposing

party fails to bring forth facts showing that "reasonable minds coulci differ" on a material point,

then disposition by summary judgement is appropriate. Jd. at 250; see also Teamsters Joint

Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991).

Plaintiff has demonstrated that there are no issues of triable facts remaining in the case. DE

33-1. Defendants filed an "Opposing Statement of Material Facts in Dispute," [DE 36], but raised

no material disputes other than different legal interpretation of existing statutes. In sum, the Court

finds no genuine issues of material fact.

Judgement as a Matter of Law

Conflict preemption applies where compliance with both federal and state law is not

possible, or "where state law stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress." Gade v. Nat'l. Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98

(1992) (internal quotation marks and citations omitted). "What is a sufficient obstacle is a matter

of judgment, to be informed by examining the federal statute as a whole and identifying its purpose

and intended effects." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000).

A. The Voting Rights Act

The Voting Rights Act was enacted by Congress in 1965 to forbid states from imposing

practices that abridged the right of any U.S. citizen to vote on account of race or color. Shelby Cty.,

Ala. v. Holder, 570 U.S. 529, 537 (2013). The purpose was to create a guaranteed right to the

voting process that could not be narrowed or limited by state legislation. Section 208 of the Voting

Rights Act gives voters who require assistance to vote because of blindness, disability, or inability

to read or write, the right to "assistance by a person of the voter's choice,” so long as the assistant

is not the "the voter's employer or agent of that employer or officer or agent of the voter's union."

52 U.S.C.A. § 10508. The express exclusion of only two groups is significant, because it implies

that all other categories of assisters are permitted. If Congress intended to exclude more categories,

or to allow states to exclude more categories, it could have said so.” Accordingly, other than these

two excluded groups, the plain language of Section 208 gives voters unrestricted choice over who

may assist them with the voting process.? See Arkansas United v. Thurston, No. 5:20-CV-5193,

2020 WL 6472651, at *4 (W.D. Ark. Nov. 3, 2020) ("there is nothing in the statutory language to

suggest that a state may burden, unduly or otherwise, the right [to choice] articulated in § 208.").

"Vote" or "voting" is defined by the statute itself as including "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." Jd. § 10310(c)(1). "To vote, therefore,

plainly contemplates more than the mechanical act of filling out the ballot sheet. It includes steps

in the voting process before entering the ballot box, 'registration,' and it includes steps in the voting

process after leaving the ballot box, ‘having such ballot counted properly."" OCA-Greater Houston

v. Texas, 867 F.3d 604, 614-15 (5th Cir. 2017) (quoting the Voting Rights Act). "’Voting' includes

the delivery of an absentee ballot to a county board of elections as an action 'necessary to make a

vote effective Democracy N. Carolina v. N. Carolina State Bd. of Elections, 476 F.Supp.3d 158,

234-35 (M.D.N.C. 2020) (quoting 52 U.S.C.A. § 10310(c)(1)), reconsideration denied, No.

1:20CV457, 2020 WL 6591396 (M.D.N.C. Sept. 30, 2020). Accordingly, the plain language of

Section 208 provides a right to assistance with the voting process by a person of the voter's choice,

other than the voter's employer or union agent.

? The use of the indefinite article "a" does not show intent by Congress to allow states to restrict a federally created

right, for Congress does not “hide elephants in mouseholes." Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468

(2001); see Arkansas United v. Thurston, No. 5:20-CV-5193, 2020 WL 6472651, at *4 (W.D. Ark. Nov. 3, 2020).

3 When interpreting a statute, "[t]he first step 'is to determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in the case." Barnhart v. Sigmon Coal Co., 534 U.S. 438,

450 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).

The legislative history of Section 208 shows that at least one of Congress's purposes in

enacting the amendment was to ensure that voters with disabilities would be able to choose their

own assistor. The Senate Judiciary Committee of the 97" Congress identified "the blind, the

disabled, and those who either do not have a written language or who are unable to read," as a

"discrete groups of citizens [who prior to the passing of Section 208 were] unable to exercise their

rights to vote without obtaining assistance in voting[.]"* S. Rep. 97-417, 62, 1982 U.S.C.C.A.N.

177, 240. The Committee emphasized the importance of affording voters with disabilities

unfettered choice in assistants:

[T]he Committee has concluded that [voters] must be permitted to have the

assistance of a person of their own choice. The Committee concluded that this is

the only way to assure meaningful voting assistance and to avoid possible

intimidation or manipulation of the voter. To do otherwise would deny these voters

the same opportunity to vote enjoyed by all citizens.

