NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE v. THE NORTH CAROLINA STATE BOARD OF ELECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINA A. PHILIP )

RANDOLPH INSTITUTE and )

ACTION NC, )

)

Plaintiffs, )

)

v. )

)

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 ) 1:20CV876

OF THE STATE BOARD OF )

ELECTIONS ; JEFF CARMON, III, 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; and )

JOSH STEIN, in his official capacity as )

ATTORNEY GENERAL OF THE )

STATE OF NORTH CAROLINA, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs North Carolina A. Phillip Randolph

Institute (“NC APRI”) and Action NC (collectively “Plaintiffs”) Motion for Preliminary

injunction (Docket Entry 2)1 pursuant to Federal Rule of Civil Procedure 65(a)(1). Defendants

1 All citations in this recommendation 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.

the North Carolina State Board of Elections (“NCSBE”), Damon Circosta, Stella Anderson,

Jeff Carmon, III, Karen Brinson Bell (collectively “NCSBE Defendants”), and North Carolina

Attorney General Josh Stein (collectively “Defendants”) have filed a response to the motion.

(Docket Entry 16.) Plaintiffs thereafter filed a reply. (Docket Entry 20.) The Court ordered

a hearing on the matter on October 22, 2020 regarding Plaintiffs’ Motion for Preliminary

Injunction. (Minute Entry dated 10/22/2020.) For the following reasons, the Court

recommends that the motion be denied.

I. BACKGROUND

On September 24, 2020, Plaintiffs commenced this action against Defendants alleging

that N.C. Gen. Stat. § 163-275(5) (sometimes referred herein as “the challenged statute”) is

unconstitutional under two theories: (1) the statute is void for vagueness in violation of the

Due Process Clause of the Fourteenth Amendment; and (2) the statute constitutes intentional

racial discrimination in violation of the Equal Protection Clause of the Fourteenth

Amendment. (See generally, Complaint, Docket Entry 1.) Plaintiffs simultaneously filed the

instant Motion for Preliminary Injunction. (Docket Entry 2.)

A. Parties

Plaintiffs are nonprofit, nonpartisan organizations whose missions are, in part, to

increase voter participation among Black communities in North Carolina. (Compl. ¶¶ 15-16.)

NCSBE Defendants administer and investigate violations of North Carolina election laws. (Id.

¶¶ 17-21.) Defendant Josh Stein, the North Carolina Attorney General (“AG”), is statutorily

authorized to receive reports of “violations of the election laws” from the NCSBE “for further

investigation and prosecution.” (Id. ¶ 22 (citing N.C. Gen. Stat. § 163-22(d))). The AG is also

statutorily required “[t]o consult with and advise” the State’s District Attorneys “when

requested by them, in all matters pertaining to the duties of their office.” (Id. ¶ 22 (citing N.C.

Gen. Stat. § 114-2(4))). Moreover, the AG may authorize attorneys in the Special Prosecution

Division of the Office of the Attorney General “to prosecute or assist in the prosecution of

criminal cases when requested to do so by a district attorney.” (Id. ¶ 22 (citing N.C. Gen. Stat.

§ 114-11.6.))

B. Construction of N.C. Gen. Stat. § 163-275(5)

Under the North Carolina Constitution, a person convicted of a felony cannot vote

“unless that person shall be first restored to the rights of citizenship in the manner prescribed

by law.” N.C. Const. art. VI, § 2(3). This provision is enforced through N.C. Gen. Stat. § 163-

275(5), which makes it a Class I felony “[f]or any person convicted of a crime which excludes

the person from the right of suffrage, to vote at any primary or election without having been

restored to the right of citizenship in due course and by the method provided by law.” N.C.

Gen. Stat. § 163-275(5). A separate statute describes what constitutes a restoration of the

rights of citizenship. See N.C. Gen. Stat. § 13-1. This statute (“Citizenship Restoration Law”)

restores the rights of citizenship automatically upon the occurrence of any of the following

conditions:

(1) The unconditional discharge of an inmate, of a probationer,

or of a parolee by the agency of the State having jurisdiction of

that person or of a defendant under a suspended sentence by the

court. . . .

(4) With regard to any person convicted of a crime against the

United States, the unconditional discharge of such person by the

agency of the United States having jurisdiction of such person

. . . .

(5) With regard to any person convicted of a crime in another

state, the unconditional discharge of such person by the agency

of that state having jurisdiction of such person . . . .

