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

Defendants Philip E. Berger and Timothy K. Moore

(“Legislative Defendants”) have filed two related motions. The

first motion requests leave to take depositions prior to a

hearing on Plaintiffs’ motion for preliminary injunction. (Doc.

49.) In the second motion, Legislative Defendants move to strike

declarations filed with Plaintiffs’ reply brief to their amended

motion for preliminary injunction or, alternatively, to be

granted leave to depose the declarants or for leave to file a

surreply. (Doc. 77.)

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

Democracy North Carolina and the League of Women Voters of

North Carolina (the “Organizational Plaintiffs”) are alleged to

be nonpartisan organizations “dedicated to increasing voter

access and participation” in the election process. (Second Am.

Complaint (“2nd Am. Compl.”) (Doc. 30) ¶¶ 14–15.) The individual

Plaintiffs are nearly all identified as registered voters who

intend to vote in the November 2020 election. (Id. ¶¶ 16–23.)

Each of the individual Plaintiffs who plan on voting are subject

to health issues which either directly affect their ability to

vote or which are alleged to place them at high risk from

COVID-19 if required to exercise their right to vote under the

current election process. (See id. ¶¶ 16–22.)

Plaintiffs seek a preliminary injunction prohibiting

Defendants from “administering and enforcing for the November 3,

2020, general election” the following statutes:

i. N.C. Gen. Stat. §§ 163-82.6(d) and 163-82.20(g),

(h), imposing 25-day voter registration

deadlines;

ii. N.C. Gen. Stat. § 163-230.2(a), requiring

requests for absentee ballots be made by a form

created by the State Board of Elections;

iii. N.C. Gen. Stat. § 163-230.2(a)(4), (f), to the

extent that it limits the proof of residency

documents that voters must submit with their

absentee ballot request forms to only a North

Carolina driver’s license number, special

identification card number, or the last four

digits of his or her Social Security number, and

instead allow election officials to accept any

proof of residency document acceptable under the

Help America Vote Act (HAVA);

iv. N.C. Gen. Stat. §§ 163-226.3(a)(4),

163-226.3(a)(5), 163-226.3(a)(6), 163-230.2(e)(4),

163-231(a), and 163-231(b)(1), imposing

restrictions on assistance for absentee ballot

request return, absentee ballot marking and

completion, and absentee ballot submission;

v. N.C. Gen. Stat. § 163-231(a) as amended by HB

1169, Session Law 2020-17, An Act to Make Various

Changes to the Laws Related to Elections and To

Appropriate Funds to the State Board of Elections

in Response to the Coronavirus Pandemic, imposing

the witness certification requirement;

vi. N.C. Gen. Stat. § 163-227.6(c), requiring uniform

hours in precincts; and

vii. N.C. Gen. Stat. § 163-42(b) as amended by HB

1169, requiring poll workers to come from the

county in which they serve.

(Pls.’ Amended Mot. for Preliminary Injunction (“Pls.’ Am.

Mot.”) (Doc. 31) at 4-6.)1 Plaintiffs also request mandatory

injunctive relief requiring extension of the voter registration

deadline, expansion of online voter registration, contactless

1 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.

drop boxes, and telephone absentee ballot requests, among

others. (Id. at 6-8.)

Additional facts will be addressed as necessary in the

analysis of the evidence.

B. Procedural History

Plaintiffs filed their original complaint on May 22, 2020,

challenging various election laws in light of the issues caused

by COVID-19. (Doc. 1.) On June 5, 2020, Plaintiffs filed an

Amended Complaint, (Doc. 8), and a motion for preliminary

injunction, (Doc. 9), accompanied by a brief and declaration in

support of that motion, (Docs. 10, 11, 12). The original

defendants named in the complaints are all state executive

organizations and officials (“Executive Defendants”), who were

served with process and entered an appearance through counsel.

(Docs. 6, 13, 14, 91.) Thereafter, the Legislative Defendants

moved to intervene, (Doc. 16), and, by orders entered June 12

and June 15, 2020, that motion was allowed. (Text Order

06/12/2020; Order (Doc. 26).)

On June 18, 2020, Plaintiffs filed a Second Amended

Complaint, (Doc. 30), and an Amended Motion for Preliminary

Injunction, (Pls.’ Am. Mot. (Doc. 31)). Plaintiffs did not file

a new brief or new declarations, instead choosing to rest on the

supporting brief and declarations, (Docs. 10, 11, 12), filed on

June 5, 2020. (See Pls.’ Am. Mot. (Doc. 31) at 8.)

Plaintiffs requested expedited briefing and consideration

of the motion. (See, e.g., Doc. 9 at 7.) In accordance with that

request, the parties submitted a joint status report and

briefing schedule, requesting a hearing on the preliminary

injunction on July 2, 7, or 8. (Doc. 18.)

After the parties filed extensive briefs in response to the

motions for preliminary injunction, (Docs. 51, 58, 74), this

court held a hearing on July 1, 2020, to set a hearing date. At

that hearing, the parties tentatively agreed to a hearing during

which only oral argument would be presented. (Minute Entry

07/01/2020). That agreement appeared to moot Legislative

Defendants’ motion for leave to take depositions, (Doc. 49).

However, on July 2, 2020, Plaintiffs filed a number of new

declarations in support of their reply. (See Doc. 73.) On

Monday, July 6, Legislative Defendants filed the motion to

strike those declarations or, in the alternative, to take

discovery or file a surreply. (Doc. 77.) It does not appear

Legislative Defendants’ original request for discovery, (Doc.

49), is moot as was originally believed on July 1.

Plaintiffs, on multiple occasions, have argued that these

motions filed by Legislative Defendants are dilatory tactics.

(See Doc. 61 at 5 (“[T]he Intervenors’ belated discover[y]

request would almost certainly delay the preliminary injunction

hearing.”); Plaintiffs’ Opp’n to Motion to Strike (“Pls.’ Strike

Resp.”) (Doc. 80) at 19 (“Such measures are not only unnecessary

and unwarranted—they appear designed entirely to cause delay.”),

and 21 (The “motion to strike appears purely dilatory.”).) This

court has carefully reviewed Plaintiffs’ arguments and finds

they are without merit. Legislative Defendants have raised

substantive issues of significant concern to the court and those

issues do have merit as will be explained herein.

This court finds the motions are neither unjustifiably

filed nor unwarranted, nor do these motions reflect dilatory

intent on the part of Legislative Defendants. The original

Complaint may have been filed on May 22, 2020, (Doc. 1), but the

motion for preliminary injunction was not filed until June 5,

2020, (Doc. 9). Plaintiffs also filed the amended motion for

preliminary injunction and a second amended complaint on

June 18, 2020, (Docs. 30, 31), such that the issues Plaintiffs

raise have only been justiciable for a period of less than three

weeks. Briefing on the motion for preliminary injunction, based

upon a schedule agreed-to by the parties, concluded on July 3,

2020.

II. ANALYSIS

The court will first address Legislative Defendants’ Motion

for Leave to Take Depositions in Advance of the Preliminary

Injunction Hearing, (Doc. 49), which the court construes as a

motion for prehearing discovery (“Leg. Defs.’ Discovery Mot.”)

(Doc. 49), and will address Legislative Defendants’ Motion to

Strike, (“Leg. Defs.’ Mot. to Strike”) (Doc. 77)).

