DEMOCRACY NORTH CAROLINA v. NORTH CAROLINA STATE BOARD OF ELECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, )

THE LEAGUE OF WOMEN VOTERS OF )

NORTH CAROLINA, JOHN P. CLARK, )

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, STACY EGGERS IV, )

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, TOMMY TUCKER, in his )

official capacity as MEMBER OF )

THE STATE BOARD OF ELECTIONS, )

and KAREN BRINSON BELL, in her )

official capacity as EXECUTIVE )

DIRECTOR OF THE STATE BOARD OF )

ELECTIONS, )

)

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

This matter comes before the court on Defendant-Intervenors

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

Defendants”) Motion to Dismiss Plaintiffs’ Fourth Amended

Complaint, (Doc. 209), and Defendants the North Carolina State

Board of Elections (“State BoE”), Damon Circosta, Stella

Anderson, Stacy Eggers IV, Jeff Carmon III, Tommy Tucker, and

Karen Brinson Bell’s (together, “State Board Defendants”) Motion

to Dismiss, (Doc. 211). For the reasons that follow, this court

will grant in part and deny in part the motions.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs originally brought this suit in May 2020 in

anticipation of the 2020 general election, alleging “North

Carolina’s election code impose[d] numerous restrictions” on

voting “that, in light of the COVID-19 pandemic, unduly

burden[ed] Plaintiffs’ right to vote in violation of the First

and Fourteenth Amendments.” (Compl. (Doc. 1) ¶ 3.)1 Plaintiffs

have amended their complaint several times during this

litigation, (First Am. Compl. (Doc. 8); Second Am. Compl.

(Doc. 30); Third Am. Compl. (Doc. 192)), and have now filed a

Fourth Amended Complaint, (Fourth Am. Compl. (Doc. 208)),

challenging North Carolina’s laws against requesting, marking

and completing, and delivering absentee ballots for others, and

the absence of a statutory procedure “by which voters . . .

receive notice and an opportunity to be heard regarding any

perceived material errors on their absentee ballot application

envelopes,” (id. ¶ 1).

A. Parties

Plaintiffs League of Women Voters of North Carolina and

Democracy North Carolina (together, “Organizational Plaintiffs”)

are both nonpartisan organizations dedicated to encouraging

voting and voter education. (See id. ¶¶ 6–7.) Individual

Plaintiffs John P. Clark, Lelia Bentley, Regina Whitney Edwards,

and Robert K. Priddy II are North Carolina citizens who voted by

mail-in absentee ballot out of necessity for their health in

2020 and intend to continue voting by mail in future North

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.

Carolina elections. (Id. ¶¶ 8–10.) Individual Plaintiff Walter

Hutchins is a North Carolina citizen who is legally blind and

lives in a nursing home. (Id. ¶ 11.) In the 2020 election,

Plaintiff Hutchins “request[ed] and cast a mail-in absentee

ballot with the assistance of his wife and his nursing home

staff,” and “[h]e intends to continue voting in North Carolina’s

elections, and wants his nursing home staff to continue to help

him to vote even if his wife is able to also help him.” (Id.

¶ 12.) Individual Plaintiff Susan Schaffer lives in North

Carolina and volunteers in assisting people with registering to

vote as well as completing absentee ballots. (Id. ¶ 13.)

Defendant State BoE is the executive agency responsible for

administering election laws in North Carolina. (Id. ¶ 14.) State

Board Defendants are all associated with the State BoE. (Id.

¶¶ 15–20.) Defendant-Intervenor Philip E. Berger is the

President Pro Tempore of the North Carolina Senate, and

Defendant-Intervenor Timothy K. Moore is the Speaker of the

North Carolina House of Representatives. (Id. ¶¶ 21–22.)

B. Changes to North Carolina Absentee Ballot Voting

Since 2001, “North Carolina law has permitted all eligible

citizens to vote by mail in all federal and state elections.”

(Id. ¶ 23.) In November 2019, the North Carolina General

Assembly enacted Senate Bill 683, An Act to Amend the Laws

Governing Mail-In Absentee Ballots (“S.B. 683”). (Id. ¶ 24.) “SB

683 imposes restrictions on who can assist voters with

completing mail-in absentee ballot request forms. . . . There

are also restrictions on who may help return a completed

absentee ballot request.” (Id. ¶¶ 24–25.) Plaintiffs allege “SB

683 has effectively banned organizations like the Organizational

Plaintiffs and individuals like Plaintiff Schaffer from

assisting voters with requesting absentee ballots.” (Id. ¶ 27.)

C. House Bill 1169

On June 11, 2020, the North Carolina General Assembly

passed House Bill 1169, 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

(“H.B. 1169”), signed into law on June 12, 2020, by Governor Roy

Cooper, which amended several of North Carolina’s election laws

in response to the COVID-19 pandemic. 2020 N.C. Sess. Laws 2020-

17 (H.B. 1169). Relevant to this lawsuit, H.B. 1169 amended

several provisions relating to witness requirements, poll

workers, and multipartisan assistance teams (“MATs”). H.B. 1169

added a provision allowing for MATs to assist registered voters

in “hospitals, clinics, nursing homes, assisted living or other

congregate living situations . . . .” Id. § 2.(b). H.B. 1169

also expanded voters’ ability to request absentee ballots by

making it possible for voters to request absentee ballots

online. Id. § 7.(a).