Id. (emphases added).

The term “unconditional discharge” is not defined in this statute nor is it defined in

any other North Carolina statute. In a recent North Carolina state court action challenging

the Citizenship Restoration Law, the Wake County Superior Court interpreted the Citizenship

Restoration Law to “preclude[ ] the restoration of citizenship rights until the completion of

the sentence, including any period of parole, post-release supervision or probation.”

(Summary Judgment Order, Comty. Success Initiative v. Moore, No. 19-CVS-15941 (N.C. Super.

Ct. Sept. 4, 2020), Ex. 13 to Pls.’ Br., Docket Entry 3-13 at 6.)

C. Historical Background of N.C. Gen. § Stat. 163-275(5)

Plaintiffs’ Complaint avers that North Carolina’s history of racism, including the large-

scale disenfranchisement of Black residents, is undisputed. Between 1875 and 1877, the North

Carolina legislature amended the North Carolina Constitution and enacted the first iteration

of N.C. Gen. Stat. § 163-275(5) with the goal of disproportionally impacting Black individuals.

(Compl. ¶¶ 27-28; Centennial Article, Ex. 15 to Pls.’ Br., Docket Entry 3-15.) The 1877

version of N.C. Gen. Stat. § 163-275(5) made it illegal for a released felon to vote without

having been legally restored to the rights of citizenship. (Ex. 17 to Pls.’ Br., Docket Entry 3-

17.) In 1899, the State legislature reenacted the 1877 version of the challenged statute almost

verbatim, (1899 Session Law Provisions at Ch. 507 § 72, Ex. 19 to Pls.’ Br., Docket Entry 3-

19), with the goal of “rescu[ing] the white people . . . from the curse of negro domination.”

(Compl. ¶¶ 32, 34-35; 1898 Democratic Party Handbook, Ex. 18 to Pls.’ Br., Docket Entry 3-

18 at 20.)

In 1931, the State legislature again reenacted the challenged statute, retaining strict

felony-level criminal liability for voting after a felony conviction before their citizenship

restoration. (Compl. ¶ 38; 1931 Session Law Provisions at Ch. 348 § 10(5), Ex. 21, Docket

Entry 3-21.) Since 1931, the State legislature has essentially changed just one word in the

challenged statute,2 leaving the remainder of it unchanged. (Compl. ¶ 41.) Today, as Plaintiffs

claim, the challenged statute is virtually the only election crime punishable as a Class I felony

that does not require any fraudulent intent. (Id. ¶ 43; see, e.g., N.C. Gen. Stat. §§ 163-275(1, 3-

4, 7-9).)

D. Prosecutions Stemming from the 2016 Election Audit

Following the 2016 presidential election, sixteen individuals were prosecuted under

N.C. Gen. Stat. § 163-275(5). (Compl. ¶¶ 4, 47-50, 53.) Thirteen of those prosecuted are

Black. (Id. ¶ 4.) The NCSBE’s audit of the election determined that 441 individuals with

felony convictions may have voted before their sentences were completed. (Id. ¶ 47; Post-

Election Audit Report, Ex. 2 to Compl., Docket Entry 1-2 at 5.) Of that total, 68% were

Black. (Compl. ¶ 47; Post-Election Audit Report Racial Breakdown, Ex. 4 to Compl., Docket

2 The legislature changed the word from “him” to “the person”:

It shall be unlawful: . . . For any person convicted of a crime which

excludes him the person from the right of suffrage, to vote at any

primary or election without having been restored to the right of

citizenship in due course and by the method provided by law.

N.C. Gen. Stat. § 163-275(5) (edited to reflect changes from 1931 version).

Entry 1-4 at 2.) As required by N.C. Gen. Stat. § 163-22(d), the NCSBE referred the cases to

the State district attorneys (“DAs”). (Compl. ¶ 48; August 12, 2018 NCSBE Letter, Ex. 3 to

Compl., Docket Entry 1-3.) A majority of the district attorneys chose not to bring charges

due to a lack of evidence that felon individuals were ever notified of their ineligibility to vote.

(Compl. ¶ 49; August 9, 2017 NCSBE Letter, Ex. 5 to Compl., Docket Entry 1-5 at 1-2.)