A. Legislative Defendants’ Motion for Prehearing

Discovery

Plaintiffs responded to the Legislative Defendant’s motion

requesting leave to take discovery. (Doc. 61.) In that response,

Plaintiffs argue that LR 65.1(b) anticipates a preliminary

injunction will be decided upon the papers and does not mention

discovery. (Id. at 2-3.) Plaintiffs further argue a preliminary

injunction should not require preparation for trial, (id. at

3-4), and that the motion was made late by parties allowed

permissive intervention, (id. at 4-5). These arguments are not

persuasive.

LR 65.1, upon which Plaintiffs rely to suggest discovery

should not be permitted, is not persuasive because Plaintiffs

rely upon a narrow interpretation of the rule. The rule does

not, nor is it intended to, limit whether discovery and/or an

evidentiary hearing are necessary; that matter is left to the

court. LR 65.1(b) provides in full:

(b) Hearing. A motion seeking a preliminary

injunction will be considered and determined on the

official court file including affidavits, briefs and

other documents filed in support thereof without oral

argument or testimony unless otherwise ordered by the

Court. A request for leave to present oral argument or

testimony in support of or in opposition to such

motion must be included in the motion or response.

LR 65.1(b). The rule “govern[s] practice in the District Court

for the Middle District of North Carolina consistent with the

Federal Rules of Civil Procedure.” LR 1.1. LR 65.1 therefore

must be read consistently with Fed. R. Civ. P. 65. Fed. R. Civ.

P. 65(a)(2) provides:

Before or after beginning the hearing on a motion for

a preliminary injunction, the court may advance the

trial on the merits and consolidate it with the

hearing. Even when consolidation is not ordered,

evidence that is received on the motion and that would

be admissible at trial becomes part of the trial

record and need not be repeated at trial. But the

court must preserve any party’s right to a jury trial.

Fed. R. Civ. P. 65(a)(2). This court does not find LR 65.1 or

Fed. R. Civ. P. 65 provides a substantive reason to reject

Legislative Defendants’ request for discovery.

Fed. R. Civ. P. 43(c) states that when a court takes evidence on

a motion, the court may hear the matter on affidavits or may

hear it wholly or partly on oral testimony or on depositions.

When read together, LR 65.1, Fed. R. Civ. P. 65 and 43 all

permit a preliminary injunction hearing to proceed to a ruling

on the merits by consideration of the official court file, on

oral testimony or depositions, or by advancing to trial on the

merits and consolidating it with the preliminary injunction

hearing. Legislative Defendants’ request for discovery is

consistent with, and supported by, the processes available to

resolve a motion for preliminary injunction.

Nor do Plaintiffs’ alternative arguments suggest

Legislative Defendants’ request for discovery should be rejected

on other procedural grounds. Legislative Defendants are parties

to this case and entitled to make a reasonable request for an

evidentiary hearing and related discovery. The fact that they

were permitted to intervene does not dictate otherwise.

Furthermore, Legislative Defendants’ motion was not made late,

it was timely; it was made the day before their response was due

and filed, see LR 65.1, and was made at a time when it appears

none of the parties had resolved the issue of whether an

evidentiary hearing was necessary, (see e.g., Doc. 18 at 2-3).

Furthermore, Legislative Defendants make a compelling

argument in support of their request for discovery.

Specifically, Legislative Defendants argue:

allowing the requested depositions to proceed will

help ensure that the Court is deciding Plaintiffs’

motion for a preliminary injunction . . . on a full

and complete record that has been subjected to the

adversarial process and in which Legislative

Defendants have had a fair opportunity to rebut the

case being mounted against the election laws the

General Assembly has passed. “Any time a State is

enjoined by a court from effectuating statutes enacted

by representatives of its people, it suffers a form of

irreparable injury.” Maryland v. King, 567 U.S. 1301

(2012) (Roberts, C.J. in chambers) (cleaned up).

Before the Court considers whether to enjoin any of

the statutes enacted by the General Assembly, it

should be sure that it has before it as complete a

record as possible as to the impact of and necessity

for the requested injunctive relief — not just the

facts and opinions that Plaintiffs have chosen to

selectively offer.

(Leg. Defs.’ Discovery Mot. (Doc. 49) at 4.) Plaintiffs have not

disputed this argument by Legislative Defendants.

However, even though this court finds that argument

compelling, the argument does not fully address the standard

this court should apply to a discovery request prior to a

hearing on the preliminary injunction. A district court in South

Carolina has persuasively described the standard as follow:

According to the Federal Rules of Civil

Procedure, “[a] party may not seek discovery from any

source before the parties have conferred as required

by Rule 26(f), except . . . when authorized by these

rules, by stipulation, or by court order.” Fed. R.

Civ. P. 26(d)(1). The Court has discretion when

deciding matters related to the timing and scope of

discovery. See Fed. R. Civ. P. 26(b) & (d). When

presented with a motion to commence discovery prior to

the Rule 26(f) conference, courts generally apply a

reasonableness or good-cause standard, taking into

account the totality of the circumstances in which the

motion is presented. See Dimension Data N. Am., Inc.

v. NetStar–1, Inc., 226 F.R.D. 528, 531 (E.D.N.C.

2005); 8A Charles Alan Wright, Arthur R. Miller &

Richard L. Marcus, Federal Practice and Procedure

§ 2046.1 (3d ed. 2010). Factors considered under the

reasonableness test include: “(1) whether a

preliminary injunction is pending; (2) the breadth of

the discovery requests; (3) the purpose for requesting

the expedited discovery; (4) the burden on the

defendants to comply with the requests; and (5) how

far in advance of typical discovery process the

request was made.” Disability Rights Council of

Greater Washington v. Washington Metro. Area Transit

Auth., 234 F.R.D. 4, 6 (D.D.C. 2006).

JTH Tax, Inc. v. M & M Income Tax Serv., Inc., C/A No. 6:13-CV-

00265-GRA, 2013 WL 460316, at *2 (D.S.C. Feb. 6, 2013).

With respect to the factors described in JTH Tax, there is

no dispute that a preliminary injunction is pending, nor is

there any dispute that the request is made in advance of the

typical discovery process contemplated by Fed. R. Civ. P. 26.

Before turning to the remaining factors, this court will turn to

Legislative Defendants’ motion to strike the declarations filed

in support of Plaintiffs’ reply brief (the “Reply” (Doc. 73)).

B. Legislative Defendants’ Motion to Strike Declarations

Filed in Support of the Reply

On July 2, Plaintiffs’ filed nine declarations in support

of their Reply. (Doc. 73.) Those declarations included seven

declarations supplementing original declarations filed in

support of the motion for preliminary injunction, (Docs. 11,

12), in addition to two new declarations. (See Doc. 73.) In

response to those declarations, Legislative Defendants filed a

motion to strike the declarations or, alternatively, for

discovery and/or the opportunity to file a surreply. (Doc. 77.)

Fed. R. Civ. P. 6 requires that “[a]ny affidavit supporting

a motion must be served with the motion.” Fed. R. Civ. P.

6(c)(2). “[A]ny opposing affidavit must be served at least 7

days before the hearing, unless the court permits otherwise.”

Id. The rule does not, however, address, or appear to

contemplate, the filing of reply declarations. Therefore,

Rule 6(c)(2) “does not preclude affidavits supporting

a reply brief when they respond to evidence supporting

an opposition brief.” Robinson v. Empire Equity Grp.,

Inc., No. WDQ-09-1603, 2009 WL 4018560, at *2 & n.14

(D. Md. Nov. 18, 2009).