D. Laws at Issue

Plaintiffs challenge several of North Carolina’s voting and

election laws. Specifically, Plaintiffs challenge N.C. Gen.

Stat. §§ 163-230.2, (Fourth Am. Compl. (Doc. 208) ¶¶ 39–40),

163-226.3(a)(1), (4)–(6) and 163-231(b)(1), (id. ¶¶ 59–60), and

the absence of a statutory process for curing defective absentee

request forms and ballots, (id. ¶¶ 41–54).

1. Absentee Ballot Requests

Plaintiffs challenge several restrictions on how a voter

may request an absentee ballot. First, Plaintiffs seek to enjoin

restrictions placed on who may assist a voter in filling out and

returning an absentee ballot request and how they may assist a

voter in doing so (the “Request Assistance Ban”).

N.C. Gen. Stat. § 163-230.2(e)(2), (4) restricts who can

assist in requesting an absentee ballot and how an absentee

ballot request may be returned:

(e) Invalid Types of Written Requests.--If a county

board of elections receives a request for absentee

ballots that does not comply with this subsection or

subsection (a) of this section, the board shall not

issue an application and ballots under [N.C. Gen.

Stat.] 163-230.1. A request for absentee ballots is

not valid if any of the following apply:

. . . .

(2) The completed written request is completed,

partially or in whole, or signed by anyone

other than the voter, or the voter’s near

relative or verifiable legal guardian. A

member of a multipartisan team trained and

authorized by the county board of elections

pursuant to [N.C. Gen. Stat.] 163-226.3 may

assist in completion of the request.

. . . .

(4) The completed written request is returned to

the county board by someone other than a

person listed in subsection (c) of this

section,[2] the United States Postal Service,

or a designated delivery service authorized

pursuant to 26 U.S.C. § 7502(f)(2).

This law has been in effect since January 1, 2020. 2019 N.C.

Sess. Laws 2019-239 (S.B. 683) § 1.3(a).

H.B. 1169 also provides that a MAT may “assist any voter in

the completion of a request form for absentee ballots or in

delivering a completed request form for absentee ballots to the

2 Subsection (c) provides:

(c) Return of Request.--The completed request form for

absentee ballots shall be delivered to the county

board of elections only by any of the following:

(1) The voter.

(2) The voter’s near relative or verifiable legal

guardian.

(3) A member of a multipartisan team trained and

authorized by the county board of elections

pursuant to [N.C. Gen. Stat.] 163-226.3.

N.C. Gen. Stat. § 163-230.2(c).

county board of elections and may serve as a witness for the

casting of absentee ballots.” 2020 N.C. Sess. Laws 2020-17 (H.B.

1169) § 1.(c).

N.C. Gen. Stat. § 163-230.2(e1) governs who may assist a

voter who needs assistance “completing the written request form

due to blindness, disability, or inability to read or write and

there is not a near relative or legal guardian available to

assist that voter.”

2. Absentee Ballots

Plaintiffs also seek to enjoin several laws relating to the

marking, completing, and delivering of absentee ballots

themselves. Plaintiffs seek to enjoin Section 163-226.3(a)(1),

(4)–(6), which makes the following acts unlawful:

(1) For any person except the voter’s near relative or

the voter’s verifiable legal guardian to assist the

voter to vote an absentee ballot when the voter is

voting an absentee ballot other than under the

procedure described in [N.C. Gen. Stat.] 163-227.2,

163-227.5, and 163-227.6; provided that if there is

not a near relative or legal guardian available to

assist the voter, the voter may request some other

person to give assistance

. . . .

(4) For any owner, manager, director, employee, or

other person, other than the voter’s near relative

or verifiable legal guardian, to (i) make a written

request pursuant to [N.C. Gen. Stat.] 163-230.1 or

(ii) sign an application or certificate as a

witness, on behalf of a registered voter, who is a

patient in any hospital, clinic, nursing home or

rest home in this State or for any owner, manager,

director, employee, or other person other than the

voter’s near relative or verifiable legal guardian,

to mark the voter’s absentee ballot or assist such

a voter in marking an absentee ballot. This

subdivision does not apply to members, employees,

or volunteers of the county board of elections, if

those members, employees, or volunteers are working

as part of a multipartisan team trained and

authorized by the county board of elections to

assist voters with absentee ballots. Each county

board of elections shall train and authorize such

teams, pursuant to procedures which shall be

adopted by the State Board of Elections. If neither

the voter’s near relative nor a verifiable legal

guardian is available to assist the voter, and a

multipartisan team is not available to assist the

voter within seven calendar days of a telephonic

request to the county board of elections, the voter

may obtain such assistance from any person other

than (i) an owner, manager, director, employee of

the hospital, clinic, nursing home, or rest home in

which the voter is a patient or resident; (ii) an

individual who holds any elective office under the

United States, this State, or any political

subdivision of this State; (iii) an individual who

is a candidate for nomination or election to such

office; or (iv) an individual who holds any office

in a State, congressional district, county, or

precinct political party or organization, or who is

a campaign manager or treasurer for any candidate

or political party; provided that a delegate to a

convention shall not be considered a party office.

None of the persons listed in (i) through (iv) of

this subdivision may sign the application or

certificate as a witness for the patient.

(5) For any person to take into that person’s

possession for delivery to a voter or for return to

a county board of elections the absentee ballot of

any voter, provided, however, that this prohibition

shall not apply to a voter’s near relative or the

voter’s verifiable legal guardian.