However, in 2018, the district attorney of Alamance County charged twelve individuals with

violating N.C. Gen. Stat. § 163-275(5). (Compl. ¶ 50.) Nine of the twelve individuals charged

were Black. (Id.) In 2019, the district attorney of Hoke County charged four individuals, all

Black, with violating the same statute. (Id. ¶ 53.) Most of the individuals charged had no

intent to violate the statute, and were in fact, unaware of it. (Id. ¶¶ 50-51, 54.) Plaintiffs further

allege that some of the individuals charged with a violation of the challenged statute expressed

“a deep-seated fear of voting in the future.” (Id. ¶¶ 56-59.)

E. The Wake County Superior Court Preliminary Injunction

A recent ruling in the Wake County Superior Court action challenging the Citizenship

Restoration Law temporarily enjoined the NCSBE and other state defendants “from

preventing a person convicted of a felony from registering to vote and exercising their right

to vote if that person’s only remaining barrier” to the completion of their sentence “is the

payment of a monetary amount.” (Preliminary Injunction Order, Moore, Ex. 13 to Pls.’ Br.,

Docket Entry 3-14 at 11.)

However, the Superior Court’s preliminary injunction did not cover “persons

convicted of a felony who are no longer incarcerated,” but are subject to probation, parole, or

post-release supervision. (Id. at 10.) Despite this injunction, however, Plaintiffs allege that

“individuals with only outstanding financial obligations in connection with a felony conviction

might and indeed will opt not to vote because of the fear of criminal prosecution under [N.C.

Gen. Stat. § 163-275(5)].” (Compl. ¶ 5.)

F. Plaintiffs’ Claims

In the instant case, Plaintiffs assert to claims: (1) the challenged statute is void for

vagueness in violation of the Due Process Clause of the Fourteenth Amendment; and (2) the

challenged statute violates the Equal Protection Clause of the Fourteenth Amendment because

it was originally enacted with racially discriminatory intent, its key features have never been

substantively amended, and it continues to disproportionately impact Black North Carolinians.

(Compl. ¶¶ 98-115.) Plaintiffs seek a declaration that N.C. Gen. Stat. § 163-275(5) is

unconstitutional and to enjoin Defendants from enforcing the Strict Liability Voting Law.

(Compl. ¶ 8.)

II. DISCUSSION

Plaintiffs seek a preliminary injunction enjoining Defendants from enforcing N.C. Gen.

Stat. § 163-275(5). (Docket Entry 2.) As a preliminary matter, Defendants raise Article III

standing and Eleventh Amendment immunity arguments invoking inquiries into this Court’s

jurisdiction over this action. More specifically, Defendants argue that Plaintiffs lack standing

to seek a preliminary injunction regarding the enforcement of N.C. Gen. Stat. § 163-275(5)

because Plaintiffs have not suffered any injury-in-fact, have not alleged a risk of injury traceable

to Defendants, and have not proposed a remedy to address the alleged injuries. (Docket Entry

16 at 13-16.) Defendants also argue that this action is barred under the Eleventh Amendment.

(Id. at 5-12.) For the reasons stated herein, the Court concludes that Plaintiffs lack standing

to bring this suit against the AG. However, the NCSBE are proper parties to this action as

explained below.

Standing

Federal district courts exercise limited jurisdiction in that the court “possess only the

jurisdiction authorized . . . by the United States Constitution and by federal statute.” United

States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). Article III of the United States

Constitution outlines the federal court’s jurisdictional limits, which implicates certain doctrines

including standing and ripeness. See U.S. Const. art. III, § 2; Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 & n.5 (2014). For any case or controversy to be justiciable in federal court,

a plaintiff must allege “such a personal stake in the outcome of the controversy as to warrant

his invocation of federal court jurisdiction and to justify exercise of the court’s remedial

powers on his behalf.” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005)

(quoting Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 789 (4th Cir. 2004)). Article III

standing is “an integral component of the case or controversy requirement.” CGM, LLC v.

BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011) (quoting Miller v. Brown, 462 F.3d 312,

316 (4th Cir. 2006)).

The burden of satisfying Article III’s standing requirement lies with the party seeking

to invoke the federal court’s jurisdiction. Miller, 462 F.3d at 316. To establish constitutional

standing, “(1) the plaintiff is required to have sustained an injury in fact; which (2) must be

causally connected to the complained-of conduct undertaken by the defendant; and (3) will

likely be redressed if the plaintiff prevails.” Libertarian Party of Virginia v. Judd, 718 F.3d 308,

313 (4th Cir. 2013). The Court address each of these factors in turn.

