DEMOCRACY NORTH CAROLINA v. NORTH CAROLINA STATE BOARD OF ELECTIONS

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. ) 1:20CV457

)

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. )

)

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. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before the court are Defendant-Intervenors

Philip E. Berger and Timothy K. Moore’s (“Legislative

Defendants”) Motion for All Writs Act Relief, (Doc. 154), and

Plaintiffs’ Motion for Affirmative Relief, (Doc. 156). This

court finds that the North Carolina State Board of Elections

improperly used this court’s Memorandum Opinion and Order of

August 4, 2020, in setting out its revised Numbered Memo

2020-19, thereby frustrating and circumventing the already-

issued preliminary injunction order, (Doc. 124), over which this

court has continuing jurisdiction. This court will grant

Defendant-Intervenors’ motion in part to enjoin the State Board

of Elections’ elimination of the witness requirement.

Plaintiffs’ motion will be denied.

I. FACTUAL BACKGROUND

On August 4, 2020, this court issued a preliminary

injunction order, (Memorandum Opinion and Order, (“August

Order”) (Doc. 124)), that “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.” (Id. at 3.) This court’s August Order is still in

effect, as no party has appealed this court’s grant of a

preliminary injunction recognizing and ensuring voters’ Due

Process rights.

A. Communications Prior to August 21, 2020

Shortly after this court issued the August Order, in a

letter dated August 12, 2020, Plaintiffs communicated with

Defendant State Board of Elections (“SBE”) officials regarding

Plaintiffs’ understanding that this court’s August Order would

require any “law or rule” that SBE issued to “provide voters

with timely notice of any issues that would cause their ballot

to be rejected, as well as an opportunity to be heard such that

voters may cure those deficiencies1 and have their votes properly

counted.” (Doc. 148-2 at 2.)2

In particular, Plaintiffs advised Defendant SBE officials

of “what, in Plaintiffs’ view, [were] the required elements of

the law or rule required by the Court in order to satisfy due

process.” (Id. at 3.)

First, Plaintiffs requested “[p]rompt identification and

notice,” for “those issues easily identified on the face of the

absentee ballot envelope . . . .” (Id.) For those issues,

“[C]ounty board of election staff members should identify and

provide notice to the voter of any defect that [would] prevent

their vote from being counted within 1 business day of receiving

the ballot.” (Id.) Plaintiffs requested that notice occur

1 This statement by Plaintiffs misstates this court’s order.

That order is limited to requiring the SBE to provide “due

process as to those ballots with a material error that is

subject to remediation.” (August Order (Doc. 124) at 187.) The

August Order did not require provision of a cure for every

deficiency.

2 All citations in this Memorandum Opinion and 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.

“before the next county board of elections meeting in which the

board approves and rejects ballots,” which Plaintiffs indicated

in its letter, would “start 5 weeks before Election Day.” (Id.)

Second, Plaintiffs requested “[n]otice by all means

reasonably available,” specifically of “a material defect and

the method of curing that defect.” (Id.) “Notice of the material

defect and method of curing it should also be provided on the

online tracking tool (which is required under H.B. 1169

. . . ).” (Id.) Plaintiffs further said that “[s]uch outreach

should include looking for contact information beyond that

provided by the voter on the absentee application envelope,

including, at least, using mail, telephone, and email to the

extent that information is available from voter registration

forms and on the SEIMS [statewide election information

management] database.” (Id.)

B. Release of Memo 2020-19

In response, on August 21, 2020, SBE officials released

guidance for “the procedure county boards must use to address

deficiencies in absentee ballots.” (Numbered Memo 2020-19 (“the

original Memo 2020-19” or “the original Memo”) (Doc. 148-3 at

2).) This guidance instructed county boards regarding multiple

topics. First, it instructed county election boards to “accept

[a] voter’s signature on the container-return envelope if it

appears to be made by the voter . . . [a]bsent clear evidence to

the contrary,” even if the signature is illegible. (Id.)

Next, the original Memo sorted ballot deficiencies into two

categories: curable and uncurable deficiencies. (Id. at 3.)

Under Memo 2020-19, a ballot could be cured via voter affidavit

alone if the voter failed to sign the certification or signed in

the wrong place. (Id.) A ballot error could not be cured in the

case of all other listed deficiencies, including a missing

signature, name, or address of the witness; an incorrectly

placed witness or assistant signature; or an unsealed or

re-sealed envelope. (Id.) Counties were required to notify

voters regarding any ballot deficiency that could be cured

within one day of the county identifying the defect. After a

voter was notified of the deficiency, the voter was required to

return a cure affidavit by Thursday, November 12. (Id. at 4.) In

the case of an incurable defect, a new ballot could be issued

only “if there [was] time to mail the voter a new ballot . . .

[to be] receive[d] by Election Day.” (Id. at 3.) If a voter who

submitted an uncurable ballot was unable to receive a new

absentee ballot in time, he or she would have the option to vote

in person on Election Day.

C. Communications Following August 21, 2020

Soon thereafter, on August 26, 2020, Plaintiffs sent the

SBE and Executive Defendants a letter expressing concern about

the efficacy of Memo 2020-19, claiming that the protections it

laid out “[did] not satisfy due process as required by the

Court’s [August] Order.” (Doc. 148-4 at 2.) In this letter,

Plaintiffs listed several Due Process concerns about the cure

process guidance. These concerns included: (1) the lack of a

timeframe for reviewing absentee ballots for deficiencies, (2)

“unclear procedures for voter notification” if a cure is

necessary, (3) the lack of a remote option for voters to

“contest the disapproval of their deficient ballot,” (4) a lack

of “any indication as to how the cure process will be . . .

monitored and enforced,” (5) the Memo’s failure to “clearly

prohibit counties from implementing a signature verification

process,” and (6) ambiguity around the acceptability of unique

electronic signatures. (Id. at 2-4.)3

After explaining these concerns, Plaintiffs noted that

since “counties will start mailing absentee ballots on

September 4, 2020 . . . Plaintiffs may find it necessary to file

3 Again, while Plaintiffs’ requests may be appropriate

policy considerations, these processes seem to contemplate a

cure for all cases, a remedy this court did not, and does not,

deem required by Due Process. See discussion supra at 4 n.1.

an affirmative motion to enforce the injunction should

Defendants fail to implement an adequate law or rule by

[September 4th].” (Id. at 4.) However, no motion was filed, and

nothing further was brought to the attention of this court prior

to September 4th.