In other words, affidavits may accompany a reply

brief if they support the reply rather than the

original motion. Reply affidavits should not present

new issues to which the opposing party will not have

an opportunity to respond.

Aldridge v. Marion Cty. Coal Co., Civil Action No. 1:17CV79,

2017 WL 3446530, at *5 (N.D. W. Va. Aug. 10, 2017). Plaintiffs,

in opposing Legislative Defendants’ motion, argue that the Reply

declarations are proper because

“[Rule 6(c)(2)] does not preclude affidavits

supporting a reply brief when they respond to evidence

supporting an opposition brief.” Robinson v. Empire

Equity Grp., Inc., No. WDQ–09–1603, 2009 WL 4018560,

at *2 (D. Md. Nov. 18, 2009) (quoting Kaiser-Flores v.

Lowe’s Home Ctrs., Inc., No. 5:08–CV45–V, 2009 WL

762198, at *8 (W.D.N.C. Mar. 19, 2009)); Aldridge v.

Marion Cty. Coal Co., No. 1:17CV79, 2017 WL 3446530,

at *5 (N.D. W. Va. Aug. 10, 2017).

(Pls.’ Strike Resp. (Doc. 80) at 5.) Plaintiffs further argue

there is no risk of “unfair surprise,” (id.), and that

Legislative Defendants have had “adequate time — seven days — to

prepare a response to such evidence.” (Id. at 18.)

This court rejects the argument that Legislative Defendants

have had “adequate time . . . to prepare a response.” (See id.)

First, the filing of declarations in a reply precludes the non-

moving party, Legislative Defendants, from providing a factual

response to any information contained in the Reply declarations

if those reply declarations contain new evidence that supports

the original motion. Even assuming Legislative Defendants have

sufficient time to respond, they do not have a means to respond

to new facts filed in support of the initial motion because that

evidence is presented for the first time in a reply. Second,

Plaintiffs filed the Reply declarations at 9:53 p.m. on July 2,

2020. (Doc. 73, Notice of Electronic Filing.) The oral argument

on the preliminary injunction was scheduled for 9:30 a.m. on

July 9, 2020. (See Minute Entry 07/01/2020.) Legislative

Defendants have had less than seven days under any reasonable

calculation of time, particularly because of the intervening

national holiday on July 4. At 9:53 p.m. on July 2, Plaintiffs

filed 160 pages of declarations after the close of business on

the day before the July 4 holiday. Plaintiffs’ late filing, and

this court’s order for a response on Monday, July 6, 2020,

obviously required Legislative Defendants to work over that

holiday weekend. However, for Plaintiffs to count those three

days – July 3, 4, and 5 – and argue Legislative Defendants have

seven days to prepare is disingenuous at best. Legislative

Defendants have had less than seven days to prepare, at least

under reasonable considerations. Legislative Defendants have

been prevented from responding factually to information

contained in the Reply declarations and from having a reasonable

time to prepare to respond at oral argument.

Nevertheless, declarations in support of a reply are

appropriate if filed in response to evidence supporting an

opposition brief. Aldridge, 2017 WL 3446530, at *5. However,

“[r]eply affidavits should not present new issues to which the

opposing party will not have an opportunity to respond.” Id. As

another district court has explained:

[T]he clear purpose of Rule 6(d) is to prevent unfair

surprise by eleventh hour filings. Orsi v. Kirkwood,

999 F.2d 86 (4th Cir. 1993). That is, a party may not

file a motion unsupported by any evidence only to

spring the evidence on the opposing party on a later

date. Instead, Rule 6(d) requires the supporting

affidavits be filed simultaneously with the motion it

supports, affording the opposing party an opportunity

to address the motion fully and squarely on its

merits.

McGinnis v. Se. Anesthesia Assocs., P.A., 161 F.R.D. 41, 42

(W.D.N.C. 1995).2

The parties here dispute whether the Reply declarations

constitute new evidence in support of the motion for preliminary

injunction as opposed to evidence properly raised in response to

evidence presented by Legislative Defendants in support of their

responsive brief. To determine whether Plaintiffs presented in

reply declarations evidence which was in fact in support of

their original motion requires a determination of what a

declaration is, what constitutes evidence in support of a

motion, and whether evidence was submitted in support of the

motion for preliminary injunction or withheld to the filing of

the Reply. This court agrees with the parties’ concession at

oral argument that an affidavit or declarations must be based

upon personal knowledge and the declaration of an expert witness

must disclose not only the expert opinion but also the basis for

that opinion.

2 Rule 6(d) was later changed in 2007 to what is now Rule

6(c) “as part of the general restyling of the Civil Rules to

make them more easily understood and to make style and

terminology consistent throughout the rules,” for stylistic

reasons. Fed. R. Civ. P. 6 advisory committee’s note to 2007

amendment.

Generally speaking, an affidavit or declaration must be

based on personal knowledge.3 Del Zotto v. Universal Physician

Servs., LLC, 214 F. Supp. 3d 499, 503 (D.S.C. 2016)

(affidavits); Soutter v. Equifax Info. Servs. LLC, 299 F.R.D.

126, 129 (E.D. Va. 2014) (declarations). Fed. R. Civ. P.

56(c)(4), addressing affidavits and declarations in support of

summary judgment, provides certain criteria for affidavits and

declarations to be used in a motion for summary judgment. See

Fed. R. Civ. P. 56(c)(4). While this is a motion for preliminary

injunction, not a motion for summary judgment, those criteria

guide the consideration of affidavits or declarations in support

of motions other than summary judgment. As a district court in

Maryland persuasively explains:

Although the affidavit was submitted in support

of a motion to dismiss for subject matter

jurisdiction, the court will look to Rule 56(e)’s

requirements for affidavits for guidance in

determining its sufficiency. See McLaughlin v.

Copeland, 435 F. Supp. 513, 521 n.1 (D. Md. 1977)

(noting that “in the case of the affidavits, the

Federal Rules of Civil Procedure do not contain

prerequisites for documents appended to responses to

3 “The terms ‘declaration’ and ‘affidavit’ are used

interchangeably in common parlance and in case law as well. An

affidavit is made under oath; a declaration is not sworn, but is

subject to the penalty of perjury.” Soutter v. Equifax Info.

Servs. LLC, 299 F.R.D. 126, 128 n.4 (E.D. Va. 2014). Further,

“28 U.S.C. § 1746 permits the use of a declaration in lieu of an

affidavit.” Id. The court will therefore use “declaration,”

because the documents at issue are all declarations.

motions to dismiss” and that “Rule 56(e), which courts

have used in judging affidavits on Rule 12(b) motions,

provides guidance for this court in viewing the

documents here”).

Goode v. STS Loan & Mgmt., Inc., No. Civ.A. DKC 2004-0999, 2005

WL 106492, at *2 (D. Md. Jan. 14, 2005).4

Therefore, regardless of whether the motion is one for

summary judgment or, as here, a motion for preliminary

injunction, presenting statements in a declaration that are not

based on personal knowledge is not presenting evidence in

support of the motion. Where a declaration or affidavit fails

“to make ‘an affirmative showing that this information was

within [her] personal knowledge and competence to testify,’” a

motion to strike will be granted. Id. at *3. An affidavit or

declaration which does not contain firsthand knowledge or

otherwise fails to demonstrate the declarant is competent to

testify about the matters contained in the affidavit or

declaration is of no evidentiary weight and may be struck.