1. Injury-In-Fact

Injury-in-fact, the first component of standing, requires Plaintiffs to allege an actual or

threatened injury. Valley Forge Christian Coll. v. Americans United for Separation of Church & State,

Inc., 454 U.S. 464, 472 (1982). Defendants contend that Plaintiffs cannot establish injury in

fact because the harm to Plaintiffs is “too attenuated to support standing.” (Docket Entry 16

at 14). Plaintiffs NC APRI and Action NC are both organizations. (See Compl. ¶¶ 15-16.)

Organizations may establish standing to bring suit on their own behalf and for injuries on

behalf of their members. See White Tail Park, 413 F.3d at 458. To bring suit on its own behalf

an organization must meet the same standing requirements that apply to individuals. See S.

Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 182 (4th

Cir. 2013). “The Supreme Court has held that if a defendant's practices have hampered an

organization’s stated objectives causing the organization to divert its resources as a result, then

‘there can be no question that the organization has suffered injury in fact.’ ” Action NC v.

Strach, 216 F. Supp. 3d 597, 616 (M.D.N.C. 2016) (quoting Havens Realty Corp. v. Coleman, 455

U.S. 363, 379 (1982)); see also Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (“An organization

may suffer an injury in fact when a defendant’s actions impede its efforts to carry out its

mission.”).

The Complaint alleges that the “specter of prosecution” under N.C. Gen. Stat.

§ 163-275(5) has hindered Plaintiffs’ ability to carry out their missions. (See Compl. ¶ 6.)

More specifically, Plaintiff NC APRI alleges that

To advance its core mission of advancing racial equality, NC

APRI works to increase access to the polls, voter registration and

voter education, particularly among working class African

Americans . . . [N.C. Gen. Stat. § 163-275(5)] has substantially

impeded the NC APRI’s ability to carry out its mission with

respect to Black community members with criminal convictions.

NC-APRI has had difficulty persuading eligible Black individuals

with criminal convictions to register to vote and vote, because of

their fear of prosecution under [N.C. Gen. Stat. § 163-275(5)].

(Compl. ¶ 15). Additionally, Plaintiff NC APRI attested that it has “diverted substantial time

and resources” from its general voter registration and get-out-the vote activities to educating

individuals with prior convictions. (Melvin Montford Declaration ¶ 11, Docket Entry 3-22.)

Similarly, Plaintiff Action NC alleges that

As part of its mission of community engagement and

empowerment, Action NC is committed to increasing voter

participation in North Carolina’s low-income communities . . . .

[N.C. Gen. Stat. § 163-275(5)] has substantially impeded the

Action NC’s ability to carry out its mission with respect to

community members with criminal convictions. Action NC has

had difficulty persuading eligible North Carolina residents with

criminal convictions to register to vote and vote, because of their

fear of prosecution under [N.C. Gen. Stat. § 163-275(5)].

(Compl. ¶ 16). Plaintiff Action NC has further attested that it “has diverted substantial time

and resources from its voter registration and get-out-the-vote activities to reassure eligible

individuals that voting will not lead to criminal prosecution.” (Pat McCoy Declaration ¶ 10,

Docket Entry 3-23.) Accordingly, because Plaintiffs’ efforts to carry out their missions have

been impeded, and because they have both been forced to divert resources to address fears

surrounding the enforcement of N.C. Gen. Stat. § 163-275(5), the Court finds that Plaintiffs

have established organizational injury for the purposes of standing. See Democracy N. Carolina

v. N. Carolina State Bd. of Elections, No. 1:20CV457, 2020 WL 4484063, at *12-14 M.D.N.C.

Aug. 4, 2020) (unpublished).

2. Traceability

Defendants next argue that Plaintiffs do not meet the standing requirements because

“they cannot show that the injury they complain of is traceable to an action by these

Defendants.” (Docket Entry 16 at 15). The causation element of standing requires “a causal

connection between the injury and the conduct complained of[.]” Cooksey v. Futrell, 721 F.3d

226, 234 (4th Cir. 2013). Furthermore, “the injury has to be fairly traceable to the challenged

action of the defendant, and not the result of the independent action of some third party not

before the court.” Id. at 234-35. However, “the defendant’s conduct need not be the last link

in the causal chain[.]” Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199, 212 (4th Cir. 2020), as

amended (Aug. 31, 2020). Rather, there must be a “genuine nexus” between the defendant’s

conduct and the plaintiff’s injury. Kadel v. Folwell, 446 F. Supp. 3d 1, 10 (M.D.N.C. 2020)

(citing Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000)).