D. Revision of Numbered Memo 2020-19

The State began issuing ballots on September 4, 2020,

marking the beginning of the election process. Over two weeks

later, on September 22, the SBE attempted to revise its original

guidance to address Plaintiffs’ remaining concerns. (Numbered

Memo 2020-19 (“the Revised Memo” or “Revised Memo 2020-19”)

(Doc. 143-1).) 153,664 absentee ballots were received by the SBE

between September 4 and September 22. Absentee Data, N.C. State

Bd. of Elections (Sept. 22, 2020). The SBE cited the August

Order as “consistent with” its revisions, (Notice of Filing

(Doc. 143) ¶ 1), which set forth a variety of new policies not

implemented in the original Memo 2020-19. (See Revised Memo

(Doc. 143-1).) The revised guidance extended the deadline for

absentee ballots to be received out to November 12, 2020. (Id.

at 4.) It also altered which ballot deficiencies fell into the

curable and uncurable categories: unlike Memo 2020-19, the

Revised Memo advised that ballots missing a witness or assistant

name or address, as well as ballots with a missing or misplaced

witness or assistant signature, could be cured via voter

certification. (Id. at 2.) This certification could be filed

through November 12, 2020, eight days after Election Day. (Id.

at 4). The Executive Defendants filed notice of this revised

guidance with the court on September 28, 2020. (Notice of Filing

(Doc. 143), only one day before the processing of absentee

ballots was scheduled to begin. ((Doc. 148) at 11.)

E. Consent Judgment in North Carolina Alliance for

Retired Americans v. North Carolina State Board of

Elections

On August 10, 2020, the North Carolina Alliance for Retired

Americans (“NC Alliance Intervenors”), who are Defendant-

Intervenors in two cases presently before this court; Moore v.

Circosta, No. 1:20CV911 (M.D.N.C. filed Oct. 5, 2020), and Wise

v. N.C. State Bd. of Elections, No. 1:20CV912 (M.D.N.C. filed

Oct. 5, 2020); filed an action against the SBE in North

Carolina’s Wake County Superior Court. (Moore v. Circosta, No.

1:20CV911 (Doc. 68-1) at 15.) They challenged, among other

voting rules, the witness requirement for mail-in absentee

ballots and rejection of mail-in absentee ballots that are

postmarked by Election Day but delivered to county boards more

than three days after the election. (Id.) On August 12, 2020,

Philip Berger and Timothy Moore, who are also Plaintiffs in

Moore, became parties to the state action as intervenor-

defendants on behalf of the North Carolina General Assembly.

(Id. at 16.)

On September 22, 2020, the same day the Revised Memo was

released, SBE and NC Alliance filed a Joint Motion for Entry of

a Consent Judgment with the superior court. (Id.) Philip Berger

and Timothy Moore were not aware of this “secretly-negotiated”

Consent Judgment, (Wise v. N.C. State Bd. of Elections, No.

1:20CV912 (Doc. 43) at 7), until the parties did not attend a

previously scheduled deposition, (1:20CV457 (Doc. 168) at 73.)

Among the terms of the Consent Judgment, SBE agreed to

extend the deadline for receipt of mail-in absentee ballots

mailed on or before Election Day to nine days after Election

Day, to implement the cure process established in the Revised

Memo 2020-19, and to establish separate mail-in absentee ballot

“drop off stations” at each early voting site and county board

of elections office which were to be staffed by county board

officials. (Doc. 68-1 at 16.)

In arguing that the North Carolina Superior Court should

approve and enter the Consent Judgment, SBE cited this court’s

August Order from Democracy. SBE argued that a cure procedure

for deficiencies related to the witness requirement were

necessary because “[w]itness requirements for absentee ballots

have been shown to be, broadly speaking, disfavored by the

courts,” (id. at 26), and that “[e]ven in North Carolina, a

federal court held that the witness requirement could not be

implemented as statutorily authorized without a mechanism for

voters to have adequate notice of and [an opportunity to] cure

materials [sic] defects that might keep their votes from being

counted.” (Id. at 27.) SBE argued that, “to comply with the

State Defendants’ understanding of the injunction entered by

Judge Osteen, the State Board directed county boards of

elections not to disapprove any ballots until a new cure

procedure that would comply with the injunction could be

implemented,” (id. at 30), and that ultimately, the cure

procedure introduced in the Revised Memo 2020-19 as part of the

consent judgment would comply with this injunction. (Id.)

On October 2, 2020, the Wake County Superior Court entered

the Stipulation and Consent Judgment. (Doc. 166-1.) Among its

recitals, which Defendant SBE drafted and submitted to the judge

as is customary in state court, (Moore v. Circosta, No.

1:20CV911 (Doc. 70) at 90-91), the Wake County Superior Court

noted this court’s preliminary injunction in Democracy, finding,

WHEREAS, on August 4, 2020, the United States District

Court for the Middle District of North Carolina

enjoined the State Board from the “disallowance or

rejection . . . of absentee ballots without due

process as to those ballots with a material error that

is subject to remediation.” Democracy N.C. v. N.C.

State Bd. of Elections, No. 1:20-cv-00457-WO-JLW

(M.D.N.C. Aug. 4, 2020) (Osteen, J.). ECF 124 at 187.

The injunction is to remain in force until the State

Board implements a cure process that 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.” Id.

(Id. at 19; (Doc. 166-1) at 5.) Additional facts will be

addressed in the analysis where necessary.