Similarly, presenting an affidavit that contains the

opinion of an expert witness, but fails to provide the basis for

4 A motion for preliminary injunction does not require that

a declaration set out facts that would be admissible in

evidence. However, the requirements that a declaration be based

on personal knowledge and show the declarant is competent to

testify on the matters stated provides guidance in reviewing the

declarations submitted as evidence in support of the amended

motion for preliminary injunction in this case.

that opinion constitutes a failure to present evidence in

support of a motion where the motion relies upon that expert

opinion. At argument on the motion to strike, the parties agreed

that, to be considered as evidence in support of a motion, an

expert’s declaration must disclose the expert’s opinion and

basis for that opinion. This court agrees.

Fed. R. Civ. P. 26 adopts a standard that requires an

expert’s report disclose “a complete statement of all opinions

the witness will express and the basis and reasons for them.”

Fed. R. Civ. P. 26(a)(2)(B)(i). While Fed. R. Civ. P. 26 is a

discovery disclosure rule that does not apply to this

preliminary injunction proceeding, the purpose served by the

rule does apply here. “The disclosure requirement is designed to

afford opposing parties ‘a reasonable opportunity to prepare for

effective cross examination and perhaps arrange for expert

testimony from other witnesses.’” Osunde v. Lewis, 281 F.R.D.

250, 257 (D. Md. 2012) (quoting Fed. R. Civ. P. 26 Advisory

Committee Note (1993)). The failure to include the basis for an

expert witness’s opinion deprives the opposing party of a

reasonable opportunity to respond to that expert witness’s

opinion. “[T]he clear purpose of Rule 6(d) is to prevent unfair

surprise by eleventh hour filings,” McGinnis, 161 F.R.D. 41, 42,

and to withhold the basis of an expert opinion to a reply

constitutes unfair surprise.

These standards will be applied here to determine whether

Plaintiffs submitted “evidence in support of the motion,” Fed.

R. Civ. P. 6(c)(2), or whether Plaintiffs withheld such evidence

until that evidence could be filed in support of a reply and

thereby preclude Legislative Defendants from a fair opportunity

to respond to evidence presented in support of the motion for

preliminary injunction. This court will first outline the issues

raised in the amended motion for preliminary injunction, (Pls.’

Am. Mot. (Doc. 31)), and then review each of the declarations in

turn.

1. Declarations in Support of the Amended Motion for

Preliminary Injunction and Reply

As previously summarized, Plaintiffs seek injunctive relief

against several of North Carolina’s election laws, including the

following: the 25-day mail-in or online voter registration

deadline, the requirement that absentee ballot requests be made

on the State Board of Elections’ form, the restrictions on the

types of acceptable residency documentation to be included in an

absentee ballot application, restrictions on assistance with and

return of absentee ballot requests and absentee ballots (the

“Organizational Assistance Ban”), the one-witness requirement

for absentee ballots, the requirement that poll workers reside

in the county in which they serve, the requirement providing for

uniform hours in all precincts (the “Uniform Hours

Requirement”), as well as other mandatory relief, such as the

implementation of more online voter registration portals, and

contactless drop boxes for absentee ballots, among others.

(Pls.’ Am. Mot. (Doc. 31) at 4–7.)

The court will now turn to the declarations Plaintiffs

submitted in support of their Reply.

(a) Declarations of Leila Bentley

Plaintiffs presented the declaration of Lelia Bentley

(“Bentley”) in support of the motion for preliminary injunction,

(Declaration of Lelia Bentley in Supp. of Pls.’ Mot. for Prelim.

Inj. (“Bentley Decl.”) (Doc. 11-6)), and a second declaration in

support of the reply, (Reply Declaration of Lelia Bentley

(“Bentley Reply Decl.”) (Doc. 73-3)). Bentley’s first

declaration was cited in the brief in support of the original

motion for preliminary injunction as evidence of the undue

burden caused by the Organizational Assistance Ban, (Pls.’ Mem.

in Supp. of Mot. for Prelim. Inj. (“Pls.’ Prelim. Inj. Br.”)

(Doc. 10) at 32), the two-witness requirement for absentee

ballots, (id. at 34), the need for drop boxes, (id. at 36), and

the need for a process to cure errors, (id.). Bentley’s first

declaration may constitute evidence in support of those issues.

(See Bentley Decl. (Doc. 11-6).) However, in that declaration,

Bentley did not address or express any hardship in obtaining an

application for an absentee ballot. (See id.) The only

impediment Bentley listed to obtaining an absentee ballot was

her concern with the “risk of catching COVID-19 through the

witnessing process.” (Id. ¶ 9.) Notably in her original

declaration, Bentley stated that she last went to the grocery

store on March 15 and “[s]ince then, if I have needed groceries,

I order them online and have them delivered.” (Id. ¶ 4.)

However, in her declaration provided in support of the

reply, Bentley brings forward a new hardship, alleging that

“[a]ccessing an online ballot request form . . . would also be

very difficult.” (Bentley Reply Decl. (Doc. 73-3) at ¶ 7.) Not

only are these new facts, but these new facts also appear

inconsistent with her original declaration. (Compare Bentley

Decl. (Doc. 11-6) ¶ 9, with Bentley Reply Decl. (Doc. 73-3)

¶ 7.) Although Bentley stated in her original declaration that

she orders her groceries online as needed and has them

delivered, (Bentley Decl. (Doc. 11-6) ¶ 4), Bentley states in

the new declaration that:

[m]y only access to the Internet is through a “hot

spot” . . . [M]y service is so poor that I frequently

get disconnected. Sometimes, people call my cellphone

but it goes straight to voicemail . . . .

. . . .

As for my grocery deliveries, I initially submitted an

order online, and it is automatically renewed and sent

every week.

(Bentley Reply Decl. (Doc. 73-3) ¶¶ 7, 9.) Bentley’s new

information, including (1) a change from ordering groceries

online when needed to a straightforward automatically renewing

order of groceries and (2) the inclusion of previously

undisclosed details of a hardship in obtaining an absentee

ballot online, in part due to her poor internet service,

constitutes the submission of new evidence in the case. That new

evidence conflicts with the original evidence and offers new

evidence in support of the motion. This is not a “clumsy”

attempt to anticipate arguments about the use of remote

technology as argued by Plaintiffs. (Pls.’ Strike Resp. (Doc.

80) at 8.) Instead, Bentley’s reply declaration presents

evidence in support of the original motion and raises “new

issues to which the opposing party will not have an opportunity

to respond.” Aldridge, 2017 WL 3446530, at *5.

(b) Declarations of Gary Bartlett

Gary Bartlett’s (“Bartlett”) first declaration, submitted

with the original motion, included his curriculum vitae (“CV”),

which suggests that Plaintiffs tendered Bartlett as an expert

witness in elections law. (See Declaration of Gary Bartlett in

Supp. of Pls.’ Mot. for Prelim. Inj. (“Bartlett Decl.”) (Doc.

12-3) at 1-5, 15.) With respect to the 25-day deadline for voter

registration as challenged by Plaintiffs, Bartlett states in his

original declaration the following opinion:

In my experience, given the challenges that the

coronavirus pandemic is presenting to voter

registration, the 25 day deadline before an election

for voter registration should be extended through to

the close of One-Stop Absentee Voting (Early Voting)

to allow eligible individuals the opportunity to

register to vote.

(Id. ¶ 16.) This 25-day deadline was first implemented by statute

in 1994. See 1994 N.C. Sess. Laws Ch. 762, Art. 7A (H.B. 1776).

Bartlett was Executive Director of the North Carolina State

Board of Elections from 1993 to 2013, (Bartlett Decl. (Doc.