Here, there is clearly a causal connection between Plaintiffs’ injury and the challenged

actions of the NCSBE Defendants. Following the 2016 presidential election, the NCSBE

Defendants conducted an audit pursuant to their statutory duties under N.C. Gen. Stat. § 163-

22(d) and referred the violations of N.C. Gen. Stat. § 163-275(5) they found to the state district

attorneys. (See Compl. ¶ 48; see also Post-Election Audit Report, Ex. 2 to Compl., Docket

Entry 1-2 at 5 (“Investigators have begun referring investigation reports regarding felons to

local prosecutors.”); August 12, 2018 NCSBE Letter, Ex. 3 to Compl., Docket Entry 1-3 (letter

referring violations of N.C. Gen. Stat. § 163-275(5) to the Hoke County District Attorney).)

Those investigations and referrals by the NCSBE resulted in the filing of criminal charges

under N.C. Gen. Stat. § 163-275(5) in 2018 for twelve individuals in Alamance County and in

2019 for four individuals in Hoke County. (See Compl. ¶¶ 47-53.) Plaintiffs allege that these

prosecutions, and the media attention they received, have made even eligible voters fearful of

casting ballots, thus impeding Plaintiffs’ ability to carry out their missions. (See Compl. ¶¶ 4,

15-16.) Though NCSBE’s actions did not constitute the “last link in the causal chain,” see

Maryland Shall Issue, 971 F.3d at 212, they appear to have initiated the causal chain that resulted

in Plaintiff’s injuries, which is a sufficiently genuine nexus between NCSBE’s conduct and

Plaintiffs’ injuries. Thus, traceability is established as to the NCSBE Defendants for the

purposes of standing.

The Court, however, reaches a different conclusion as to the AG Defendant. Plaintiffs

have failed to show any connection between the AG and the prosecutions they assert caused

their injuries. The AG does have general prosecutorial authority, including an obligation to

represent the State in criminal appeals, and advisory and consultative duties to the State district

attorneys and the NCSBE. See N.C. Gen. Stat. §§ 114-2, 114-11.6, 163-22(d). However, there

are no allegations nor is there evidence that the AG has ever prosecuted or threatened to

prosecute under N.C. Gen. Stat. § 163-275(5). In fact, it is the State district attorneys that

have been conferred specific statutory authority to prosecute under N.C. Gen. Stat. § 163-

275(5). See N.C. Gen. Stat. § 163-278 (“The district attorney shall initiate prosecution and

prosecute any violations of this Article [to include the challenged statute].”)3

3 To the extent applicable, the North Carolina courts have recognized that “[w]hen two statutes

regulate the same conduct, it is well-established that the statute ‘special and particular shall control

over the statute general in nature . . . unless it clearly appears that the legislature intended the general

statute to control.’ ” Bush v. Nat’l Union Fire Ins. Co. of Pittsburgh, 124 F. Supp. 3d 642, 654 n.16

(E.D.N.C. 2015) (quoting Trustees of Rowan Tech. College v. J. Hyatt Hammond Assocs., Inc., 313 N.C. 230,

238, 328 S.E.2d 274 (1985)).

The AG further contends that “it appears [its] office has never been called upon to

defend a conviction under [the challenged statute], has never issued an Attorney General

Opinion on this statute pursuant to N.C.G.S. § 114-2(5), and is unaware of any instance of

being requested to prosecute this violation pursuant to N.C.G.S. § 114-11.6.” (Docket Entry

16 at 3.) Plaintiffs cite no evidence to the contrary, but instead argue that traceability is met

because the AG has not disclaimed any intent to enforce the challenged statute. (Docket Entry

20 at 14.) While it is true that traceability may be established when a plaintiff faces a credible

threat of prosecution under the challenged criminal statute, Plaintiffs, as organizations, face

no such threat. Cf. N. Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999)

(“When a plaintiff faces a credible threat of prosecution under a criminal statute he has

standing to mount a pre-enforcement challenge to that statute.”); see also Driehaus, 573 U.S. at

161-66 (finding standing established where a plaintiff seeks to engage in conduct prohibited

by the challenged statute, the state has prosecuted individuals in the past, and the state has not

disavowed future prosecution).