(6) Except as provided in subsections (1), (2), (3)

and (4) of this section, [N.C. Gen. Stat.]

163-231(a), and [N.C. Gen. Stat.] 163-227.2(e), for

any voter to permit another person to assist the

voter in marking that voter’s absentee ballot, to

be in the voter’s presence when a voter votes an

absentee ballot, or to observe the voter mark that

voter’s absentee ballot.

This law has been in force since 1979, 1979 N.C. Sess. Laws Ch.

799 (S.B. 519) § 4, https://www.ncleg.gov/enactedlegislation/

sessionlaws/pdf/1979-1980/sl1979-799.pdf (last visited Mar. 4,

2022), and in its current form since 2013, 2013 N.C. Sess. Laws

2013-381 (H.B. 589) § 4.6.(a).

Plaintiffs further seek to enjoin Section 163-231(b)(1),

which restricts who may transmit completed absentee ballots to

the county boards of election (the “Ballot Delivery

Restriction”). It reads:

(b) Transmitting Executed Absentee Ballots to County

Board of Elections.--The sealed container-return

envelope in which executed absentee ballots have been

placed shall be transmitted to the county board of

elections who issued those ballots as follows:

(1) All ballots issued under the provisions of

this Article and Article 21A of this Chapter

shall be transmitted by mail or by commercial

courier service, at the voter’s expense, or

delivered in person, or by the voter’s near

relative or verifiable legal guardian and

received by the county board not later than

5:00 p.m. on the day of the statewide primary

or general election or county bond election.

Ballots issued under the provisions of Article

21A of this Chapter may also be electronically

transmitted.

N.C. Gen. Stat. § 163-231(b)(1). Subsection (b)(1) has been in

force since 1967, 1967 N.C. Sess. Laws Ch. 775 (H.B. 146),

https://www.ncleg.gov/enactedlegislation/sessionlaws/pdf/1967-

1968/sl1967-775.pdf (last visited March 4, 2022), and in its

current form since 2013, 2013 N.C. Sess. Laws 2013-381 (H.B.

589) § 4.4.

3. Cure Procedure

After this court’s preliminary injunction order, the BoE

published “several numbered memos that provided voters who had

submitted mail-in absentee ballots notice of certain defects

and, in some instances, the opportunity to cure these defects

with an affidavit for the 2020 general election.” (See Fourth

Am. Compl. (Doc. 208) ¶ 33.) On June 11, 2021, the BoE published

Numbered Memo 2021-03 “to provide a similar cure procedure in

future elections.” (Id. ¶ 34.)

E. Procedural History

Plaintiffs filed their original Complaint on May 22, 2020,

(Compl. (Doc. 1)), and their First Amended Complaint on June 5,

2020, (First Am. Compl. (Doc. 8)). Also, on June 5, 2020,

Plaintiffs filed a motion for a preliminary injunction,

(Doc. 9), seeking to enjoin several North Carolina voting and

election laws.

On June 10, 2020, Legislative Defendants moved to intervene

in this case to oppose Plaintiffs’ suit and to represent the

interests of the North Carolina General Assembly. (Docs. 16,

17.) This court granted the motion to intervene. (Doc. 26.)

Following the passage of H.B. 1169, Plaintiffs filed a

Second Amended Complaint, (Second Am. Compl. (Doc. 30)), and an

amended motion for a preliminary injunction, (Doc. 31). This

court held an evidentiary hearing and oral argument from July 20

through July 22, 2020. This court granted in part and denied in

part the preliminary injunction motion. (Doc. 124.)

Plaintiffs filed their Third Amended Complaint on March 18,

2021, (Third Am. Compl. (Doc. 192)), and their Fourth Amended

Complaint on July 8, 2021, (Fourth Am. Compl. (Doc. 208)).

Legislative Defendants moved to dismiss the Fourth Amended

Complaint, (Doc. 209), and filed a brief in support of their

motion, (Br. in Supp. of Legislative Defs.’ Mot. to Dismiss

Pls.’ Fourth Am. Compl. (“Leg. Defs.’ Br.”) (Doc. 210)). State

Board Defendants also moved to dismiss the Fourth Amended

Complaint, (Doc. 211), and filed a brief in support, (Mem. of

Law in Supp. of State Board Defs.’ Mot. to Dismiss (“State Board

Defs.’ Br.”) (Doc. 212)). Plaintiffs filed a consolidated

response brief to both motions, (Pls.’ Mem. of Law in Opp’n to

Defs.’ Mots. to Dismiss (“Pls.’ Resp.”) (Doc. 216)), and

Legislative Defendants and State Board Defendants replied,

(Reply Br. in Supp. of Legislative Defs.’ Mot. to Dismiss Pls.’

Fourth Am. Compl. (Doc. 218); Reply in Supp. of State Board

Defs.’ Mot. to Dismiss (Doc. 219)).

II. STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). To be facially plausible, a claim

must “plead[] factual content that allows the court to draw the

reasonable inference that the defendant is liable” and must

demonstrate “more than a sheer possibility that a defendant has

acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556–57).

When ruling on a motion to dismiss, a court must accept the

complaint’s factual allegations as true. Id. Further, the

complaint and facts alleged therein are viewed “in the light

most favorable to the plaintiff.” Burgess v. Goldstein, 997 F.3d

541, 562-63 (4th Cir. 2021) (citation omitted).