F. Current Requests for Relief

This court requested a status conference on Wednesday,

October 7, 2020. (Doc. 146.) Only after this point did

Plaintiffs file a motion with this court, (Doc. 147), requesting

enforcement of a preliminary injunction on the basis of the

August Order, claiming that even the Revised Memo failed to meet

Due Process requirements as outlined by the August Order. (Pls.’

Mem. of Law in Supp. of Mot. to Enforce Order Granting in Part

Prelim. Inj., or, in the Alternative, Mot. for Clarification,

and to Expedite Consideration of Same (“Pls.’ Br. on Mot. to

Enforce”) (Doc. 148) at 13.) As noted previously, the processing

of absentee ballots had already started on September 29, 2020.

(Id. at 11.) Both Legislative Defendants and Plaintiffs

subsequently filed motions for affirmative relief: Legislative

Defendants seek injunction of the Revised Memo 2020-19, (Doc.

154), while Plaintiffs seek injunction of both Memos and further

guidance from the court on proper election procedure, (Doc.

156). Only the Executive Defendants have argued, in their

Response to Plaintiffs’ Motion to Enforce Order (“Exec. Defs.’

Resp.”) (Doc. 151) at 2) that the Revised Memo 2020-19 is the

correct operative guidance, claiming it was necessary in order

to comply with this court’s August Order.

II. ANALYSIS

A. The Preliminary Injunction Order

Before turning to analysis of the pending motions, this

court will address an issue with the parties’ use of certain

language from the August Order.

In an effort to provide context for the August Order and to

perhaps avoid additional future litigation, this court provided

certain observations as to what might be required in relation to

voting processes during the COVID-19 pandemic in light of this

court’s order. (See August Order (Doc. 124) at 3-6.) After

careful review of the pleadings and attachments filed following

the issuance of that Order, it appears to this court that

language was either misunderstood or has been misconstrued. The

language has been cited in support of unreasonable demands,

inaction, and acts that appear to ignore the rule of law. This

court does not make policy decisions for legislative branches or

executive offices, nor were its observations intended to

substitute for the rule of law.

In light of this concern, the court has considered striking

those findings. This court, instead, notes for clarification

that those comments were not, and are not, intended to suggest

that the circumstances created by COVID-19 can or should be used

to disregard the rule of law or the Constitution. Nor were those

statements intended to suggest a source of authority for acts or

requests not otherwise permitted by the rule of law.

B. Sufficiency of the Original Memo 2020-19

Plaintiffs’ Motion for Affirmative Relief, (Pls.’ Mot. for

Affirmative Relief (Doc. 156)), asks this court to find that

both the original Memo 2020-19 and the Revised Memo 2020-19 are

insufficient to respond to this court’s August Order. (Id. at

16, 34.) Though the guidance contained in the original Memo

2020-19 may not be perfect, it sufficiently complied with this

court’s August Order. Even if the original Memo 2020-19 fell

short, reliance on this court’s order for further election rule

changes after September 4, 2020 – as in the Revised Memo 2020-19

– is not appropriate under the facts and circumstances of this

case.

1. Due Process

This court’s August Order “enjoined the rejection of

absentee ballots unless the voter is provided due process.”

(August Order (Doc. 124) at 3.) The August Order noted that

“[t]here are currently no procedures in place statewide that

would either notify a voter that their absentee ballot has a

material error nor allow such a voter to be heard in challenging

such a rejection.” (Id. at 157-58.) The injunction ordered that

the SBE was prohibited from “the disallowance or rejection . . .

of absentee ballots without Due Process as to those ballots with

a material error that is subject to remediation.” (Id. at 187.)

This court finds that the original Memo 2020-19, issued by

the SBE on August 21, 2020, (Doc. 148-3), sufficiently addressed

this court’s concerns regarding Due Process. The guidelines4 set

out by the original Memo 2020-19 sufficiently addressed errors

“subject to remediation,” (Doc. 124 at 187), also referred to as

curable defects.5 Memo 2020-19 laid out statewide procedures by

which absentee ballots with reasonable, minor deficiencies could

be cured by voters. If a voter failed to sign the certification,

4 Plaintiffs argue that the Numbered Memos do not qualify as

rules or laws “independently enforceable beyond the discretion

of the SBE,” and are therefore insufficient to satisfy this

court’s August Order. (Pls.’ Br. on Mot. to Enforce (Doc. 148)

at 14-15.) This court disagrees: the SBE was directly charged

with remedying the Due Process concerns identified in the

court’s August Order. The Numbered Memos served as binding

guidance which county boards were “required to follow.” (Exec.

Defs.’ Resp. (Doc. 151) at 9.) This is sufficient for the

purposes of this court’s August Order.

5 This court does not consider a missing witness signature a

mere curable defect. See discussion infra, Part II.B.1.

or signed in the wrong place, the ballot could be cured with an

affidavit from the voter. (Original Memo 2020-19 (Doc. 148-3) at

2.)

On the other hand, if a deficiency led to the ballot being

spoiled “because the missing information [came] from someone

other than the voter[,]” such as the absence of a witness

signature, then the county board was obligated to “reissue a

ballot along with a notice explaining the county board office’s

action.” (Id. at 3.) This allows voters to respond to ballot

rejections and requires prompt notification of voters if their

ballots contain uncurable errors.

Plaintiffs present several critiques of the SBE’s guidance

in both versions of Numbered Memo 2020-19. First, they note that

Memo 2020-19 does not “specify a timeline by which counties must

review absentee ballot applications for deficiencies.” (Pls.’

Br. on Mot. to Enforce (Doc. 148) at 18-19.) Second, Plaintiffs

emphasize that the original Memo 2020-19 does not go the extra

step of requiring counties to contact voters with ballot

deficiencies via phone number and email rather than via

traditional mail only.6 (Id. at 20-21.) Finally, Plaintiffs claim

that both versions of Memo 2020-19 fall short by failing to

provide voters with remote opportunities to attend county

canvasses and remedy material errors. (Id. at 24.) Though these

complaints might have some value, they do not undermine the

overall adequacy of Memo 2020-19 in addressing this court’s

original Due Process concerns. Due Process does not guarantee

that every attempted ballot is counted – rather, Due Process

ensures that an individual voter will receive notice and an

opportunity to be heard in certain circumstances. It does not,

and cannot, be used to displace the state’s election statutes or

delay the election.