The undersigned concludes the conduct alleged here is not fairly traceable to the AG.

Plaintiffs’ Complaint alleges specific actions of the NCSBE Defendants as well as the district

attorneys of Alamance and Hoke Counties. (See Compl. ¶¶ 47-53.) However, none of such

conduct establishes a causal connection between Plaintiffs’ injuries and the conduct of the

AG. As such, the traceability requirement is not met as to the AG Defendant. See NC RSOL

v. Boone, 402 F. Supp. 3d 240, 254 (M.D.N.C. 2019) (“Had Plaintiffs alleged that the district

attorneys actually instructed the North Carolina Attorney General’s office to investigate or

prosecute . . . for a potential violation of [the relevant statute] this injury would be fairly

traceable to both the directing district attorney and the Attorney General’s office[.]”).

3. Redressability

Finally, Defendants argue that Plaintiffs do not have standing because the injunction

Plaintiffs seek does not redress their alleged injuries. (Docket Entry 16 at 16.) Having ended

the standing inquiry for the AG Defendant, the Court will address redressability solely as to

the NCSBE Defendants. Redressability is satisfied “where there is a non-speculative

likelihood that the injury would be redressed by a favorable judicial decision.” Cooksey, 721

F.3d at 238 (internal quotations and citation omitted). The Fourth Circuit has recognized that

a plaintiff “need not show that a favorable decision will relieve [their] every injury.” Sierra Club

v. United States Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018) (citing

Larson v. Valente, 456 U.S. 228, 242-44 & n.15 (1982)). Instead, Plaintiffs here “need only

show that they ‘personally would benefit in a tangible way from the court’s intervention.’ ” Id.

(quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 162 (4th Cir.

2000) (en banc)). See also Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 190 (4th Cir. 2018)

(same).

Here, enjoining the NCSBE Defendants from enforcement of the challenged statute

would necessarily prohibit them from investigating or referring for prosecutions any violation

of the statute. While Defendants argue that an injunction here may not interfere with the non-

party State district attorneys’ ability to initiate prosecution under N.C. Gen. Stat. § 163-275(5),

there can be no question that enjoining the NCSBE Defendants would be a tangible benefit

to Plaintiffs. Indeed, “[t]he removal of even one obstacle to the exercise of one’s rights, even

if other barriers remain, is sufficient to show redressability.” Sierra Club, 899 F.3d at 285.

Thus, redressability is satisfied as to the NCSBE Defendants for the purposes of standing.

Eleventh Amendment Immunity

Defendants also contend that they are immune from suit pursuant to the Eleventh

Amendment. (Docket Entry 16 at 5-12.) Pursuant to the Eleventh Amendment, sovereign

immunity prohibits actions in federal court by individuals against a state unless the state has

consented to suit or unless Congress has lawfully abrogated the states’ Eleventh Amendment

immunity. Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003). “[U]nder the Eleventh

Amendment, a State cannot be sued directly in its own name regardless of the relief sought,

absent consent or permissible congressional abrogation.” Id. (internal quotation omitted).

The doctrine of sovereign immunity under the Eleventh Amendment applies not only to

actions in which the State is a named defendant, but also to actions against its departments,

institutions, and agencies. DeMurry v. N.C. Dep’t of Corr., 195 N.C. App. 485, 492-93, 673

S.E.2d 374, 380-81 (2009). Additionally, in North Carolina, “[a]ctions against officers of the

State in their official capacities are actions against the State for the purposes of applying the

doctrine of [sovereign] immunity.” Green v. Kearney, 203 N.C. App. 260, 268, 690 S.E.2d 755,

762 (2010) (citation omitted); see also Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 725

(1998) (“[O]fficial-capacity suits are merely another way of pleading an action against the

governmental entity.”).

The general rule notwithstanding, “[t]he doctrine of Ex parte Young provides an

exception to Eleventh Amendment immunity where suit is brought against state officials in

their official capacities and “(1) the violation for which relief is sought is an ongoing one, and

(2) the relief sought is only prospective.” Al-Deen v. Trustees of Univ. N.C., Wilmington, 102 F.