12-3) ¶ 2), and was therefore familiar with the 25-day deadline

and any purposes served by that deadline. However, Bartlett’s

opinion described above amounts to nothing more than an

unexplained assertion that the coronavirus pandemic requires

extension of the 25-day deadline “to allow eligible individuals

the opportunity to register to vote.” (See id. ¶ 16.)

Nevertheless, in Bartlett’s reply declaration, Bartlett

provides the following opinions, and bases for those opinions,

in great detail as to the 25-day deadline:

5. I have reviewed the concerns expressed by Executive

Director Bell and the county board of elections

members Devore and Hawkins regarding extending the

voter registration deadline, from 25 days before

the election to allowing registration up until the

Saturday before the Election. I find these concerns

to be overstated and speculative, and they fail to

account for the burden on voter registration that

is imposed by not extending this deadline during

the pandemic.

6. For example, it is unrealistic to worry that voters

will seek to register through a voter registration

form or the DMV and then, within mere days, try to

register again or vote at a one-stop site. If

voters are considering early voting at all, and are

unregistered, they will almost certainly know of

the same-day registration option as well, as this

is a well-known feature of early voting and is

prominently advertised on the Board of Elections

website. See https://www.ncsbe.gov/Voting-Options/

One-Stop-Early-Voting.

7. By contrast, the individuals that will need the

extension of the 25-day deadline to register are

likely those who will be unable to take advantage

of early voting. This would include those who need

to vote by absentee mail-in ballot who are as yet

unregistered. If the deadline is extended, these

individuals will be able to but register and

request an absentee ballot at the same time within

that period. The extension also benefits those who

are unregistered and need to vote on election day.

These individuals, while only a portion of the

population, are individuals qualified to register

and vote who will be disenfranchised without an

extension of the 25-day deadline.

8. In any event, if there are any instances of overlap

in registrations, county boards can use

Supplemental Voter Registration Lists, which are

already used by several counties, to prevent

administrative burdens from registrations.

Furthermore, early voters can continue to use

Provisional Ballots if their registration has not

been processed or logged, which would be the

procedure even if the deadline were not extended.

(Doc. 73-6 ¶¶ 5–8.) Bartlett’s reply declaration raises new

facts, opinions, and bases for those opinions that were not

presented in the original declaration or motion. Indeed, these

facts and opinions have been presented in a manner which

forecloses Legislative Defendants’ ability to fairly respond

because they were withheld until filed in support of the Reply.

The expert witness disclosure requirement is “designed to afford

opposing parties ‘a reasonable opportunity to prepare for

effective cross examination and perhaps arrange for expert

testimony from other witnesses,’” Osunde, 281 F.R.D. at 257, and

by failing to present the basis for Bartlett’s opinion in

support of the original motion for preliminary injunction,

Plaintiffs deprived Legislative Defendants of a fair opportunity

to respond. Reply declarations should not present new issues to

which the opposing party will not have an opportunity to

respond. Aldridge, 2017 WL 3446530, at *5. An expedited request

for a preliminary injunction is not an excuse to withhold

material parts of an expert witness’s opinion until a reply

brief is filed.

(c) Declaration of Kenya Myers

The Organizational Assistance Ban, and the question of who

can provide assistance in completing absentee voting, by mail

and otherwise, are matters challenged by Plaintiffs. (See Pls.’

Prelim. Inj. Br. (Doc. 10) at 30-36.) Plaintiffs argue in their

original motion for preliminary injunction that “the multi-

partisan assistance teams cannot remedy these barriers in

certain North Carolina counties where their availability has

been inadequate under the best of circumstances.” (Id. at 33.)

The evidence cited in support of that argument, the

declaration of Allison J. Riggs, states that “[a]ttached hereto

as Exhibit 10 is a true and correct copy of a February 28, 2020

Letter from Disability Rights North Carolina . . . .”

(Declaration of Allison J. Riggs in Supp. of Pls.’ Mot. for

Prelim. Inj. (“Riggs Declaration”) Doc. 12-6 ¶ 12.) This letter

(the “Disability Rights NC letter”) was authored and sent by

Kenya Myers (Doc. 12-7 at 56), but no declaration was filed by

Kenya Myers attesting to the substantive information in the

Disability Rights NC letter. Instead, Riggs’ declaration only

attests to the fact that the exhibit is a “true and correct copy

of a February 28, 2020 Letter . . . regarding Davidson County’s

failure to assemble a Multipartisan Assistance Team [“MAT”].”

(Doc. 12-6 ¶ 12.)

Riggs’ declaration is insufficient to establish whether the

information contained in the Disability Rights NC letter is

correct, whether the Disability Rights NC letter was in fact

sent, or even that the Davidson County Board of Elections’

failure to assemble a MAT is an insurmountable “barrier,” (Pls.’

Prelim. Inj. Br. (Doc. 10) at 33), for certain voters to cast a

vote as argued. Even assuming Davidson County did not assemble a

MAT as stated in the Disability Rights NC letter, the letter

requests that the letter’s authors receive confirmation of the

statutory ability of representatives of Disability Rights NC, as

non-excluded individuals under the Organizational Assistance

Ban, to assist the voter. (Doc. 12-7 at 55) (“Davidson County

has not assembled a MAT and has given no indication one will be

formed in time to assist the voter in requesting and casting her

absentee ballot in the primary election taking place on March

3rd,” (id. at 55), and “Please advise immediately if you will

permit representatives of Disability Rights NC or other non-

partisan organizations to assist voters with disabilities

residing in facilities in Davidson County with voting via

absentee ballot,” (id. at 56).)

Although Riggs’ declaration and the Disability Rights NC

letter appear to contain evidence that might otherwise support

arguments made in the motion for preliminary injunction, the

declaration provides no facts to indicate Riggs is competent to

make the declaration or that Riggs has any personal knowledge of

the facts contained in an otherwise-unverified letter. Where a

declaration fails “to make ‘an affirmative showing that this

information was within [her] personal knowledge and competence

to testify,’” a motion to strike will be granted. Goode, 2005 WL

106492, at *3.

Plaintiffs were therefore aware of the opinion of Kenya

Myers, issues with a MAT in Davidson County, and Myers’s

advocacy on that issue as well as her request to assist a voter.

Plaintiffs do not dispute that Myers was available to provide a

declaration in support of the amended preliminary injunction

motion at the time the motion was filed. Nevertheless,

Plaintiffs did not file a declaration from Myers in support of

the motion for preliminary injunction. Instead, Plaintiffs chose

to file a copy of a letter of unknown foundation and veracity

and withheld evidence as to the substance of the letter until

the filing of the Reply and the declaration of Myers filed in

support of that Reply. (Doc. 73-8.)

Myers’s declaration contains new evidence. In her

declaration, Myers first alleges that “[t]he Davidson County

Board of Elections and the State Board of Elections did not take

any action in response to our communications and failed to

provide a MAT to assist the resident of the skilled nursing

facility to vote.” (Id. ¶ 7.)5 That information may very well be

firsthand knowledge of the substantive information contained in

the previously unverified letter.

In addition to attesting to the substance of the previously

unverified Disability Rights NC letter, Myers alleges that

during those same 2020 Primary Elections, she was apparently

told that the Burke County Board of Elections did not offer a

MAT when she called to request voting assistance, (id. ¶ 8), and

that on May 29, 2020, the Northampton County Board of Elections

admitted it had not assembled a MAT for the 2020 Primary

Election and had “yet to discuss assembling a MAT for the 2020

Presidential Election,” (id. ¶ 9). The reply declaration of

Myers thus contains new information which arguably now makes the

Disability Rights NC letter subject to consideration as evidence

in support of the amended motion for preliminary injunction.

