The opinion
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
Defendant-Intervenors Phillip E. Berger and Timothy K.
Moore (“Legislative Defendants”) move this court, (Doc. 170), to
clarify its October 14, 2020 order, (Doc. 169), which enjoined
Defendant North Carolina State Board of Elections (“Executive
Defendants” or “the SBE”) from curing ballots that lack a
witness signature. Legislative Defendants request that this
court further enjoin the cure of any ballots which have “the
voter’s information in the place of the witness” or else lack
all of the following: (1) a printed witness name, (2) any part
of a witness address, and (3) a legible witness signature. (Doc.
170 at 1-2.) Legislative Defendants argue these defects “mak[e]
it impossible to identify the witness” and curing such ballots
would therefore be in violation of the statutory witness
requirement. (Id. at 2.)
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984) compels this court to deny the relief requested by
Legislative Defendants in their motion for clarification, (Doc.
170). However, the denial of relief should not be misconstrued
as this court’s approval of the actions of the North Carolina
State Board of Elections. To the contrary, for the second time
in this case, this court has serious concerns about the conduct
of the North Carolina State Board of Elections. As will be
explained, based on the evidence presented, this court finds
that the State Board of Elections is permitting at least two
county boards of elections to undermine and contravene the
requirements of the law of the state of North Carolina, H.B.
1169, in accepting and processing absentee ballots without the
minimal witness information required by that statute. Although
Justice Gorsuch was commenting on a different case, his comments
are applicable here when considering the “cure” process
currently in use for absentee ballots in this election:
[E]fforts like these not only offend the Elections
Clause’s textual commitment of responsibility for
election lawmaking to state and federal legislators,
they do damage to faith in the written Constitution as
law, to the power of the people to oversee their own
government, and to the authority of legislatures. Such
last-minute changes by largely unaccountable bodies,
too, invite confusion, risk altering election
outcomes, and in the process threaten voter confidence
in the results. Wise v. Circosta, ____ F.3d ____, ____
(CA4 2020) (en banc) (Wilkinson and Agee, joined by
Niemeyer, JJ., dissenting).
Moore v. Circosta, ____ S. Ct. ____, 2020 WL 6305036, at *2
(U.S. Oct. 28, 2020).
The North Carolina State Board of Elections is a state
actor, and H.B. 1169 is the law of the state of North Carolina.
The election is four days away. The limits placed on this court
by the claims in this case and Pennhurst unfortunately require
that this motion be denied.
I. STATEMENT OF THE FACTS
Under the United States Constitution, the North Carolina
legislature is delegated the power to “prescribe[]” “[t]he
Times, Places and Manner of holding Elections.” U.S. Const. art.
I, § 4, cl. 1. Accordingly, the Legislature passed, and the
Governor signed, H.B. 1169, which provides that:
For an election held in 2020, notwithstanding [N.C.
Gen. Stat. §] 163-229(b) and [N.C. Gen. Stat. §] 163-
231(a), and provided all other requirements for
absentee ballots are met, a voter’s returned absentee
ballot shall be accepted and processed accordingly by
the county board of elections if the voter marked the
ballot in the presence of at least one person who is
at least 18 years of age and is not disqualified by
[N.C. Gen. Stat. §] 163-226.3(a)(4) or [N.C. Gen.
Stat. §] 163-237(c), provided that the person signed
the application and certificate as a witness and
printed that person’s name and address on the
container-return envelope. For an election held in
2020, notwithstanding [N.C. Gen. Stat. §] 163-229(b),
the State Board of Elections may prepare applications
for each container-return envelope providing for a
space for the identification of one person witnessing
the casting of the absentee ballot in accordance with
[N.C. Gen. Stat. §] 163-231, that person’s signature,
and that person’s printed name and address.
N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(a).
Put simply, 2020 state law requires the following for a
returned absentee ballot to be “accepted and processed”: (1)
marking of the ballot in the presence of a qualified witness;
(2) the signature of the witness; (3) the printed name of the
witness; and (4) the address of the witness. Id. According to
the statute, all of this information must be included on the
container-return envelope. Id. This court understands “accepted
and processed” in its formal sense, to mean fully accepted for
counting by the county boards.1
1 This differs from the colloquial sense in which the
parties use “accepted” in their briefs: the parties use the term
to refer to ballots which have been approved for counting on the
contingency that a cure certification is properly filled out and
returned.