Based on these criticisms, Plaintiffs urge this court to

adopt certain provisions within the Revised Memo in a piecemeal

manner. (Pls.’ Mot. for Affirmative Relief (Doc. 156) at 10-14).

Plaintiffs urge the court to “order the State Board of Elections

to [implement specific, listed reforms]” in the name of Due

6 Regardless of the merits of Plaintiffs’ grievance

regarding the shortcomings of mail-only notifications, the

original Memo 2020-19 still meets the bar set out in this

court’s August Order. Furthermore, as this concern was not

raised with this court prior to the start of the election, and

in light of Purcell v. Gonzalez, 549 U.S. 1 (2006), this court

finds Plaintiffs’ delay a serious and confounding issue that

would merit denial of additional injunctive relief for that

reason alone.

Process. (Id. at 34.) Despite Plaintiffs’ request, this court’s

role does not entail picking and choosing those electoral

reforms it views as wise from a policy perspective. This court

may only adjudicate whether the bar of Due Process has been met,

which this court finds it has under the original Memo 2020-19.

Though the original Memo may not perfect the absentee process,

it addresses this court’s Due Process concerns as expressed in

the August Order, particularly as to notice and an opportunity

to be heard prior to rejection. This court’s August Order, (Doc.

124), was never intended to create insurmountable hurdles for

the SBE’s rejection of an absentee ballot under any

circumstances. Even if the original Memo 2020-19 were

insufficient, the application of Revised Memo 2020-19 in its

stead cannot be justified on the basis of this court’s August

Order.

2. Delay in Seeking Injunctive Relief

Moreover, Plaintiffs have delayed too long in seeking

enforcement of the order and rejection of both versions of Memo

2020-19. This undermines Plaintiffs’ case for further

affirmative relief at this juncture. Some courts have found that

delay in seeking injunctive relief is a clear indicator of “an

absence of the kind of irreparable harm required to support a

preliminary injunction.” Citibank, N.A. v. Citytrust, 756 F.2d

273, 276 (2d Cir. 1985). The Fourth Circuit has taken a less

exacting approach, following the Ninth and Tenth Circuits in

weighing delay as a non-dispositive factor in the granting of

preliminary injunctive relief. See Candle Factory, Inc. v. Trade

Assocs. Grp., Ltd., 23 F. App’x 134, 138 n.2 (4th Cir. 2001)

(citing Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. &

Rehab. Servs., 31 F.3d 1536 (10th Cir. 1994); Lydo Enters., Inc.

v. City of Las Vegas, 745 F.2d 1211, 1213, 1213–14 (9th Cir.

1984).)

In different circumstances, the delay by Plaintiffs of

nearly six weeks - from the issuance of the original Memo

2020-19 on August 21 to the filing of this motion to enforce

order on September 30 – might not weigh as heavily in the

court’s analysis. Here, however, the extraordinary circumstances

at hand bring Purcell considerations into the delay analysis as

well. Purcell v. Gonzalez, 549 U.S. 1 (2006). Plaintiffs

acknowledged in August the need for any and all revisions to be

made prior to September 4, when ballots were released. (See

(Doc. 148-4) at 4 (“As counties will start mailing absentee

ballots on September 4, 2020 and thus begin receiving them

shortly thereafter, Plaintiffs may find it necessary to file an

affirmative motion to enforce the injunction should Defendants

fail to implement an adequate law or rule by this date.”).) No

further guidance was issued by the SBE by September 4. However,

Plaintiffs still failed to file any such motion with the court

until over 30 days after the issuance of the original Memo and

their August 26 letter to the SBE. (Doc. 147.) As to this delay,

additional facts further undermine any argument by Plaintiffs

that they acted diligently and promptly. As noted earlier, none

of the parties to this case notified this court or requested

relief following the issuance of the original August 21 Memo

2020-19. Instead, on September 28, 2020, the SBE filed its

Notice of Filing, (Doc. 143), alleging the Revised Memo 2020-19

was “consistent with the [court’s] Order.” (Id. at 1.)

Plaintiffs did not respond to the Notice in any fashion. On

September 30, 2020, this count entered its order stating that

Revised Memo 2020-19 was not consistent with the August Order.

(Doc. 145 at 3.) It was on that date, September 30, and after

this court’s order, that Plaintiffs filed a motion requesting

additional relief. (Doc. 147.) Plaintiffs’ motion requesting

additional relief was filed 24 days after the start of the

election, after absentee ballots had been received with material

defects, and the day before absentee ballots were subject to

processing.

Given the obligation of federal courts to avoid changing

election rules whenever possible under Purcell, see discussion

infra Part II.B.2, Plaintiffs’ decision to wait until after

September 4 to file their motion constituted substantial delay

that, in this instance, precludes the granting of additional

injunctive relief to Plaintiffs.

C. All Writs Act Relief

Legislative Defendants request that this court

“affirmatively enjoin the issuance and enforcement of the

[Revised Memo] under the All Writs Act,” (Doc. 155 at 22-23),

or, “at minimum . . . restrain the NCSBE from relying on this

Court’s [August Order] to issue the [Revised Memo 2020-19].”

(Doc. 150 at 6.) This court will grant Legislative Defendants’

motion in part: while Purcell counsels against enjoining the

entirety of the Revised Memo, this court finds the All Writs Act

(“AWA”) authorizes this court to enjoin the SBE’s effective

elimination of the witness requirement as a remedial action

under this court’s preliminary injunction order.

Though this court will not enjoin the entirety of the

Revised Memo, it will enjoin the witness signature cure process

created by the Revised Memo. The cure process provided for

witness signatures is inconsistent with this court’s August

Order, which found the state’s statutory witness requirement

constitutional. (August Order (Doc. 124) at 102.) This court

found that the witness requirement was constitutional while the

absence of Due Process procedures was unconstitutional. (Id.)