Nevertheless, the factual allegations must be sufficient to

“raise a right to relief above the speculative level” so as to

“nudge[] the[] claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 555, 570; see also Iqbal, 556

U.S. at 680. A court cannot “ignore a clear failure in the

pleadings to allege any facts which set forth a claim.” Estate

of Williams-Moore v. All. One Receivables Mgmt., Inc., 335

F. Supp. 2d 636, 646 (M.D.N.C. 2004). Consequently, even given

the deferential standard allocated to the pleadings at the

motion to dismiss stage, a court will not accept mere legal

conclusions as true and “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements,

[will] not suffice.” Iqbal, 556 U.S. at 678.

III. ANALYSIS

Plaintiffs’ Fourth Amended Complaint alleges three claims:

a First Amendment claim, a Fourteenth Amendment Due Process

claim, and a Voting Rights Act (“VRA”) Section 208 claim.

(Fourth Am. Compl. (Doc. 208) ¶¶ 37–62.) Defendants challenge

Plaintiffs’ standing to seek a permanent injunction regarding

their due process claim and VRA claim. (Leg. Defs.’ Br.

(Doc. 210) at 17–23; State Board Defs.’ Br. (Doc. 212) at 17,

19.) Defendants also argue Plaintiffs’ due process claim is

moot, and in the alternative challenge the ripeness of that

claim. (Leg. Defs.’ Br. (Doc. 210) at 14–17; State Board Defs.’

Br. (Doc. 212) at 14–16.) Defendants also attack Plaintiffs’

Fourth Amended Complaint on the merits. (Leg. Defs.’ Br.

(Doc. 210) at 23–32; State Board Defs.’ Br. (Doc. 212) at 9–14,

17-19.)

A. First Amendment Claim (Count One)

Plaintiffs allege North Carolina’s Request Assistance Ban,

N.C. Gen. Stat. § 163-230.2, violates Plaintiff’s First and

Fourteenth Amendment rights. (Fourth Am. Compl. (Doc. 208)

¶¶ 37–40.) Section 163-230.2 limits who may request an absentee

ballot on behalf of a voter, assist a voter in making such a

request, and deliver such a request on behalf of a voter. N.C.

Gen. Stat. § 163-230.2. It provides that only a voter, a voter’s

near relative or legal guardian, or a MAT may submit an absentee

ballot request on a voter’s behalf. (Fourth Am. Compl.

(Doc. 208) ¶¶ 25–26.) Plaintiffs argue the Request Assistance

Ban burdens “Plaintiffs’ efforts to encourage voter

participation” which “is core to [Plaintiffs’] fundamental

missions.” (Pls.’ Resp. (Doc. 216) at 14–15; accord Fourth Am.

Compl. (Doc. 208) ¶ 39.)

The parties disagree over whether Plaintiffs’ proposed

actions are expressive conduct implicating the First Amendment.

Defendants argue the “Request Assistance Ban does not touch on

protected speech or association, and even if it impacted some

speech, it would easily withstand scrutiny.” (Leg. Defs.’ Br.

(Doc. 210) at 24; see also State Board Defs.’ Br. (Doc. 212) at

9–11.) In response, Plaintiffs contend that encouraging voter

participation is expressive activity. (See Pls.’ Resp.

(Doc. 216) at 16.)

Although the “First Amendment literally forbids the

abridgment only of ‘speech,’” the Supreme Court “ha[s] long

recognized that its protection does not end at the spoken or

written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989).

“[C]onduct may be ‘sufficiently imbued with elements of

communication to fall within the scope of the First . . .

Amendment[].’” Id. (quoting Spence v. Washington, 418 U.S. 405,

409 (1974)). As the Supreme Court has noted, however, this court

“cannot accept the view that an apparently limitless variety of

conduct can be labeled speech whenever the person engaging in

the conduct intends thereby to express an idea.” Spence, 418

U.S. at 409 (internal alterations and quotation marks omitted)

(quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)).

To determine whether conduct is sufficiently communicative

to implicate the First Amendment, the court must determine “[1]

whether [a]n intent to convey a particularized message was

present, and [2] whether the likelihood was great that the

message would be understood by those who viewed it.” Johnson,

491 U.S. at 404 (internal quotation marks omitted) (quoting

Spence, 418 U.S. at 410–11). Such conduct has included the

wearing of black armbands to protest the Vietnam war, Tinker v.

Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), and

donating money to political campaigns, Buckley v. Valeo, 424

U.S. 1 (1976). Other courts have held that a person or

organization’s “public endeavors to assist people with voter

registration are intended to convey a message that voting is

important, that the Plaintiffs believe in civic participation,

and that the Plaintiffs are willing to expend the resources to

broaden the electorate to include allegedly under-served

communities,” and thus is expressive conduct which implicates

the First Amendment. Am. Ass’n of People with Disabilities v.

Herrera, 690 F. Supp. 2d 1183, 1215–16 (D.N.M. 2010), recons. on

separate grounds, No. CIV 08-0702 JB/WDS, 2010 WL 3834049

(D.N.M. July 28, 2010); see also Voting for Am., Inc. v. Steen,

732 F.3d 382, 389 (5th Cir. 2013) (“The state does not deny that

some voter registration activities involve speech—‘urging’

citizens to register; ‘distributing’ voter registration forms;

‘helping’ voters to fill out their forms . . . .” (emphasis

added)); Tenn. State Conf. of NAACP v. Hargett, 420 F. Supp. 3d

683, 704 (M.D. Tenn. 2019) (finding voter registration

assistance regulations must be “substantially related to

important governmental interests” to survive “exacting scrutiny”

(internal quotation marks omitted) (quoting Buckley v. Am.