This court’s original preliminary injunction, (Memorandum
Opinion and Order (“August Order”) (Doc. 124)), did not mandate
that every ballot be cured.2 Rather, it required the SBE to
provide “due process as to those ballots with a material error
that is subject to remediation.” (Id. at 187.) At the time of
the August Order, this court found “no procedures in place
statewide that would either notify a voter that their absentee
ballot has a material error nor allow such a voter to be heard
in challenging such a rejection.” (Id. at 157-58.) Nothing about
this court’s August Order could, or should, be construed to
suggest that North Carolina law permits an absentee ballot to be
formally accepted and processed without the statutorily required
information.
Following the August Order, Legislative Defendants
challenged Executive Defendants’ implementation of Due Process
fixes, prompting this court to issue its Memorandum Opinion and
Order on October 14, 2020 (“October Order”). (Doc. 169.) This
2 A Due Process right to notice and an opportunity to be
heard is not synonymous with notice and a right to cure. A cure
procedure is one way to ensure a voter has both notice and an
opportunity to be heard but is not specifically required by Due
Process or by this court’s August Order. Moreover, it remains
consistent with this court’s August Order that some ballot
errors may not be subject to remediation and cannot be fixed via
a “cure” process.
court enjoined the SBE from attempting to “cure” those ballots
that are missing a witness signature and therefore required
spoliation. (Id. at 40-41.) Though this court made clear that
other errors may be curable, “such as a witness signature on the
wrong line or an incomplete address,” (Id. at 41),3 this court
would not permit approval of an “absentee ballot which has not
been executed in accordance with H.B. 1169.” (Id. at 39.)
In response, the SBE issued new guidance, (“October Revised
Memo”) (Doc. 171-3), regarding Due Process and the cure of
absentee ballot errors subject to remediation. The October
Revised Memo adjusted the SBE’s list of which errors were
curable and which required spoliation:
The following deficiencies can be cured by sending the
voter a certification:
• Voter did not sign the Voter Certification
• Voter signed in the wrong place
• Witness or assistant did not print name
• Witness or assistant did not print address
• Witness or assistant signed on the wrong line
. . . .
3 This court also referred to “incomplete witness
information” as remediable in its August Order. (August Order
(Doc. 124) at 156.) This language was broad, and to avoid any
misunderstanding now or in the future, this court wishes to
clarify that a missing witness signature does not fall within
the intended scope of “incomplete witness information.” This
language was originally intended as shorthand for lesser issues
such as incomplete address information or a missing printed
witness name.
The following deficiencies cannot be cured by
certification:
• Witness or assistant did not sign
• Upon arrival at the county board office, the
envelope is unsealed
• The envelope indicates the voter is requesting
a replacement ballot
If a county board receives a container-return envelope
with one of these deficiencies, county board staff
shall spoil the ballot and reissue a ballot along with
a notice explaining the county board office’s action,
in accordance with Section 3.
(Id. at 3-4.)4
Legislative Defendants agree with the October Revised
Memo’s changes as applied individually, and therefore “do not
request nullification of the [October] Revised Memo.” (Br. in
Supp. of Defendant-Intervenors’ Mot. for Clarification (“Leg.
Defs.’ Br.”) (Doc. 171) at 17.)5 Legislative Defendants do not
4 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.
5 Executive Defendants argue that Legislative Defendants
agreed to the changes to the guidance after this court’s order.
(Doc. 186 at 1.) Regardless of whether there was an agreement,
this court is not bound by it, and instead, is required to
follow the law. H.B. 1169 is the law and its requirements have
not been met by Executive Defendants’ guidance. Moreover,
Executive Defendants do not argue that Legislative Defendants
agreed to accept ballots completely lacking witness information
as described by Linda Devore and Mary Potter Summa. (Devore
Declaration (Doc. 171-5) at ¶¶ 5-7; Summa Declaration (Doc.