Opposing parties have had neither a chance to respond nor an

5 At trial, Plaintiffs sought to introduce email

communications between the state board’s counsel and Myers

through the testimony of Karen Brunsen Bell. These emails

provided additional information relating to the information

first disclosed in the Myers reply declaration. As a result, the

court sustained Legislative Defendants’ objection. Although

excluded, this court did review the emails and finds the

communications included in the emails relate to the declaration

and letter at issue here and, because the declaration is struck,

additional information relating to that declaration is struck as

well.

opportunity to conduct discovery as to these various

allegations.

Plaintiffs do not argue they were not aware of Myers’s

information at the time they filed the motion for preliminary

injunction. Obviously, they were. The tactics here – the filing

an unverified letter without authentication of the contents of a

letter followed by the filing of a declaration in support of a

reply which includes personal knowledge and new allegations by a

declarant – is not acceptable. The reply declaration of Kenya

Myers unfairly deprives Defendants an opportunity to respond.

“Reply affidavits should not present new issues to which the

opposing party will not have an opportunity to respond.”

Aldridge, 2017 WL 3446530, at *5.

The process adopted in this case also permits Plaintiffs to

withhold the possibility of Legislative Defendants responding

and perhaps discovering other relevant facts. The voter

described in the Disability Rights NC letter is not identified.

In the declaration filed in support of the Reply, Myers does not

disclose whether “representatives of Disability Rights NC or

other non-partisan organizations” did in fact assist the voter

as requested in the Disability Rights NC letter. (See Doc. 73-8)

Myers’ failure to explain whether this resident was or was not

able to vote, whether Myers or her organization assisted, and

whether she did in fact vote are facts which might have some

relevance in determining whether the challenged statutes

constitute an unconstitutional burden on the right to vote.

Furthermore, Myers’s reply declaration includes hearsay

allegations with respect to the absence of MATs in other

counties and does not reflect personal knowledge as to these

allegations. In fact, the provision of the letter in the opening

brief is in fact misleading to this court as it suggests the

statute, N.C. Gen. Stat. § 163-226.3(a)(4) may have worked as

intended, purportedly allowing an individual to act in the

absence of a MAT. Myers fails to explain whether it did or did

not.

(d) Declaration of Jake Quinn

Jake Quinn (“Quinn”) did not file a declaration in support

of the motion for preliminary injunction but did file a

declaration in support of the Reply, (Declaration of Jake Quinn

in Supp. of Pls.’ Mot. for Prelim. Inj. (“Quinn Declaration”)

(Doc. 73-9).

In their original motion, Plaintiffs argued that

the Uniform Hours Requirement has already proven to cause

polling locations to close as follows: “After North Carolina

imposed this requirement in June 2018, the costs of implementing

this measure caused 43 counties to reduce the number of early

voting sites in the 2018 general election compared to 2014 and

over two-thirds of counties to reduce weekend hours.” (Pls.’

Prelim. Inj. Br. (Doc. 10) at 50 (citing Doc. 11-1 ¶ 7; Doc.

12-6 ¶¶ 18—19).) Tomas Lopez, the Executive Director of

Democracy North Carolina, states the following in his

declaration:

[A]fter North Carolina enacted S325 in June 2018

mandating uniform hours across all early voting sites

within each county, the costs of implementing this

measure caused 43 counties to reduce the number of

early voting cites in the 2018 election compared to

2014 and over two thirds of counties to reduce weekend

hours.

(Declaration of Tomas Lopez in Supp. of Pls.’ Mot. for Prelim.

Inj. (“Lopez Decl.”) (Doc. 11-1) ¶ 7 (footnote omitted).)

Importantly, Lopez is not a board of elections employee in any

capacity; he is Executive Director of Democracy North Carolina,

a plaintiff in this case. (Id. at 1.) In his declaration, Lopez

points to no facts to support his opinion or conclusion that the

costs of the Uniform Hours Requirement caused the reduction in

polling sites, nor does Lopez provide any basis upon which to

conclude his opinion is based on personal knowledge or that he

is otherwise competent to offer this opinion. Lopez is not

qualified as an expert and even if he were permitted to offer

his opinion as an expert or lay witness, the absence of any

foundation for this opinion make the weight of his opinion

limited at best.

Riggs’ declaration cites to two publications; one is a

transcript of testimony by Lopez, (Doc. 12-6 ¶ 18), and the

second is an article published by ProPublica, (id. ¶ 19). The

testimony provided by Lopez with respect to the Uniform Hours

Requirement mentions the reductions in number of voting sites in

2018, and provides other statistics, but, like his declaration,

offers no factual basis for the reasons he concludes the

reduction in polling places is caused by the Uniform Hours

Requirement. (Doc. 12-8 at 31-32.) The ProPublica article is

simply that: a news article, unsworn, and therefore of no

evidentiary weight on the issue of whether or not the costs

associated with the Uniform Hours Requirement necessitated the

closing of polling places.

Riggs’ declaration neither professes nor provides any basis

upon which to conclude Riggs has any personal knowledge of the

facts contained in the article. Neither the ProPublica article

nor Lopez’s declaration mention Buncombe County in any fashion.

Further, any statements attributed to elections officials in the

article are not authenticated in any fashion, and the article is

thus accorded no weight in support of Plaintiffs’ motion for

preliminary injunction. (See Doc. 12-8.) Where a declaration

fails “to make ‘an affirmative showing that the information was

within [her] personal knowledge and competence to testify,’” a

motion to strike will be granted. Goode, 2005 WL 106492, at *3.

Plaintiffs filed the declaration of Quinn in support of

their Reply. (Quinn Decl. (Doc. 73-9).) Quinn has served as the

Chair of the Buncombe County Board of Elections (“the Board”)

since February 2019. (Id. ¶ 1.) Quinn states that the “uniform

hours requirement that was implemented in 2017 has forced the

Board to spend extra money and time staffing polling places.”

(Id. ¶ 5.) As a result, Quinn alleges, the Board has been forced

“to decrease the number of early voting sites for General

Elections.” (Id. ¶ 7.)

In response to Legislative Defendants’ motion to strike,

Plaintiffs do not argue that they did not have access to Quinn’s

information and declaration at the time the motion for

preliminary injunction was filed. Instead, Plaintiffs contend

the declaration “specifically rebuts those declarants’

assertions about the efficacy of the uniform hours requirement

. . . .” (Pls.’ Strike Resp. (Doc. 80) at 6-7.) But the

declaration does more than that. It constitutes evidence

presented, for the first time by Plaintiffs, from a possibly

competent witness alleging firsthand knowledge of the reasons

why one county did not have or fund certain polling sites as a

result of the Uniform Hours Requirement. By filing the

declaration of Quinn with their Reply, Plaintiffs did not

present competent evidence from an individual with personal

knowledge that the Uniform Hours Requirement resulted in a

reduced number of polling places, at least in Buncombe County

with the original motion. The withholding of a board of

elections member’s declaration under these circumstances is

tantamount to, if not exactly the process of, “filing a motion

unsupported by any evidence only to spring the evidence on the

opposing party on a later date.” Masters v. Lin, Civil Action

No. 6:14-2473-TMC, 2015 WL 12830505 at *6 (D.S.C. Jan. 23,

2015).