Constitutional L. Found., Inc., 525 U.S. 182 (1999))). Indeed,

the district court in Herrera found the “First Amendment

protects not only the Plaintiffs’ right to engage in incidental

speech with prospective voters, but also their right to do so

while engaging in the act of registration.” Herrera, 690 F.

Supp. 2d at 1217. Importantly, however, the Herrera court found

that, despite implicating the First Amendment, the third-party

registration law at issue was subject to the Anderson-Burdick

balancing test, described infra Section III.A.1, rather than

strict scrutiny. Id. at 1211–14.

Further, a district court in Michigan has dealt with a

similar set of prohibitions on assisting voters in requesting,

completing, and returning absentee ballots. See Priorities USA

v. Nessel, 462 F. Supp. 3d 792, 810 (E.D. Mich. 2020). The laws

at issue there prohibited third parties from “offering to assist

voters with absentee ballot applications, [and] restrict[ed]

possession of absentee ballot applications . . . .” Id. at 803.

The court distinguished the challenged activities from “cases

involving the mere administrative process or the mechanics of

the electoral process,” and found “little difference between

discussions of whether to register to vote and discussions of

whether to vote absentee.” Id. at 812. The court rejected the

argument that the plaintiffs’ conduct was not expressive and

held that the plaintiffs wanting to educate voters about their

options to use and request absentee ballot applications, offer

to return absentee ballot applications, and return absentee

ballot applications “necessarily involve[d] political

communication and association,” and thus strict scrutiny

applied. Id.

However, several courts have found the collecting of

ballots does not qualify as expressive conduct protected by the

First Amendment. See Knox v. Brnovich, 907 F.3d 1167, 1181 (9th

Cir. 2018) (finding the collection of absentee ballots is not

expressive conduct); Feldman v. Ariz. Sec’y of State’s Office,

843 F.3d 366, 392 (9th Cir. 2016) (holding that collecting

ballots is not expressive conduct “[e]ven if ballot collectors

intend to communicate that voting is important”); Voting for

Am., 732 F.3d at 391 (collecting cases and finding the

collection and delivering of voter-registration applications are

not expressive conduct). But see League of Women Voters of Fla.

v. Cobb, 447 F. Supp. 2d 1314, 1334 (S.D. Fla. 2006) (finding

“the collection and submission of voter registration drives is

intertwined with speech and association” and is thus expressive

conduct protected by the First Amendment).

This court understands the logic of Priorities USA.

However, this court is not persuaded at this preliminary stage

that whether to register to vote and whether to vote absentee

are sufficiently similar to support the analysis in Hargett as

held by the Priorities USA court. The right to vote is a

fundamental matter in a free and democratic society, Reynolds v.

Sims, 377 U.S. 533, 554–55 (1964), whereas this court has

previously found there is no constitutional right to vote by

absentee ballot, see Democracy N.C. v. N.C. State Bd. of

Elections, 476 F. Supp. 3d 158, 226–27 (M.D.N.C. 2020).

This court declines to find, as a matter of law at this

preliminary stage of the proceedings, that assisting voters in

filling out a request form for an absentee ballot is expressive

conduct which implicates the First Amendment as a matter of law.

Relatedly, “[c]onstitutional challenges to specific provisions

of a State’s election laws . . . cannot be resolved by any

‘litmus-paper test’ that will separate valid from invalid

restrictions. Instead, a court must resolve such a challenge by

an analytical process.” Anderson v. Celebrezze, 460 U.S. 780,

789 (1983) (citation omitted). That analysis requires a careful

balancing of “the character and magnitude of the asserted injury

to the rights protected by the First and Fourteenth Amendments

that the plaintiff seeks to vindicate.” Id. This court is not

able to conduct any such balancing on the record presently

before this court.3

Nevertheless, this court does find, in light of Priorities

USA, that for purposes of the allegations contained in the

Fourth Amended Complaint, Plaintiffs have plausibly alleged

facts to support a claim that their advocacy includes assisting

voters and is expressive speech under the First Amendment.

Whether that is true, and whether, if true, First Amendment

protection extends to assisting voters in filling out an

absentee ballot and, if so, the balancing test applies are all

questions more appropriately resolved at summary judgment or

trial on a more complete record.

Therefore, this court will assume without deciding that

assisting voters in filling out a request form for an absentee

ballot is expressive conduct which implicates the First

Amendment. See Priorities USA, 462 F. Supp. 3d at 812. Regarding

the delivering of the absentee ballot requests, however, this

court will follow the Fifth and Ninth Circuits and find that the

3 This court recognizes that this analysis could be

construed as contrary to this court’s finding in its memorandum

opinion on the motion for a preliminary injunction, Democracy

N.C., 476 F.3d at 224; however, that finding was made pursuant

to different facts outlined in a prior, now superseded

complaint, as well as evidence received during an evidentiary

hearing. At this stage in the proceedings, this court is

confined solely to the facts outlined in the Fourth Amended

Complaint.

collecting and delivering of absentee ballot request forms is

not expressive conduct and therefore does not implicate the

First Amendment. This court will next examine each of these

restrictions under the respective levels of scrutiny.