171-6) at ¶ 5.) This court does not construe the language “cured
by sending the voter a certification”, (October Revised Memo
contest that “[i]solated errors of any of the types listed in
the Second Revised Memo may reasonably be considered minor and
curable.” (Id.) However, new information came to light as
absentee ballots with illegible witness signatures were
allegedly cured without any witness name or address. Legislative
Defendants then moved this court for an order clarifying this
court’s injunction. Legislative Defendants now seek instruction
and clarification from this court on how the witness requirement
should be enforced where there are multiple errors, causing
potentially unwitnessed ballots to be cured. (Id. at 2-3.)
In support of their motion, Legislative Defendants
submitted the affidavit of Linda Devore, who states in relevant
part:
At our meeting, the County Board approved (over my
objection) 14 ballots with witness cure affidavits
despite the fact that the return envelope for those
ballots had no witness address at all (as opposed to
missing a zip code or other minor defect), no printed
witness name at all, and only a scratched mark,
initials, or some other illegible witness signature of
some sort in the place of the required witness
signature, making the witness anonymous.
. . . .
The 14 ballots contained in Ex. A. were accepted
despite the fact that the existence of an actual
witness (and thus compliance with the witness
(Doc. 171-3) at 3), to mean that none of the witness information
would be collected, nor does that language necessarily suggest
the certification would not require witness certification as
well.
requirement) is unknown, and despite the fact that any
alleged witness is completely anonymous. Should any of
these ballots be challenged or if the need arises to
investigate any of these ballots, it would be
impossible to contact the witness. The cure affidavits
submitted to correct the defects on the ballot-return
envelopes did not provide any of the missing
information and in no way would enable someone to know
who the witness actually was or to be able to contact
that witness should the need arise.
(Declaration of Linda Devore (“Devore Declaration”) (Doc. 171-5)
¶¶ 5, 7.) The affidavit of Mary Potter Summa, (“Summa
Declaration”) (Doc. 171-6)), contains similar allegations
regarding the Mecklenburg County Board of Elections - that is,
absentee ballots were approved and accepted despite missing
witness information. (See id. ¶ 5.)
This court subsequently entered its order granting
expedited consideration, (Doc. 175), and noted in that order the
following:
As this court made clear in its October order, the
“cure certification” originally presented to this
court, (Doc. 143-1 at 6), is entirely inappropriate to
“cure” a missing witness signature on a ballot. (See
Doc. 169 at 30-31.) While ballots with minor errors
may be remediable, the cure certification originally
presented to this court may have been inappropriate
even for resolving those curable witness errors.
(Id. at 3-4.)
The Executive Defendants responded with the declaration of
Katelyn Love, general counsel to the SBE. (Doc. 178.) Notably,
Ms. Love did not describe the cure process. Nor did she deny or
contradict the allegations of Ms. Devore and Ms. Summa that
ballots are being accepted and processed without the required
name and address of the witness.
This court therefore finds as a fact that under the
guidance and supervision of the SBE, county boards of elections
are accepting and processing absentee ballots after providing
notice and an opportunity to be heard, as well as a related cure
procedure, for ballots that do not include the statutorily
required name or address of the witness – and in some
circumstances, for ballots containing no information which might
enable direct identification of the witness. This court further
finds the local boards of elections are not collecting missing
witness information before accepting and processing these
ballots.
II. ANALYSIS
A. Due Process Protections
While the SBE has “general supervision over the primaries
and elections in the State, and it shall have authority to make
such reasonable rules and regulations with respect to the
conduct of primaries and elections as it may deem advisable[,]”
these rules may not “conflict with any provisions of [the
elections statutes].” N.C. Gen. Stat. § 163-22. The witness
requirement statute in H.B. 1169 very clearly details the
requirements for acceptance of an absentee ballot. To accept and
count an absentee ballot in a manner contrary to those
requirements violates state law. A “cure”, even if part of Due
Process, may not be used as a shield to avoid compliance with
state law which requires the presence of a witness at the
marking of a ballot.
This court has previously found that “the One-Witness
Requirement plays a key role in preventing voter fraud and
maintaining the integrity of elections.” (August Order (Doc.
124) at 99.) The statutory requirement of a witness’ name and
address may contribute in part to the deterrent effect on fraud
that the witness requirement creates. (See id. at 102 (noting
the witness requirement has a “deterrent effect” on fraud).)