(e) Reply Declaration of Paul Gronke

Dr. Paul Gronke (“Gronke”) is a Professor of Political

Science and has been tendered by Plaintiffs as an expert.

(Declaration of Paul Gronke in Supp. of Pls.’ Mot. for Prelim.

Inj. (“Gronke Decl.”) (Doc. 12-2) ¶¶ 1–6.) In his initial

declaration, filed in support of the original motion for

preliminary injunction, Gronke offers an opinion on a variety of

issues raised by the motion, including voting by mail, early

voting, and the effect of COVID-19 on this election. (See id.

¶¶ 5–6.) But Gronke’s declaration submitted in support of

Plaintiffs’ Reply, (Declaration of Paul Gronke in Supp. of Pls.’

Amended Mot. for Prelim. Inj. (“Gronke Reply Decl.”) Doc. 73-5),

does not simply respond to Legislative Defendants — it adds new

opinions.

In Gronke’s original declaration, he states that “County

boards will also need sufficient time to be able to recruit poll

workers,” (Gronke Decl. (Doc. 12-2) ¶ 58), and offers a

statistical basis for the opinion as an explanation. He also

alleges that “[r]ecruitment of replacement workers will be

difficult across the state.” (Id. ¶ 59.) He concludes that if

“[t]he requirement that a majority of Election Day poll workers

reside within an election precinct is also unnecessarily

burdensome . . . were relaxed, it will allow County boards more

latitude to recruit sufficient Election Day poll workers.” (Id.

¶ 60.)

After Gronke’s original declaration was filed on June 5,

2020, (see Gronke’s Decl. (Doc. 12-2)), North Carolina passed a

new statute, H.B. 1169, on June 12, 2020. 2020 N.C. Sess. Laws

2020-17 (H.B. 1169). That statute modified the requirement that

a majority of poll workers were required to reside in the

precinct and allowed poll workers to come from anywhere in the

county where they resided. Id. § 1.(b). Inexplicably, when

Plaintiffs filed their amended motion for preliminary injunction

on June 18, 2020, (Doc. 31), Plaintiffs did not amend their

original brief in support of the motion for preliminary

injunction nor did they amend any of the declarations. (See id.

at 8.) Plaintiffs thereby withheld providing notice of the way

Gronke’s opinion might change as a result of the passage of H.B.

1169.

This court has reviewed the record, specifically with

respect to Gronke’s declaration, because his declaration was

modified in response to H.B. 1169 specifically. Plaintiffs moved

to file a Second Amended Complaint and an Amended Motion for

Preliminary Injunction on June 18, 2020. (Doc. 27.) In that

motion, Plaintiffs specifically alleged that the Second Amended

Complaint was necessary in response to HB 1169. (Id. at 5.) In

further argument as to the Amended Motion for Preliminary

Injunction, Plaintiffs represented:

Plaintiffs do not request leave to submit an amended

Memorandum in Support of the Motion for Preliminary

Injunction, and intend instead to address these

changes in their Reply Brief, in the interest of

judicial economy and to the extent permitted under

Local Civil Rule 7.2.

(Id. at 7.) LR 7.2 requires that briefs contain a statement of

facts, and each fact should be supported by reference to a part

of the official record in the case. LR 7.2(a). “Reply briefs

filed with the court . . . may contain [a concise statement of

the facts] to the limited extent of responding to factual

matters newly raised in the response.” Id. Neither the parties’

agreement, as described in the motion to amend, (Doc. 27), nor

the Local Rules permit the introduction of new evidence in

support of a motion for preliminary injunction for the first

time in a reply brief. More significantly, Plaintiffs only

sought to address changes “in their reply brief,” and gave no

notice to suggest, nor sought any agreement that might allow,

the presentation of new expert opinions as part of a reply

brief.

Nevertheless, Plaintiffs submitted a new expert opinion

from Gronke in support of their Reply. In his declaration in

support of the Reply, Gronke declares that, in his opinion,

unless “the requirement that poll workers are registered in the

county where they are working [is removed], North Carolina will

experience poll worker shortages.” (Gronke Reply Decl. (Doc.

73-5) ¶ 12.) This is a new opinion from an expert, and therefore

constitutes new evidence presented for the first time in a

reply. As Legislative Defendants argue,

Gronke’s prior declaration did not address the Home

County Requirement because before HB1169, there was no

such requirement; the prior law required a majority of

poll workers at any site to be from the precinct. And

yet, when Plaintiffs’ amended their complaint and

preliminary injunction motion in mid-June, they did

not make a single change to their brief, nor did they

submit any declaration from Gronke or anyone else

discussing the Home County Requirement.

(Doc. 78 at 13.) As reflected in the discussion above, the

parties apparently agreed Plaintiffs could stand on the original

brief in support of the amended motion for preliminary

injunction; the parties will have to abide by whatever may have

been settled by that agreement. However, no one agreed, nor will

this court permit, the presentation of a new expert opinion for

the first time as part of a reply.6

The expert witness disclosure requirement is “designed to

afford opposing parties ‘a reasonable opportunity to prepare for

effective cross examination and perhaps arrange for expert

testimony from other witnesses,’” Osunde, 281 F.R.D. at 257, and

by failing to present a current opinion by Gronke in support of

the amended motion for preliminary injunction, Plaintiffs

deprived Legislative Defendants of a fair opportunity to

respond. Reply declarations should not present new issues to

which the opposing party will not have an opportunity to

respond. Aldridge, 2017 WL 3446530, at *5.

6 During the evidentiary hearing held on July 20-22, 2020,

Plaintiffs sought to introduce through testimony Dr. Gronke’s

opinion in either the same or a similar form to that which was

excluded by the terms of this Memorandum Opinion and Order.

Because the testimony of this expert was presented in a manner

so as to preclude Legislative Defendants from responding during

the briefing process, this court excluded the testimony at the

evidentiary hearing for the same reasons set forth herein.

2. Motion to Strike Analysis

The parties do not significantly dispute the standard this

court should apply in determining whether any of the

declarations filed in support of the reply should be struck.

Rule 6(c)(2) “does not preclude affidavits supporting

a reply brief when they respond to evidence supporting

an opposition brief.’ Robinson v. Empire Equity Grp.,

Inc., No. WDQ-09-1603, 2009 WL 4018560, at *2 & n.14

(D. Md. Nov. 18, 2009).

In other words, affidavits may accompany a reply

brief if they support the reply rather than the

original motion. Reply affidavits should not present

new issues to which the opposing party will not have

an opportunity to respond.

Aldridge, 2017 WL 3446530, at *5.

This court finds Legislative Defendants’ motion to strike,

(Doc. 77), should be granted in part and denied in part.

The court finds the declarations of Kenya Myers, (Doc. 73-

8), and Jake Quinn, (Doc. 73-9), should be struck in their

entirety. The court finds Plaintiffs withheld evidence in

support of their motion for preliminary injunction where that

evidence was likely based on firsthand knowledge and did not

submit that evidence until the Reply, in effect withholding

evidence in support of the motion until the filing of a reply.

This court finds the reply declaration of Lelia Bentley,

(Doc. 73-3), should be struck in part; paragraphs 7, 8, and 9

will be stricken for the reasons described herein.

The reply declaration of Gary Bartlett, (Doc. 73-6), will

be struck in part as the declaration in support of the amended

motion for preliminary injunction withheld the basis for an

expert opinion of the declarant and paragraphs 5, 6, 7, and 8

will be struck.