1. Assistance in Filling Out a Ballot Request Form

Although this court finds assisting voters in filling out

ballot request forms is subject to the First Amendment, the

Anderson-Burdick balancing test, see Anderson v. Celebrezze, 460

U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992),

instead of strict scrutiny, likely applies.4 See Thompson v.

Dewine, 959 F.3d 804, 807–11 (6th Cir. 2020) (applying the

Anderson-Burdick balancing test to Ohio’s requirements for

collecting signatures for ballot initiatives, which burdened the

plaintiffs’ First Amendment rights). But even applying the less

4 The district court in Tennessee State Conference of NAACP,

in the context of voter registration restrictions, observed that

it is not explicitly clear that strict scrutiny applies to laws

governing that activity, and compared voter registration

expressive conduct to petition-drive activities, regulations of

which the Supreme Court has subjected to strict scrutiny. 420 F.

Supp. 3d at 701–04. The court recognized the difficulty in

situating regulations of First Amendment activity in the context

of voting and noted that it is “[l]eft with this sometimes

bewildering array of standards to choose from,” but applied the

“exacting scrutiny” standard set forth in Buckley and Meyer v.

Grant, 486 U.S. 414 (1988). Id. Nevertheless, the court finds

the reasoning set forth in Herrera regarding what standard to

apply persuasive and adopts it here. See 690 F. Supp. 2d at

1211–14.

exacting Anderson-Burdick standard, Plaintiffs have sufficiently

stated a plausible First Amendment claim. The Fourth Circuit

summarized the Anderson-Burdick framework as follows:

In short, election laws are usually, but not always,

subject to ad hoc balancing. When facing any

constitutional challenge to a state’s election laws, a

court must first determine whether protected rights

are severely burdened. If so, strict scrutiny applies.

If not, the court must balance the character and

magnitude of the burdens imposed against the extent to

which the regulations advance the state’s interests in

ensuring that “order, rather than chaos, is to

accompany the democratic processes.”

Fusaro v. Cogan, 930 F.3d 241, 257–58 (4th Cir. 2019) (quoting

McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th

Cir. 1995)). “Thus, while ‘severe’ restrictions ‘must be

narrowly drawn to advance a state interest of compelling

importance,’ a reasonable, nondiscriminatory restriction on

voting rights is justified by a State’s ‘important regulatory

interests.’” Lee v. Va. State Bd. of Elections, 843 F.3d 592,

606 (4th Cir. 2016) (quoting Burdick, 504 U.S. at 434). The

court also notes that the Supreme Court does not “identify any

litmus test for measuring the severity of a burden that a state

law imposes on a political party, an individual voter, or a

discrete class of voters.” Crawford v. Marion Cnty. Election

Bd., 553 U.S. 181, 191 (2008). But, “[h]owever slight that

burden may appear, . . . it must be justified by relevant and

legitimate state interests ‘sufficiently weighty to justify the

limitation.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 288–89

(1992)).

Plaintiffs allege they are significantly burdened by North

Carolina’s absentee ballot statutes. Specifically, Plaintiffs

allege that “[t]he restrictions . . . effectively prohibit the

Organizational Plaintiffs and their members from engaging in

core political speech and expressive conduct.” (Fourth Am.

Compl. (Doc. 208) ¶ 39.) Because of the restrictions,

Organizational Plaintiffs are “limited in [their] work to assist

voters . . . [which] is central to [their] core mission.” (Id.)

Plaintiffs allege they are no longer “able to effectively

facilitate those eligible voters requesting absentee ballots.”

(Id.)

Plaintiffs maintain that the restrictions on assisting

voters in requesting an absentee ballot are insufficiently

tailored to address North Carolina’s interest in combatting

election fraud. (Id. ¶ 40.) Plaintiffs point out that “other

protections are in place in North Carolina’s administration of

elections and processing of absentee ballots to prevent mail-in

voter and election fraud.” (Id.) Like this case, in Priorities

USA, the plaintiffs argued “that Michigan has robust laws

protecting absentee voting and also ‘retains an arsenal of

safeguards’ to prevent voting fraud.” 462 F. Supp. 3d at 814

(quoting Buckley, 525 U.S. at 204) (finding the plaintiffs

sufficiently stated a plausible First Amendment claim where

other avenues for addressing voter fraud existed in Michigan).

The court thus found the plaintiffs had stated a plausible First

Amendment claim. Id. at 815. Although Defendants argue that

North Carolina “has a compelling interest in combating election

fraud, especially given its recent history of ballot

harvesting,” (Leg. Defs.’ Br. (Doc. 210) at 27; State Board

Defs.’ Br. (Doc. 212) at 13), at the motion to dismiss stage,

this court accepts the complaint’s factual allegations as true,

Iqbal, 556 U.S. at 662. Because the burden on speech is “not

justified” in light of the other protections already in place to

protect against voter fraud in North Carolina, (Fourth Am.

Compl. (Doc. 208) ¶ 40), this court finds Plaintiffs have

sufficiently stated a plausible First Amendment claim.

2. Delivering Absentee Ballot Requests

Because delivering absentee ballot requests is not

expressive conduct, it is subject only to rational basis review.

See Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) (holding

that since the challenged law did not infringe the appellee’s

First Amendment rights there was “no occasion to apply . . . a

standard of scrutiny stricter than the traditional rational-

basis test.”); Voting for Am., 732 F.3d at 392 (“Because the

Non–Resident and County provisions regulate conduct only and do

not implicate the First Amendment, rational basis scrutiny is

appropriate.”).