Although this court agrees in large part with Legislative
Defendants’ arguments, this court does not believe that
Legislative Defendants’ requested relief is fully justified: the
fact that a signature is illegible does not necessarily mean the
ballot was not witnessed properly, nor does it necessarily mean
the ballot cannot be reviewed, investigated, and remediated
following notice and an opportunity to be heard. It is up to the
discretion of the county boards to determine in the first
instance whether a witness was present when the ballot was
marked.6 The proper avenue for challenging these determinations
appears to be through the statutorily enacted challenge
procedure in N.C. Gen. Stat. § 163-89. Based on the evidence
presented to this court, the SBE guidance to county boards
regarding which ballots must be spoiled for lack of a witness is
in compliance with this court’s finding of a Due Process right.
B. Cure Procedure
Although this court finds that the SBE’s guidance is in
compliance with Due Process, the evidence before this court
compels a finding that the cure procedure used does not comply
with state law. Though it is possible for additional identifying
information about the witness to be obtained via a “cure”
process without undermining the statutory requirements,
6 County boards are empowered to exercise discretion in
administering the election and effectuating the SBE’s guidance.
Under N.C. Gen. Stat. § 163-33, county boards of elections have
the power “[t]o make and issue such rules, regulations, and
instructions, not inconsistent with law, with directives
promulgated under the provisions of [N.C. Gen. Stat. §]
163-132.4, or with the rules, orders, and directives established
by the State Board of Elections, as it may deem necessary for
the guidance of election officers and voters.” Moreover, county
boards have their own procedures for the challenge and appeal of
absentee ballots under N.C. Gen. Stat. § 163-89. Any voter may
challenge an absentee ballot in his or her own precinct, and
“[a]ll challenges . . . shall be heard by the county board of
elections on the day set for the canvass of the returns.” N.C.
Gen. Stat. § 163-89(e).
following guidance from the SBE, the county boards do not appear
to be using such a cure procedure.
Based on the evidence presented to this court, the county
boards of elections are using a cure affidavit that does not
seek any witness information, even though the affidavit is being
used to cure missing witness information. (Devore Declaration
(Doc. 171-5) at ¶¶ 5-7; Summa Declaration (Doc. 171-6) at ¶ 6.)
Executive Defendants claim that “should further investigation be
necessary, the State or county board may contact the voter and
ask her to identify her witness[,]” yet apparently have not
included this procedure as part of the cure process to date.
(Doc. 177 at 10.) It is inconceivable to this court that, after
months of litigation, the SBE has implemented a cure procedure
that fails to comply with the express requirements of state law.
State law clearly requires that the county boards receive the
printed name, address, and signature of the witness. N.C. Sess.
Laws 2020-17 (H.B. 1169) § 1.(a).
Unfortunately, despite this court’s serious and substantial
concerns that the cure procedure used by the SBE does not comply
with the statutory requirements, Legislative Defendants’ motion
for clarification is an inappropriate vehicle to address such
concerns. Based on Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984), this court is prevented from ordering the
SBE, a state actor, to conform with state law within the
parameters of this case.
The Eleventh Amendment provides immunity to the states from
suit subject to several exceptions. Among these is the well-
recognized exception originally delineated in Ex parte Young,
209 U.S. 123 (1908), that “the Eleventh Amendment does not
preclude private individuals from bringing suit against State
officials for prospective injunctive or declaratory relief
designed to remedy ongoing violations of federal law.” Bragg v.
W. Va. Coal Ass’n, 248 F.3d 275, 292 (4th Cir. 2001).7
The Supreme Court has “strictly limited the application of
the Ex parte Young doctrine to circumstances in which injunctive
relief is necessary to ‘give[] life to the Supremacy Clause.’”
Id. (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). Because a
“federal court’s grant of relief against state officials on the
basis of state law . . . does not vindicate the supreme
authority of federal law,” Pennhurst, 465 U.S. at 106, the
Supreme Court has said that “it is difficult to think of a
greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to
7 Plaintiffs’ argument that they have an “interest in
ensuring that the federal courts do not exceed their
proper . . . role in resolving disputes” is not compelling.
(Doc. 187 at 8.)
state law.” Id. Accordingly, courts “must evaluate the degree to
which a State’s sovereign interest would be adversely affected
by a federal suit seeking injunctive relief against State
officials, as well as the extent to which federal, rather than
State, law must be enforced to vindicate the federal interest.”