Supp. 3d 758, 764-65 (E.D.N.C. 2015) (internal citations omitted) (quoting Ex Parte Young,

209 U.S. 123, 159-60 (1908); Republic of Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998)).

However, “the exception does not permit federal courts to entertain claims seeking

retrospective relief, either compensatory or other, for completed, not presently ongoing

violations of federally protected rights.” Id. To determine whether the Ex parte Young

exception applies, the Court “need only conduct a straightforward inquiry into whether the

complaint [(1)] alleges an ongoing violation of federal law and [(2)] seeks relief properly

characterized as prospective.” Constantine v. Rectors & Visitors George Mason Univ., 411 F.3d 474,

496 (4th Cir. 2005) (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n Md., 535 U.S. 635, 645

(2002)). “The requirement that the violation of federal law be ongoing is satisfied when a state

officer’s enforcement of an allegedly unconstitutional state law is threatened, even if the threat

is not yet imminent.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330 (4th Cir. 2001).

Here, Plaintiffs are seeking prospective relief and have alleged that N.C. Gen. Stat.

§ 163-275(5) is unconstitutional. Defendants argue that they are improper parties in this

action. “Ex parte Young requires a ‘special relation’ between the state officer sued and the

challenged statute to avoid the Eleventh Amendment’s bar.” Waste Mgmt., 252 F.3d at 331.

This “special relation” “requires proximity to and responsibility for the challenged state

action.” Wright v. North Carolina, 787 F.3d 256, 261-62 (4th Cir. 2015) (quotation omitted).

The NCSBE Defendants are proper parties to this action. The NCSBE is statutorily

empowered to investigate violations of N.C. Gen. Stat. § 163-275(5). See N.C. Gen. Stat. §§

163-22(d), 163-278. The NCSBE is also “authorized and empowered to subpoena and compel

the attendance of any person before them for the purpose of making such

investigation.” N.C. Gen. Stat. § 163-278. Finally, North Carolina statute requires the

NCSBE to refer the results of its investigations for prosecution. See N.C. Gen. Stat. §§ 163-

22(d), 163-278. As Plaintiffs alleged in the Complaint, following the 2016 election audit, the

NCSBE determined that “441 individuals with felony convictions may have voted,” (see

Compl. ¶ 47), and thereafter provided such information to the State district attorneys for

further investigation and potential prosecutions under N.C. Gen. Stat. § 163-275(5). (See Post-

Election Audit Report, Ex. 2 to Compl., Docket Entry 2-1.) This conduct on the part of the

NCSBE, and the statutory authority given to them, sufficiently established a connection

required to invoke the Ex parte Young exception.

Preliminary Injunction

A party seeking a preliminary injunction must establish all four of the following

elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in

the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an

injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7,

20 (2008); see also The Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346-47

(4th Cir. 2009), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th

Cir. 1977).4 “Satisfying these four factors is a high bar, as it should be.” SAS Inst., Inc. v. World

Programming Ltd., 874 F.3d 370, 385 (4th Cir. 2017), cert. denied, 139 S. Ct. 67 (2018).

4 The original decision in Real Truth was vacated by the Supreme Court for further consideration in

light of Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). However, the Fourth Circuit

reissued its opinion on Parts I and II of its earlier opinion in the case, 575 F.3d at 345-47, stating the

facts and articulating the standard for issuance of a preliminary injunction, before remanding it to the

A party must make a clear showing that he is likely to succeed on the merits of his

claim. Winter, 555 U.S. at 20; Real Truth, 575 F.3d at 345-46. Similarly, he must make a clear

showing that he is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at

20-22; Real Truth, 575 F.3d at 347. Only then does the court consider whether the balance of

equities tips in the favor of the party seeking the injunction. See Real Truth, 575 F.3d at 346-

47. Finally, the court must pay particular regard to the impact of the extraordinary relief of

an injunction upon the public interest. Real Truth, 575 F.3d at 347 (quoting Winter, 555 U.S.

at 23-24). Injunctive relief, such as the issuance of a preliminary injunction, is an extraordinary

remedy that may be awarded only upon a clear showing that the plaintiff is entitled to such

relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); see also MicroStrategy Inc. v. Motorola, Inc.,

245 F.3d 335, 339 (4th Cir. 2001) (citation and quotation omitted) (a preliminary injunction is

an “extraordinary remed[y] involving the exercise of very far-reaching power to be granted

only sparingly and in limited circumstances”).