Finally, the declaration of Dr. Paul Gronke, (Doc. 73-5),

will be struck in part for introducing an expert opinion for the

first time in support of the Reply; paragraphs 11, 12, and 13

are struck.

The court finds the remaining declarations and opinions

should not be struck as requested; that relief is denied. After

careful review of the remaining declarations, this court finds

those declarations constitute responses to evidence offered in

support of the opposition briefs filed by Executive and

Legislative Defendants.

This court declines to permit consideration of those

declarations, or the parts of the declarations that have been

struck by this order.

The fact some limited discovery, at this late date in the

process, is underway as will be explained hereafter has caused

the court to consider whether the declarations should be

considered and addressed as part of the discovery process

instead of being struck. For the following reasons, the court

declines to do so.

First, it is Plaintiffs, not Legislative Defendants, that

have caused delay to these proceedings. Had Plaintiffs provided

the facts addressed in this Memorandum Opinion and Order in

support of the amended motion for preliminary injunction, this

matter could likely have been avoided. Plaintiffs suggested

during argument that much of this evidence only responded to

Defendants’ evidence; Plaintiffs remain free to rely upon their

evidence submitted with the original motion for preliminary

injunction and the accepted evidence submitted with the Reply.

However, the evidence submitted in support of the original

motion and responses have framed these proceedings; Plaintiffs

were satisfied with that and this court does not find it

appropriate to expand the record by permitting the presentation

of evidence improperly withheld until the Reply.

Second, the factual issues and the related discovery have

been framed by the declarations filed by all parties. Because,

in some instances, Plaintiffs chose to file evidence in support

of the amended motion for preliminary injunction as explained

hereinabove, Plaintiffs deprived Legislative Defendants of a

fair opportunity to respond to substantive evidence with their

own declarations during the briefing process. This court, as

well as the Executive Defendants, has understood that the

parties desire to move in an expeditious manner. (See Doc. 61 at

5 (“There is simply no way to reconcile the burdensome discovery

process requested by Intervenors with an expedited resolution of

this matter, as requested by the original parties.”); Doc. 79

at 3 (“[T]he State defendants’ understanding throughout the

pendency of this matter, particularly with regard to the

preliminary injunction motion, has been that the Court and the

parties understandably desire to move as expeditiously as

possible.”).) In fairness to all parties, if the court were to

allow consideration of the declarations that have been struck,

the court would feel compelled, in the interests of fairness, to

permit Legislative Defendants an opportunity to file a surreply

which would further delay these proceedings. The court finds

such further delay is neither necessary nor an appropriate

balance of fairness and the interests of justice.

The court will therefore grant Legislative Defendants’

motion to strike, (Doc. 77), in part.

C. Legislative Defendants’ Motion for Leave to Take

Depositions

Finally, Legislative Defendants requested leave to take

discovery to “help ensure that the Court is deciding Plaintiffs’

motion for a preliminary injunction . . . on a full and complete

record that has been subjected to the adversarial process.”

(Leg. Defs.’ Discovery Mot. (Doc. 49) at 4.) Legislative

Defendants argue that discovery would help clarify the

presentation to the court. (Id.) This court agrees discovery

would be helpful to the court.

As a district court in West Virginia persuasively explains,

in the preliminary injunction context, the party seeking

injunctive relief bears the burden of offering evidence beyond

the pleadings, the evidentiary rules are “less formal,” Univ. of

Tex. v. Camenisch, 451 U.S. 390, 395 (1981), and

Statements contained in an uncontroverted

affidavit may be accepted as true, Elrod v. Burns, 427

U.S. 347, 350 n.1, 96 S. Ct. 2673, 49 L. Ed. 2d 547

(1976) (“For purposes of our review . . .

uncontroverted affidavits filed in support of the

motion for a preliminary injunction are taken as

true.”), “but if there are genuine issues of material

fact raised in opposition to a motion for a

preliminary injunction, an evidentiary hearing is

required,” Cobell v. Norton, 391 F.3d 251, 261 (D.C.

Cir. 2004); Blackwelder Furniture Co., 550 F.2d [189]

at 192 n.1 [4th Cir. 1977] (noting that if “everything

turns on what happened and that is in sharp dispute,”

the court should ordinarily hold an evidentiary

hearing and require live testimony, rather than rely

on the parties’ submissions (quoting Semmes Motors,

Inc. v. Ford Motor Co., 429 F.2d 1197, 1204 (2d Cir.

1970))). Moreover, the weight to be accorded affidavit

testimony is within the discretion of the court, and

statements based on belief rather than personal

knowledge may be discounted. Federal Practice &

Procedure § 2949 (collecting authority).

Imagine Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d

862, 868–69 (S.D. W. Va. 2014).

After reviewing the record, this court finds there are

disputed issues of fact and an evidentiary hearing is necessary.

Returning to the factors applied in determining when

discovery is necessary, taking into account the totality of the

circumstances, this court will consider: “(1) whether a

preliminary injunction is pending; (2) the breadth of the

discovery requests; (3) the purpose for requesting the expedited

discovery; (4) the burden on the defendants to comply with the

requests; and (5) how far in advance of typical discovery

process the request was made.” JTH Tax, 2013 WL 460316, at *2

(quoting Disability Rights Council of Greater Wash., 234 F.R.D.

at 6).

This court first finds the purposes of the requested

discovery — to address contested issues, to ensure a complete

record, and to assist in clarifying the issues for factual

resolution – weigh in favor of permitting limited discovery.

Second, the court does not find that a limited discovery process

prior to the evidentiary hearing on the motion for preliminary

injunction would cause undue burden on the parties. And third,

this court finds that discovery can be narrowly tailored to the

issues before the court regarding the motion for preliminary

injunction.

This court therefore finds limited discovery should be

permitted and an evidentiary hearing held.7 The parties have met,

conferred, and reached agreement as to an appropriate discovery

process in light of the considerations outlined herein. (See

Docs. 88, 90, 92; Minute Entry 07/13/2020.) In light of this

court’s findings, both in this order and as expressed during a

telephone conference on July 13, 2020, the court approves the

discovery process and the procedure for an evidentiary hearing.

III. CONCLUSION

IT IS THEREFORE ORDERED that Legislative Defendants’ motion

to strike, (Doc. 77), is GRANTED IN PART. This court STRIKES the

declarations of Kenya Myers, (Doc. 73-8), and Jake Quinn, (Doc.

73-9), in their entirety. The declaration of Lelia Bentley,

(Doc. 73-3), is STRUCK IN PART and paragraphs 7, 8, and 9 are

STRUCK. The declaration of Gary Bartlett, (Doc. 73-6), is STRUCK

IN PART and paragraphs 5, 6, 7, and 8 are STRUCK. The

declaration of Dr. Paul Gronke, (Doc. 73-5), is STRUCK IN PART

and paragraphs 11, 12, and 13 are STRUCK.

The court finds the remaining declarations and opinions

should not be struck as requested, and that relief is denied.

7 As of July 24, 2020, the parties have engaged in discovery

and the court held an evidentiary hearing on July 20-22, 2020.

(See Minute Entries 07/20/2020, 07/21/2020, 07/22/2020.)

IT IS FURTHER ORDERED that Legislative Defendants’ motion

for leave to take depositions, construed as a motion for

prehearing discovery, (Doc. 49), is GRANTED IN PART and

discovery shall be permitted in accordance with the discovery

plans presented by the parties as described herein.

This the 27th day of July, 2020.

*

LS Wi rn L. abun. □

Bo Mi sn Osha Nt

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