Bragg, 248 F.3d at 293. Federal courts are prohibited from
directing state actors to implement state law in a particular
fashion under Pennhurst, absent a relevant federal claim to
justify the federal court’s involvement. Id. at 298.
Legislative Defendants argue that Pennhurst is
inapplicable, as the federal Due Process claim at issue in this
litigation is sufficient to justify the federal court’s
involvement. (Doc. 185.) They argue that Executive Defendants’
conduct not only violates state law, but also the Elections
Clause, and that this violation “cannot be bootstrapped into a
sovereign immunity defense for ongoing violations of the United
States Constitution.” (Id. at 2.) This case is an appropriate
vehicle to address Executive Defendants’ violation of federal
law, they argue, because “[n]o statewide cure process existed
until this Court ordered Executive Defendants to adopt one in
August.” (Id. at 3.)
This court disagrees. Although other courts have recently
rejected Pennhurst in other election litigation, see, e.g.,
Texas Democratic Party v. Abbott, 961 F.3d 389, 401 (5th Cir.
2020); Donald J. Trump for President, Inc. v. Bullock, No. CV
20-66-H-DLC, 2020 WL 5810556, at *5 (D. Mont. Sept. 30, 2020),
those cases involved federal constitutional claims not present
here. In Abbott, the complaint sought to “prevent the
enforcement of provisions of the Texas Election Code that the
plaintiffs believe[d] violate the Constitution.” 961 F.3d at
401. In Bullock, the complaint alleged that the Governor altered
the “time, place, and manner of Montana’s federal elections in
contravention of the United States Constitution.” 2020 WL
5810556, at *5. The claims contained in the second Amended
Complaint, (Doc. 30), do not relate to or address the “cure”
process at issue in this motion.
Here, the core claim in the litigation and the previously
entered injunctive relief centers around a finding of Due
Process rights during absentee voting, (id.), and to this point,
all relief provided has been focused on upholding the right to
notice and an opportunity to be heard, (Doc. 124; Doc. 169). To
the extent that this court has upheld the witness requirement
and delineated which ballots must be spoiled, as compared to
those that may be cured, this court has done so only to uphold
the core constitutional right at issue. Based on the evidence
before this court today, this court finds that the SBE’s
guidance regarding the eligibility of ballots to be cured, (Doc.
171-3), is in compliance with its prior orders in August, (Doc.
124), and October, (Doc. 169), because the witness requirement
is in place and notice and an opportunity to be heard is
provided to all voters.
The evidence presented regarding current SBE guidance is
sufficient for this court to find that the SBE is providing
adequate Due Process as required under federal law; having
determined that Due Process is satisfied, this court’s authority
to address the type and manner of a “cure” under state law, by
state actors, is limited by the absence of any federal claim
related to that issue in this case.
In the absence of a continuing federal violation, any order
by this court that the SBE conform their conduct with state laws
is precisely the conduct the Supreme Court forbids in Pennhurst.
See Bragg, 248 F.3d at 296-98. A state’s dignity interest in
protecting its sovereign immunity “does not fade into oblivion
merely because a State’s law is enacted to comport with a
federal invitation to regulate within certain parameters.” Id.
at 297. Though it frustrates this court, for the reasons stated
earlier and those also cited by Justice Gorsuch and Judges
Wilkinson and Agee, Moore v. Circosta, ____ S. Ct. ____, 2020 WL
6305036 (U.S. Oct. 28, 2020); Wise v. Circosta, No. 20-2104,
2020 WL 6156302, at *9 (4th Cir. Oct. 20, 2020) (en banc)
(Wilkinson and Agee, joined by Niemeyer, JJ., dissenting), that
the SBE seems to be permitting county boards to accept and
process ballots for counting without ever obtaining the
information required by statute, the basis of any injunction
this court might issue here would not be grounded in a federal
Due Process violation.
On the facts and claims before this court at this time,
Pennhurst appears to counsel that these issues are matters for
the state and state courts to address. For these reasons, this
court will decline to order any additional relief or to provide
any additional clarification in this case.
III. CONCLUSION
For the aforementioned reasons,
IT IS THEREFORE ORDERED that Legislative Defendants’ Motion
for Clarification, (Doc. 170), is DENIED.
This the 30th day of October, 2020.
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