Using the court’s Due Process language to effectively override

the legislative witness requirement, after this court upheld it

– in the supposed name of Due Process - is an unacceptable

misuse of the remedy created by this court’s order. The State

Board’s mischaracterization of this court’s injunction in order

to obtain contradictory relief in another court frustrates and

circumvents this court’s August Order, (Doc. 124). Remedial

action under the AWA is necessary to prevent frustration and

misuse of this court’s preliminary injunction.

1. Legal Standard Under the All Writs Act

The All Writs Act provides that “[t]he Supreme Court and

all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law.” 28 U.S.C. § 1651(a). The Supreme Court has “repeatedly

recognized the power of a federal court to issue such commands

under the All Writs Act as may be necessary or appropriate to

effectuate and prevent the frustration of orders it has

previously issued[.]” United States v. New York Tel. Co., 434

U.S. 159, 172 (1977). However, as the All Writs Act is to be

used “sparingly and only in the most critical and exigent

circumstances,” Wis. Right to Life, Inc. v. Fed. Election

Comm’n, 542 U.S. 1305, 1306 (2004) (internal quotation marks and

citations omitted), it is often used when a court is seeking to

enforce its previous order in the face of blatant violations.

See, e.g., SAS Inst., Inc. v. World Programming Ltd., 952 F.3d

513, 521 (4th Cir. 2020), petition for cert. docketed (U.S.

Sept. 9, 2020) (No. 20-304) (applying the AWA where a party has

“frustrat[ed] . . . orders [the court] has previously issued”);

Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir.

2004) (finding that obtaining an AWA injunction requires “some

ongoing proceeding, or some past order or judgment, the

integrity of which is being threatened by someone else’s action

or behavior”); Phillips Beverage Co. v. Belvedere, S.A., 204

F.3d 805, 806 (8th Cir. 2000) (applying the AWA where a party

“attempted to make an end run around the district court’s

refusal to grant the interim relief [it] sought in a case over

which the district court continued to have jurisdiction by . . .

asking Customs to do what the district court would not”); In re

Application of U.S. for an Order Directing X to Provide Access

to Videotapes, No. 03-89, 2003 WL 22053105, at *3 (D. Md.

Aug. 22, 2003) (using the AWA in order to “prevent[] frustration

of this court’s previously issued . . . warrant”).

2. Frustration of this Court’s August Order

The State Board vehemently argues it had no intention of

frustrating this court’s August Order: according to the SBE, the

Revised Memo was issued – and the Consent Judgment agreed upon –

in a sequence of events unrelated to actual compliance with the

August Order. The Board argues that it believed the revisions

were consistent with, and not required by, this court’s August

Order. The State Board of Elections continued to maintain this

throughout oral argument before this court on October 7:

Again, I just wanted to be clear. The State Board was

not -- when it revised the memo in September, it was

not revising it because it believed those revisions

were necessary to comply with your order. It was

revising it because it believed that those revisions

were necessary to deal with what was actually

happening on the ground and because it believed that

those revisions could assist in settling protracted

litigation, avoiding protracted litigation.

(Doc. 168 at 87 (emphasis added).) The record, however,

explicitly disproves this fact. Exactly one week earlier, on

September 30, the SBE filed a state court brief supporting its

request for a Consent Judgment in the Alliance action. (Doc.

165-1.) Its representations in that brief stand in stark

contrast to its representations to this court. (Id. at 15.) In

its September 30 brief to the North Carolina Superior Court,

only one week prior to oral argument before this court, the SBE

directly cited this court’s August Order as the reason for its

“new cure procedure”:

As a result, and to ensure full compliance with

the injunction entered by Judge Osteen, the State

Board directed county boards of elections not to

disapprove any ballots until a new cure procedure that

would comply with the State Defendants’ understanding

[of] the injunction could be implemented. On

September 22, 2020, the State Board instituted the

cure procedure attached to the proposed consent

judgment. The State Board subsequently notified the

federal court of its cure mechanism process.

(Id.) (emphasis added). The SBE clearly informed the state court

that the revisions were needed “to ensure full compliance with

the injunction entered by Judge Osteen.” (Id.) Remarkably, the

SBE then claimed in this brief that it had “notified [this]

federal court of its cure mechanism process.” (Id.) No such

notification occurred until September 28, 2020. (Notice of

Filing (Doc. 143)), only one day before review of absentee

ballots was set to begin. (Pls.’ Br. on Mot. to Enforce (Doc.

148) at 11.) That notice alleged the Revised Memo was

“consistent with the [court’s] Order.” (Notice of Filing (Doc.

143) at 1.) On September 30, 2020, this court entered an order,

(Doc. 145), in response to the SBE’s notice, specifically

finding that “this court’s order cannot in any way be construed

to permit a missing witness signature to be cured by ‘sending

the voter a certification,’ as indicated by [Revised] Memo

2020-19.” (Id. at 4.)

It was only after this court issued that order that the SBE

modified its argument by arguing before the North Carolina

Superior Court - contrary to its brief - that the cure process

in place was not required by the August Order, but instead was

the result of the SBE’s authority under state law. (N.C. Super.

Ct. Hr’g Tr. (Doc. 167-1) at 26.)

Of course, notwithstanding that representation, the SBE in

its proposed state court order still included this court’s

August Order in the recitals as requiring a cure mechanism.

(Doc. 166-1 at 5.) That recital of this court’s order is the

only authority directly cited as authority to implement the cure

mechanism. This court finds the SBE did not, and was not,

relying upon N.C. Gen. Stat. § 163-22.2 or § 163-27.1 as

authority for a cure process. Instead, the SBE relied upon this

court’s order and injunction requiring Due Process, (Doc. 124),

to support a “cure” for an absentee ballot which eliminated the

witness requirement. Similarly, during oral argument before the

state court, the SBE made several additional references to this

court’s August Order as requiring some “cure process” – which,

in light of the brief, further mischaracterizes the August Order

as a directive to “cure” the witness requirement. (See N.C.

Super. Ct. Hr’g Tr. (Doc. 167-1) at 24-26.)