Rational basis review requires that legislative action,

“[a]t a minimum, . . . be rationally related to a legitimate

governmental purpose.” Clark v. Jeter, 486 U.S. 456, 461 (1988).

There is a “strong presumption of validity” when examining a

statute under rational basis review, and the burden is on the

party challenging the validity of the legislative action to

establish that the statute is unconstitutional. FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 314–15 (1993). The party defending

the constitutionality of the action need not introduce evidence

or prove the actual motivation behind passage but need only

demonstrate that there is some legitimate justification that

could have motivated the action. See id. at 315.

Here, Defendants argue that the limitations on who may

deliver absentee ballot requests “is a rational means of

promoting the government’s legitimate interest in combating

election fraud.” (Leg. Defs.’ Br. (Doc. 210) at 26–27; see also

State Board Defs.’ Br. (Doc. 212) at 13–14.) On the other hand,

Plaintiffs have alleged that “restrictions on who can assist

voters with completing and submitting absentee ballot requests

are not justified by a state interest in preventing voter fraud,

especially where other protections are in place in North

Carolina’s administration of elections and processing of

absentee ballots to prevent mail-in voter and election fraud.”

(Fourth Am. Compl. (Doc. 208) ¶ 40.) Taking the allegations in

the Fourth Amended Complaint as true, North Carolina’s interest

in combatting election fraud has not been demonstrated as an

acceptable justification in the face of other protections

already in place based upon the facts alleged in the Fourth

Amended Complaint. Because, according to the allegations in the

Fourth Amended Complaint, North Carolina’s restrictions on

delivering absentee ballot requests are not justified by the

threat of election fraud, this court finds Plaintiffs have

plausibly alleged facts tending to show that the limitations on

who can deliver an absentee ballot request violate Plaintiffs’

First and Fourteenth Amendment rights. Accordingly, this court

will deny Defendants’ motions to dismiss as to Count One.

B. Procedural Due Process Claim (Count Two)

Defendants contend that Plaintiffs’ procedural due process

claim is moot, not ripe, and that Plaintiffs lack standing.

Because this court finds that Plaintiffs’ procedural due process

claim is not ripe, this court will address ripeness first, and

decline to make further findings on mootness and standing.

Defendants argue Plaintiffs’ procedural due process claim

“is not ripe because it is ‘wholly speculative.’” (Leg. Defs.’

Br. (Doc. 210) at 15 (quoting Doe v. Va. Dep’t of State Police,

713 F.3d 745, 758 (4th Cir. 2013)); accord State Board Defs.’

Br. (Doc. 212) at 15.) Defendants contend that because there is

a cure procedure in place, any harm is speculative and

hypothetical. (Leg. Defs.’ Br. (Doc. 210) at 17; State Board

Defs.’ Br. (Doc. 212) at 15–16.)

“[R]ipeness derives from Article III,” and “addresses ‘the

appropriate timing of judicial intervention.’” Deal v. Mercer

Cnty. Bd. of Educ., 911 F.3d 183, 190 (4th Cir. 2018) (quoting

Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 2013)). In

reviewing a ripeness challenge, the court considers “(1) the

fitness of the issues for judicial decision and (2) the hardship

to the parties of withholding court consideration.” Id. at 191

(internal quotation marks omitted) (quoting Cooksey, 721 F.3d at

240).

“A case is fit for judicial decision when the issues are

purely legal and when the action in controversy is final and not

dependent on future uncertainties.” Doe, 713 F.3d at 758

(internal quotation marks omitted) (quoting Miller v. Brown, 462

F.3d 312, 319 (4th Cir. 2006)). Thus, “[a] claim should be

dismissed as unripe if the plaintiff has not yet suffered injury

and any future impact ‘remains wholly speculative.’” Id.

(quoting Gasner v. Bd. of Supervisors, 103 F.3d 351, 361 (4th

Cir. 1996)).

Here, Plaintiffs allege that some of the Individual

Plaintiffs “intend to vote by mail-in absentee ballot in future

elections and may well make errors on their absentee ballot

request forms or absentee ballots and/or their certificate

envelopes. The lack of a cure procedure also frustrates the core

mission of [Organizational Plaintiffs] to encourage voter

participation . . . . ” (Fourth Am. Compl. (Doc. 208) ¶ 50.)

This court finds that this claim is “based on hypothetical

future harm that is certainly not impending,” that is, the

revocation of the cure procedure. Clapper v. Amnesty Int’l USA,

568 U.S. 398, 402 (2013). Plaintiffs have not alleged, for

example, that Defendants are likely, as opposed to

speculatively, to rescind the current cure procedure; such a

proposition “remains wholly speculative” and relies upon “future

uncertainties.”5 Doe, 713 F.3d at 758 (internal quotation marks

omitted) (quoting Gasner, 103 F.3d at 361).

Plaintiffs make three arguments in support of the ripeness

of their procedural due process claim. First, Plaintiffs contend

their claim is ripe “because there was no cure process in place

when Plaintiffs first brought their due process claim,” “and

thus the amendments to this claim relate back to the original

complaint.” (Pls.’ Resp. (Doc. 216) at 21, 30–31.) “An amendment

to a pleading relates back to the date of the original pleading

when . . . the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.” Fed. R. Civ.