S. Rep. 97-417, 1982 U.S.C.C.A.N. 177, 240-41 (emphasis added); see generally OCA-Greater

Houston, No. 1:15-CV-00679-RP, 2016 WL 9651777, at *9 (W.D. Tex. Aug. 12, 2016) ("In

adding Section 208, Congress recognized that voting is a process."), aff'd, 867 F.3d 604 (Sth Cir.

2017).

The Senate Committee did, however, acknowledge that states may need to adopt

procedures in order to administer elections, but stated that "the legitimate right of any state to

establish necessary election procedures" was "subject to the overriding principle that such

procedures shall be designed to protect the rights of voters." 1982 U.S.C.C.A.N. 177, 241. The

purpose of Section 208 was to give voters with disabilities unrestricted choice in their right to

assistance, thus it cannot have been Congress's intent to permit state voting laws to directly restrict

Prior to the passage of Section 208, the Senate Committee stated that disabled people were in the “adverse

circumstance[] of not being able to choose their own assistance[.]" S. Rep. 97-417, 62, 1982 U.S.C.C.AN. 177, 240.

that right. Accordingly, states may not impose additional limits on disabled voters’ choice of

assistant, other than the two excluded groups in the text of Section 208.

B. Ballot request provisions in §§ 163-230.1, 230.2, and 230.3

Sections §§ 163-230.1, 230.2(e) and 230.3 of the North Carolina General Statutes limit

who can help a voter request an absentee ballot. N.C. Gen. Stat. § 230.2(e) states that "[a] request

for absentee ballots is not valid if. . . [t]he completed written request is completed, partially or in

whole, or signed by anyone other than the voter, or the voter's near relative or verifiable legal

guardian." The same limitation applies to requesting a ballot through an online portal. Jd. § 163-

230.3. Requesting an absentee ballot is part of "voting" and, therefore, is encompassed in Section

208. See id. § 10310(c)(1); OCA-Greater Houston, 867 F.3d at 614-15; See also Democracy N.C.,

476 F. Supp. 3d at 234-35 (holding that provisions of North Carolina election law that relate to

various aspects of the absentee voting process are subject to the Voting Rights Act).

The plain language of North Carolina's provisions impermissibly narrows a Section 208

voter's choice of assistant from the federally authorized right to "a person of the voter's choice" to

"the voter's near relative or verifiable legal guardian." A "state cannot restrict this federally

guaranteed right by enacting a statute tracking its language, then defining terms more restrictively

than as federally defined." OCA-Greater Houston, 867 F.3d at 615 ("the problem remains that the

Texas provisions expressly limit the right to the act of casting a ballot. It should go without saying

that a state cannot restrict this federally guaranteed right...").

Defendants' arguments that the North Carolina provision does not conflict with the Vcting

Rights Act because it serves the same purpose is not persuasive. Defendants assert that, in the

name of warding off election fraud or manipulation of disabled voters, states may further restrict

those who are able to assist disabled voters with the voting process. Congress contemplated the

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vulnerability of disabled voters when it discussed providing unrestricted choice of assistants and

provided two explicitly excluded groups. States are not permitted to limit the right to assistance

further.

Accordingly, N.C. Gen. Stat. §§ 163-230.1, 230.2(e) and 230.3 conflict with federal law

and are preempted by the Voting Rights Act. Gade, 505 U.S. at 98.

C. Ballot completion provisions in § 163-226.3

N.C. Gen. Stat. §§ 163-226.3(a)(4) and (a)(6) prohibits "any owner, manager, director,

employee, or other person, other than the voter's near relative or verifiable legal guardian, to (i)

make a written request pursuant to G.S. 163-230.1 [for an absentee ballot] or (ii) sign an

application or certificate as a witness, on behalf of a registered voter, who is a patient in any

hospital, clinic, nursing home or rest home in this State or for any owner, manager, director,

employee, or other person other than the voter's near relative or verifiable legal guardian, to mark

the voter's absentee ballot or assist such a voter in marking an absentee ballot." These prohibitions

cover a range of activities that would constitute "voting" pursuant to the Voting Rights Act,

including casting a ballot and having that ballot counted. See 52 U.S.C. § 10310.

The plain language of these provisions restricts the right of assistance guaranteed to Section

208 voters residing in facilities. The provisions stand as an obstacle to Congress's intent and

purpose in enacting Section 208. Accordingly, N.C. Gen. Stat. §§ 163-226.3(a)(4) and (a)(6) are

preempted by the Voting Rights Act. Gade, 505 U.S. at 98; see Democracy N. Carolina, 476

F.Supp.3d at 235 (enjoining the enforcement of N.C. Gen. Stat. § 163-226.3(a)(4) against a single

patient in a nursing home).