As if these misrepresentations were not enough, in its

brief to the state court, the SBE directly stated that this

court’s August Order held the opposite of what it really held:

Second, the court enjoined defendants “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,” and directed the

adoption of procedures “which provide[] 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.” Id. at *182.

These changes were necessary, the court rules, because

North Carolina’s witness requirement as statutorily

authorized was likely unconstitutional.

(Doc. 165-1 at 14 (emphasis added).) This representation was

patently not true: this court found that Due Process measures

were needed, but the North Carolina witness requirement was in

fact constitutional. (August Order (Doc. 124) at 102

(“Plaintiffs have not demonstrated a likelihood of success on

the merits of their constitutional challenge to the One-Witness

Requirement under the Anderson-Burdick balancing test.”).) This

court finds the SBE’s representations to the North Carolina

Superior Court explaining the contents and effect of the August

Order, (id.), are at best inaccurate, and were used to support

the SBE’s argument to obtain approval of the Consent Judgment

and modify the witness requirement. This court’s Due Process

remedy was used to modify the witness requirement that this

court upheld.

In addition to denying its representations about this

court’s August Order, the SBE also claims it did not frustrate

the August Order because its revisions do not actually eliminate

the witness requirement. Yet Revised Memo 2020-19 clearly

subverts this court’s findings in its August Order by

effectively eliminating the contemporaneous witness requirement.

(Revised Memo (Doc. 143-1) at 2.) According to Ms. Karen Brinson

Bell, Executive Director of the SBE, the Revised Memo allowed

“an envelope with a missing witness signature [to] be cured by

the voter attesting that he or she voted their ballot and is the

voter.” (Declaration of Karen Brinson Bell (“Bell Decl.”) (Doc.

151-3) ¶ 9.) Ms. Bell’s declaration contradicts her testimony

before this court, in which she stated unequivocally that a

ballot with a missing witness signature could not be cured, but

instead had to be spoiled:

You can’t have – there’s certain things that cannot be

cured. . . . If the board determines that there was no

witness signature, then you can’t say fix this

envelope by bringing in a witness because that would

not mean that the witness actually witnessed them

voting. . . . We could contact them and spoil that

particular ballot.

(Evidentiary Hr’g Tr. vol. 2 (Doc. 113) at 121-22.) This court’s

injunctive order, which specifically applied to a “material

error subject to remediation,” (August Order (Doc. 124) at 187),

was never intended to allow a ballot without a witness to be

cured. This court upheld the witness requirement – to claim a

cure which eliminates that witness requirement is “consistent

with” this court’s order is a gross mischaracterization of the

relief granted. Ms. Bell attests that the change in the Revised

Memo was in line with “the purpose of the witness requirement.”

(Bell Decl. (Doc. 151-3) ¶ 9 (emphasis added).) However parallel

with the requirement’s purpose it may have been, this change

explicitly eliminated the contemporaneous witness requirement

duly enacted by the legislature and found constitutional by this

court’s order. (Id.)

Legislative Defendants attempt to characterize this change

as a mere modification of the witness requirement, claiming the

“county board official [who contacted the voter after

discovering the deficiency] would act as the voter’s witness.”

(Exec. Defs.’ Resp. (Doc. 151) at 6.) However, even Executive

Defendants acknowledge this so-called “witnessing” is not

contemporaneous with the marking of the ballot. (Id.) Under the

2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(a), a witness

absentee ballot must be “marked in the presence of one qualified

witness.” This clear language dictates that the witness must be

(1) physically present with the voter, and (2) present at the

time the ballot is marked by the voter. The Revised Memo’s run-

around of the witness requirement clearly falls short of the

valid statutory requirement previously upheld by this court. As

described supra in Part II.B.2, the SBE advanced different

arguments before this court and the North Carolina Superior

Court for the witness requirement.

Regardless of its purpose, the cure affidavit proposed by

the Revised Memo and the Consent Judgment contains a nearly

meaningless certification by the voter that completely

eliminates the witness requirement. The certification requires

the voter to certify that “I voted and returned my absentee

ballot . . . .” (Revised Memo Doc. 143-1 at 6.) In addition to

falling short of the statutory witness requirement, this process

eliminates the witness and assistance certifications required by

North Carolina Session Law 2020-17. 2020 N.C. Sess. Laws 2020-17

(H.B. 1169). This certification does not verify that the ballot

presented to a board of elections is the ballot executed by the

voter. Nor does the cure certification explain what “voted”

means, thereby allowing each individual voter to determine that

meaning and the circumstances under which a ballot may be

executed. Under the vague “I voted” language used in the

affidavit, a voter who completed his or her ballot with

assistance from an unauthorized individual; a voter who does not

qualify for voting assistance; or a voter who simply delegated

the responsibility for completing their ballot to another person

could truthfully sign this affidavit, although all three acts

are prohibited under state law. See N.C. Gen. Stat. § 163-

226.3(a)(1).

A state must ensure that there is “no preferred class of

voters but equality among those who meet the basic

qualifications.” Gray v. Sanders, 372 U.S. 368, 380 (1963).

Because the affidavit does not serve as an adequate means to

ensure that voters did not engage in unauthorized ballot casting

procedures, inevitably, not all voters will be held to the same

standards for casting their ballot. This court, for the reasons

more fully explained in its orders in Wise v. N. Carolina Bd. of

Elections, No. 1:20CV912, and Moore v. Circosta, No. 1:20CV911,

issued contemporaneously, points out that the current ‘cure’

process allows certain voters to certify a ballot according to

their own individual definitions of ‘to vote.’ This court’s

concerns notwithstanding, however, this court will decline to

enjoin the use of a cure affidavit beyond its application as an

alternative for compliance with the witness and assistance

requirements.

Neither the Revised Memo nor the cure affidavit may be

justified by pointing to this court’s order expressly upholding

the witness requirement. All Writs Act relief is designed for

scenarios in which a court’s order is directly frustrated –

here, the SBE has not only frustrated this court’s order, but

has also claimed in this court that it never misrepresented the

August Order’s requirements.