1. Irreparable Harm

A preliminary injunction analysis generally begins with the inquiry of whether Plaintiffs

are likely to succeed on the merits of their claim. However, the Court concludes that it is

unnecessary to address that factor of the Winter test as Plaintiffs have failed to demonstrate

irreparable harm absent the requested injunctive relief. Plaintiffs contend that they “will suffer

irreparable harm unless this Court enjoins the enforcement of the [challenged statute] before

the registration window closes for the November 3, 2020 general election.” (Docket Entry 3

district court for consideration in light of Citizens United. See Real Truth About Obama, Inc. v. Fed. Election

Comm’n, 607 F.3d 355 (4th Cir. 2010).

at 26.) Defendants, on the other hand, insist that Plaintiffs “have failed to demonstrate even

the possibility of some remote future of harm caused by Defendants” and that, even if the

Court does enjoin Defendants from enforcing the challenged statute, “[t]he alleged fear of

prosecution would continue unabated” because the district attorneys are not parties to this

case. (Docket Entry 16 at 20.)

To establish irreparable harm, “a party must establish that (1) the harm is certain and

great, actual and not theoretical, and so imminen[t] that there is a clear and present need for

equitable relief; and (2) that, once incurred, the threatened harm would be beyond

remediation.” N. Carolina State Conference of NAACP v. Cooper, 430 F. Supp. 3d 15, 51

(M.D.N.C. 2019) (internal quotations omitted). As further explained below, the Court finds

that Plaintiffs have not established a harm so imminent that there is a present and immediate

need for preliminary relief.

Courts have found that delaying the pursuit of legal redress may undermine allegations

of irreparable harm.5 See Jewell, 2013 WL 6188998, at *9 (“Plaintiffs also undermined their

own argument of ‘irreparable harm’ due to the dilatory manner in which they pursued legal

redress.”); Quince Orchard, 872 F.2d at 80 (internal quotations and citation omitted) (“Although

a particular period of delay may not . . . bar a permanent injunction, it may still indicate an

absence of the kind of irreparable harm required to support a preliminary injunction.”);

5 As in the case of Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989),

courts most often consider delay when balancing the hardships of the parties. However, delay has

been considered in the inquiry of irreparable harm. See e.g., Turn & Bank Holdings, LLC v. Avco Corp.,

No. 1:19-CV-503, 2019 WL 4773667, at *11 (M.D.N.C. Sept. 30, 2019) (unpublished); Eagle On All.

v. Jewell, No. 2:13CV371, 2013 WL 6188998, at *9 (E.D. Va. Nov. 22, 2013) (unpublished); Majorica,

S.A. v. R.H. Macy & Co., 762 F.2d 7, 8 (2d Cir. 1985).

Majorica, 762 F.2d at 8 (“Lack of diligence, standing alone, may, however, preclude the granting

of preliminary injunctive relief, because it goes primarily to the issue of irreparable harm rather

than occasioned prejudice.”). The challenged statute has essentially been unchanged since

1931 and a source of Plaintiffs’ claims rest on prosecutions that occurred in 2018 and 2019,

respectively. (See Compl. ¶¶ 41, 50, 53.) However, Plaintiffs delayed filing this action and

request for injunctive relief until September 24, 2020, mere weeks before the North Carolina

voter registration deadlines and the 2020 election. Considering both the delay in Plaintiffs’

filing of this action and the fact that the election has now passed, the circumstances simply do

not support the kind of irreparable harm required to support a preliminary injunction.

Without question, the undersigned recognizes the high stakes of the November 2020

election. But it will not be the last. Plaintiffs efforts to “encourag[e] broad political

participation by members of Black and low-income communities in North Carolina” (Docket

Entry 3 at 25) will be relevant to all upcoming elections. However, prior to future elections,

this Court, through the progression of this action, will have the opportunity to adequately

delve into the constitutionality of N.C. Gen. Stat. § 163-275(5). As such, a preliminary

injunction is not warranted at this time.

III. CONCLUSION

In sum, the undersigned concludes that Plaintiffs have established Article III standing

necessary to confer this Court’s limited jurisdiction over this action. However, the AG

Defendant should be dismissed. Moreover, because Plaintiffs have failed to demonstrate

irreparable harm, their motion for preliminary injunction should be denied. Accordingly,

IT IS HEREBY RECOMMENDED hat Plaintiffs’ Motion for Preliminary

Injunction (Docket Entry 2) be DENIED and that North Carolina Attorney General Josh

Stein be DISMISSED from this action.

United States Magistrate Judge

November 4, 2020

Durham, North Carolina

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