D. Ballot delivery provisions in § 163-231

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N.C. Gen. Stat. § 163-231(b)(1) states that absentee ballots "shall be transmitted by mail

or by commercial courier service, at the voter's expense, or delivered in person, or by the voter's

near relative or verifiable legal guardian." Mailing an absentee ballot is an "action required by law

prerequisite to voting, casting a ballot, and having such ballot counted." 52 U.S.C. §§ 10508,

10310. Therefore, it is encompassed by Section 208. See Democracy N.C., 476 F. Supp. 3d at 234

(applying definition of "voting" to absentee ballot delivery provision). This provision

impermissibly narrows the right to assistance by a person of the voter's choice by prohibiting the

mailing or delivery of a voter's ballot by anyone except a near relative or legal guardian.

Accordingly, N.C. Gen. Stat. § 163-231(b)(1) is preempted by the Voting Rights Act. Gade, 505

US. at 98.

All challenged North Carolina provisions are shown to be in conflict with federal law, and

thus are preempted by the Voting Rights Act. States may not limit the federally guaranteed right

of disabled voters to access assistance guaranteed by Section 208. Plaintiff is entitled to declaratory

relief, and plaintiff's motion for summary judgement is granted.

III. Requested Injunctive Relief

Injunctive relief is appropriate when a plaintiff shows: (1) irreparable injury, that (2) cannot

be adequately compensated for with monetary damages; (3) the balance of hardships tilts in favor

of plaintiff; and (4) equitable relief is in the public interest. SAS Jnst., Inc. v. World Programming

Ltd., 874 F.3d 370, 385 (4th Cir. 2017).

First, DRNC has demonstrated that if these challenged provisions are enforced upon North

Carolina voters, both DRNC as an organization and the individual constituents will be irreparably

harmed. For plaintiff, the harm includes continued diversion of resources, frustration of its mission,

and an inability to address other voting rights needs of constituents. For plaintiff's constituents, the

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irreparable harm is the continued deprivation of their rights under Section 208. See League of

Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) ("restrictions on

fundamental voting rights [are an] irreparable injury. . .. And once the election occurs, there can

be no do-over and no redress. The injury to these voters is real and completely irreparable if

nothing is done."); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); Williams v.

Salerno, 792 F.2d 323, 326 (2nd Cir. 1986); Council of Alternative Political Parties v. Hooks, 121

F.3d 876 (3d Cir. 1997). Second, the harm to DRNC and its constituents cannot be remedied with

monetary damages, as it relates to the impairment of the fundamental right to vote.

Third, the balance of hardships tilts in favor of plaintiff. Plaintiff has demonstrated that its

constituents and itself as an organization will be subject to substantial injury and hardship if the

status quo is able to continue. In addressing plaintiff's request for injunctive relief, defendants only

argue that relief should be limited to individuals in congregate care or those who are specifically

disabled. Defendants do not assert that they will be subjected to hardship should injunctive relief

be granted.

If the moving party files a motion for summary judgement based on a legal theory in

plaintiff's complaint and the opposing party fails "to address arguments made in favor of summary

judgment, the opposing party concede[s] that summary judgment is appropriate." Kettle v.

Leonard, No. 7:11-CV-189, 2012 WL 4086595, *5 (E.D.N.C. Sept. 17, 2012) (quotations

omitted). Failing to address arguments made in favor of summary judgement amounts to "an

outright failure to join in the adversarial process [and] ordinarily results in waiver.” Alvarez v.

Lynch, 828 F.3d 288, 295 (4th Cir, 2016) (quotations omitted). Defendants have fa‘led to address

the balance of hardships in this case. Further, requiring a state to comply with the law is not a

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burden. See Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986). Accordingly, the Court finds

plaintiff's arguments persuasive.

Fourth, the relief in this case is in the public interest. "[T]he public has a strong interest in

exercising the fundamental political right' to vote," Husted, 697 F.3d at 436-37 (internal quotations

omitted), and "[t]he public interest ... favors permitting as many qualified voters to vote as

possible," League of Women Voters of N.C., 769 F.3d at 247. The public interest is served by

protecting federally guaranteed voting rights in North Carolina. Plaintiff has met all four criteria

and is entitled to a permanent injunction.

CONCLUSION

Accordingly, plaintiffs motion for summary judgement [DE 33] is GRANTED. The

parties' motion to expedite consideration [DE 38] is GRANTED. N.C. Gen. Stat. §§ 163-226.3,

230.1, 230.2, 230.3, and 163- 231(b)(1), as applied to voters with disabilities who need assistance

with voting, conflict with federal law and are preempted by the Voting Rights Act. Defendants are

enjoined from enforcing such provisions against voters with disabilities in North Carolina.

SO ORDERED, this 1D day of July, 2022.

) Lerenel ty), 6 vet

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE

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