The SBE’s Revised Memo is not only misleading to this

court; it also creates different classes of voters based upon

the voting requirements – all under the guise of Due Process.

The voting process began on September 4, 2020. Ballots for

absentee mail voting were mailed on that date, along with

instructions specifically explaining the witness requirement. As

explained previously, more than 153,000 voters filled out

ballots under those instructions. Absentee Data, N.C. State Bd.

of Elections (Sept. 22, 2020).

Now, under the Revised Memo, voters will continue to

receive those instructions and presumably comply. However, those

voters who seek assistance from voting organizations or

individuals familiar with the Revised Memo may be correctly

advised that any ballot missing a witness signature, that is

proper in all other respects, can be accepted by the SBE via a

cure affidavit. Using a Due Process cure procedure to allow some

voters to ignore the witness requirement, or have their votes

counted without witness signatures, all under a claim of

complying with this court’s order, is a flagrant misuse of this

court’s injunctive relief. All Writs Act relief is thereby

justified in this instance to narrowly enjoin the witness

requirement cure procedure implemented in the Revised Memo

2020-19.

3. Application of Purcell

The Supreme Court has made clear 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., 589

U.S. ____, ____, 140 S. Ct. 1205, 1207 (2020) (per curiam).

Purcell states that a court order affecting election rules will

progressively increase the risk of “voter confusion” as “an

election draws closer.” Purcell, 549 U.S. at 4-5; see also Texas

All. for Retired Americans v. Hughs, ____ F.3d ____, 2020 WL

5816887, at *2 (5th Cir. Sept. 30, 2020) (“The principle . . .

is clear: court changes of election laws close in time to the

election are strongly disfavored.”)7. Due to Purcell, this court

will deny Plaintiffs’ motion for affirmative relief and will

refrain from enjoining the entirety of the Revised Memo.

While the original Memo 2020-19 before the start of the

election was necessary to comply with this court’s order,

further revision of that Memo after ballots were already being

distributed and executed is inconsistent with the principle set

forth in Purcell. Though Purcell applies only to federal

judicial intervention, it is worth highlighting here that the

SBE claimed to be changing election rules after September 4th

expressly because a federal court required it, thereby using

this court’s order to accomplish what Purcell might otherwise

prohibit. Plaintiffs argue that Purcell requires courts to

“weigh the risk of voter confusion” rather than per se rejecting

any “late-breaking” changes in election rules. (Pls.’ Mot. for

Affirmative Relief (Doc. 156) at 25.) But as the Supreme Court’s

7 As Executive Defendants point out, (Exec. Defs.’ Resp.

(Doc. 151) at 1-2), the Ninth Circuit has read Purcell less

stringently, holding that “courts must assess the particular

circumstances of each case in light of the concerns expressed by

the Purcell court to determine whether an injunction is proper.”

Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 368 (9th

Cir. 2016). Even under that test, however, this case runs

parallel to Purcell. Most importantly, unlike in Feldman, this

case does involve “chang[ing] the electoral process.” Id.

Furthermore, there was “delay in bringing [the] action,” id. at

369, as no relief was sought until after the election began.

restoration of the South Carolina witness requirement last week

illustrates, a heavy thumb on the scale weighs against this

court changing voting regulations unless critically necessary.

Andino v. Middleton, ____ S. Ct. ____, 2020 WL 5887393, at *1

(Oct. 5, 2020) (Kavanaugh, J., concurring).

Plaintiffs themselves note that “[t]he delay in revising

Numbered Memo 2020-19 has caused confusion and delay by county

boards of election in providing voters with due process

regarding material errors subject to remediation with their

ballots.” (Pls.’ Br. on Mot. to Enforce (Doc. 148) at 11.)

Thousands of voters cast ballots with the understanding that the

guidelines in the original Memo 2020-19 applied.8 Those voters

were required to submit a ballot and return envelope with a

witness. 153,664 absentee ballots were received by the SBE prior

to the implementation of the Revised Memo – not counting those

that were filled out and mailed prior to the revision but had

not yet been received by the SBE. Absentee Data, N.C. State Bd.

of Elections (Sept. 22, 2020). To date, over 492,825 absentee

ballots have been cast, while 1,321,515 absentee ballots have

8 This court recognizes that an unidentified number of

voters also filled out and mailed ballots in the eight days

between the release of the Revised Memo and the SBE’s direction

for all action on absentee ballots to cease. (Exec. Defs.’ Resp.

(Doc. 151) at 8.)

been requested. North Carolina State Board of Elections, Voting

Underway in North Carolina, https://www.ncsbe.gov/ (last visited

Oct. 13, 2020).

Plaintiffs argue that Purcell does not apply here because

“there is no election law change implicated.” (Pls.’ Mot. for

Affirmative Relief (Doc. 156) at 23.) This is a misunderstanding

of Purcell. This year alone, the Purcell doctrine of

noninterference has been invoked by federal courts in cases

involving witness requirements and cure provisions during

COVID-19, Clark v. Edwards, Civil Action No. 20-283-SDD-RLB,

Civil Action No. 20-283-SDD-RLB, 2020 WL 3415376, at *1-2 (M.D.

La. June 22, 2020); the implementation of an all-mail election

plan developed by county election officials, Paher v. Cegavske,

Case No. 3:20-cv-00243-MMD-WGC, 2020 WL 2748301, at *1, *6 (D.

Nev. May 27, 2020); and the use of college IDs for voting,

Common Cause v. Thomsen, No. 19-cv-323-JDP, 2020 WL 5665475, at

*1 (W.D. Wis. Sept. 23, 2020) – just to name a few. Election

rule changes which, by Plaintiffs’ contention, (Pls.’ Mot. for

Affirmative Relief (Doc. 156) at 3), affect North Carolina

voters’ Due Process rights, certainly fall within the intended

scope of Purcell. Thus, this court finds that the SBE was

unjustified in relying upon this court’s August Order as an

authority for the Revised Memo. This court’s order is an

inappropriate basis for last-minute election rule changes,

particularly changes which contradict the order itself.

