# DEMOCRACY NORTH CAROLINA v. NORTH CAROLINA STATE BOARD OF ELECTIONS

> District Court, M.D. North Carolina · July 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10253635

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253635

## Opinion text

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

- 48 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253635. Public record. Not legal advice.