Moreover, in the same vein, and as discussed supra at Part

II.B.1, this court will reject Plaintiffs’ motion urging the

court to “order the State Board of Elections” to implement

certain reforms. (Pls.’ Mot. for Affirmative Relief (Doc. 156)

at 34.)

Finally, even if this court were to find Purcell permits an

award of additional relief to Plaintiffs, this court would

decline to grant that relief at this time. First, this court

specifically directed Plaintiffs to explain what they contend

constitutes a “material error subject to remediation.” (Doc. 152

at 7.) Instead of responding, they attempted to shift the burden

elsewhere, (Pls.’ Mot. for Affirmative Relief (Doc. 156) at 17-

19), and offered a litany of their preferred processes, (id. at

10-13). This failure to explain why the requested relief is

required by Due Process mandates denial of the motion.

Second, none of the Exhibits filed by Plaintiffs allege

facts to explain harm caused to any Plaintiff by the original

Memo 2020-19. (See Docs. 148-1 thru 148-15.) Plaintiffs

submitted the declaration of Talia Ray, a paralegal for

Plaintiffs’ counsel, describing the confusion of various county

boards of election. (Doc. 148-16 at 3-7.) However, their

confusion demonstrates the problems caused by Plaintiffs’ delay

in seeking further relief from this court in a timely fashion,

as well as the SBE’s late change to the original Memo 2020-19.

The Purcell principle applies to Legislative Defendants’

request: federal courts are to avoid active interference in

election rules too close to a state election. As Plaintiffs

point out, Purcell suggests that this court ought not directly

order the SBE to follow any particular set of election rules.

(Pls.’ Mot. for Affirmative Relief (Doc. 156) at 26-27.)9

Enjoining only the SBE’s removal of the witness requirement,

rather than the entirety of the Revised Memo, allows the court

to follow Purcell and refrain from unnecessary interference with

election procedures, while still requiring compliance with its

prior injunction. Therefore, this court will, without prejudice,

deny Legislative Defendants’ request that it “order the NCSBE to

9 The injunction this court has chosen remains within the

scope of this court’s August Order, which specifically upheld

the witness requirement while prescribing the need for further

Due Process. This court finds an injunction pursuant to the AWA

is necessary on these facts. Further injunctive relief would not

be appropriate in this case under the AWA because the Revised

Memo, other than the elimination of the witness requirement,

does not implicate any of the affirmative relief ordered in the

August Order. Those issues – including the ballot receipt

deadline, drop-box cure procedure, and the postmark requirement

changes – will be addressed directly in the Moore and Wise

cases.

return to the guidance contained in its August Memo.” (Leg.

Defs.’ Resp. (Doc. 150) at 10.)

III. CONCLUSION

For the foregoing reasons, this court finds Defendant-

Intervenors’ motion for All Writs Act relief should be granted

in part and denied in part. This court will enjoin the SBE from

implementing a Due Process or ‘cure procedure’ as described in

Revised Memo 2020-19 which authorizes acceptance of an absentee

ballot without a witness or assistant signature, (Doc. 143-1 at

2.) This injunction prohibits use or implementation of the

process allowing “witness or assistant did not sign” to qualify

under “Deficiencies Curable with a Certification,” (id.), which

would otherwise approve an absentee ballot which has not been

executed in accordance with H.B. 1169. Plaintiffs’ motion for

Affirmative Relief should be denied.

In the absence of any binding precedent of the Supreme

Court or the Fourth Circuit Court of Appeals, it remains

possible that an appeal is ultimately taken from this court’s

finding that Due Process applies to the rejection of absentee

ballots as explained in this court’s August Order. (See Doc. 124

at 150-59.) Upon appeal, a higher court may disagree with this

court’s conclusions regarding Due Process in the form in which

they are applied here. See, e.g., New Georgia Project v.

Raffensperger, ____ F.3d ____, 2020 WL 5877588, at *3 (11th Cir.

Oct. 2, 2020) (“The generalized due process argument that the

plaintiffs argued for and the district court applied would

stretch concepts of due process to their breaking point.”).

Recognition of that possibility makes it even more disturbing

that the SBE would put forth this court’s August Order as legal

authority upon which a North Carolina court should act to

approve eliminating or modifying the state statutory witness

requirement, as well as related requirements for execution of an

absentee ballot. Even if the relief ordered by this court is

found at some future time by a higher court to be inappropriate,

this court would still issue the injunction chosen here. Under

no circumstances was the Due Process remedy ordered by this

court intended to eliminate the state’s statutory requirements

for marking a ballot when voting absentee, and the August Order

should not have been used as authority for such action.

IT IS THEREFORE ORDERED that Defendant-Intervenors’ Motion

for All Writs Act Relief, (Doc. 154), is GRANTED IN PART AND

DENIED IN PART. The motion is GRANTED with respect to the

witness requirement cure procedure implemented in Revised Memo

2020-19; the motion is DENIED WITHOUT PREJUDICE as to

consideration of relief also requested in 1:20CV911 and

1:20CV912.

IT IS FURTHER ORDERED that the North Carolina State Board

of Elections is hereby ENJOINED and PROHIBITED from implementing

a Due Process or ‘cure procedure’ as described in Revised Memo

2020-19 which authorizes acceptance of an absentee ballot

without a witness or assistant signature, (Doc. 143-1 at 6.)

This injunction prohibits use or implementation of the process

allowing “witness or assistant did not sign” to qualify under

“Deficiencies Curable with a Certification,” (Doc. 147 at 2-4),

which would otherwise approve an absentee ballot which has not

been executed in accordance with H.B. 1169. This injunction does

not extend to other minor, curable errors subject to remediation

such as a witness signature written on the wrong line or an

incomplete address.

IT IS FURTHER ORDERED that Plaintiffs’ Motion for

Affirmative Relief, (Doc. 156), is DENIED.

This the 14th day of October, 2020.

Ls Winn L. abun,

Hi Oi sane Oho Mt

-Al-