P. 15(c)(1)(B). This court finds Plaintiffs amended claim does

not relate back to the original claim because the amended claim

arises out of different “conduct, transaction[s], or

occurrence[s].” Id. While the original complaint alleged a lack

of a cure procedure during the ongoing COVID-19 public health

crisis, (Compl. (Doc. 1) ¶¶ 94–95), the Fourth Amended Complaint

5 To the extent Plaintiffs argue their due process rights

are violated because of the lack of a statutory cure procedure,

as opposed to the current cure procedure implemented by the BoE,

this court finds that argument unavailing. The current cure

procedure sufficiently protects voters’ due process rights by

providing notice and an opportunity to cure. (Doc. 169 at 14-

18.) Thus, Plaintiffs have failed to allege a procedural due

process injury under the current cure procedure.

alleges a lack of a uniform cure procedure, (Fourth Am. Compl.

(Doc. 208) ¶¶ 32–36), and does not allege the COVID-19 pandemic

as the reason for the need for a statutory cure procedure.6

Moreover, and importantly, the original complaint arose out of

the impending 2020 general election, while the Fourth Amended

Complaint is focused more generally on unspecified future

elections.

Second, Plaintiffs contend that “the current cure process

is only in place pursuant to the preliminary injunction in this

matter, [and] SBE Defendants retain the power to modify or

rescind this cure process.” (Pls.’ Resp. (Doc. 216) at 31.) On

June 11, 2021, the BoE published Numbered Memo 2021-03 to all

county boards of elections directing procedure county boards

must use to address deficiencies in absentee ballots. (Fourth

Am. Compl. (Doc. 208) ¶ 34.) Numbered Memo 2021-03 “provide[s] a

similar cure procedure in future elections.” (Id.) Plaintiffs do

not allege that the BoE will likely rescind the current cure

procedure; in fact, they make no allegation regarding the

6 “COVID-19” appears once in the Fourth Amended Complaint,

(Fourth Am. Compl. (Doc. 208) ¶ 8 (“Because the combination of

COPD and lung cancer made [Plaintiff Clark] more vulnerable to

severe complications or even death from COVID-19, he by

necessity voted by absentee ballot in the November 2020 general

election.”)), and “pandemic” appears once, (id. ¶ 11 (“In the

2020 general election, [Plaintiff Priddy] voted by mail-in

absentee ballot because of the pandemic and the health risks

posed by in-person voting.”)).

likelihood of the BoE rescinding the cure procedure. (See id.

¶¶ 32–36.) Plaintiffs allege that “other than the Preliminary

Injunction currently in effect, there exists no other law, rule,

or order in North Carolina that would prevent the State Board

from rescinding the cure process requirement going forward

. . . .” (Id. ¶ 35.) However, that the BoE could rescind the

cure procedure “is not certainly impending.” Clapper, 568 U.S.

at 402. Taking the allegations in the Fourth Amended Complaint

in the light most favorable to Plaintiffs, the only reasonable

inference, if any, that can be drawn is that the BoE

hypothetically could rescind the cure procedure. Such

speculation is not ripe for adjudication. Doe, 713 F.3d at 758.

Moreover, withholding court determination at this stage poses no

undue hardship to Plaintiffs. This is not a case where

Plaintiffs lack adequate time to participate in the election

process, thus increasing the need for a final ruling. Cf.

Miller, 462 F.3d at 321 (finding plaintiffs would suffer undue

hardship without a final ruling). Should the BoE rescind the

cure procedure, Plaintiffs may bring suit to enforce their

procedural due process rights.

Finally, Plaintiffs contend “there is no evidence in the

record of any pre-existing intent to implement a uniform cure

process beyond the 2020 general election.” (Pl.’s Resp.

(Doc. 216) at 31.) However, along those same lines, there is no

allegation in the Fourth Amended Complaint of an intent to

rescind the cure procedure. Without affirmative allegations that

the BoE intends to rescind the current cure procedure, the

likelihood of rescission is hypothetical and speculative and

therefore not ripe for adjudication. Doe, 713 F.3d at 758.

Because there is a sufficient cure procedure currently in

place in North Carolina, this court finds any injury to

Plaintiffs is not ripe for review.7 Accordingly, this court will

grant Defendants’ motions to dismiss as to Count Two.

7 The cure process covers absentee ballots but not absentee

ballot requests. Plaintiffs allege that “[u]pon information and

belief, a significant number of absentee ballot request forms

submitted by voters in past elections have been rejected for

material errors without notice or an opportunity to cure

afforded to those voters.” (Fourth Am. Compl. (Doc. 208) ¶ 32.)

As this court noted in its Preliminary Injunction Order, “[t]he

potential future rejection of an absentee ballot request is

. . . entirely speculative and cannot serve as the basis for

. . . a procedural due process claim, as there is no evidence to

suggest the existence of an injury in fact to any Plaintiff.”

Democracy N.C. v. N.C. State Bd. of Elections, 476 F. Supp. 3d

158, 187 (M.D.N.C. 2020). Taking the allegations in the Fourth

Amended Complaint in the light most favorable to Plaintiffs, the

risk of erroneous rejection of an absentee ballot request is

hypothetical. Plaintiffs make no allegation that their absentee

ballot requests were rejected in the past or likely are to be

rejected in the future. Without allegations akin to the

allegations of the prevalence of rejected absentee ballots, (see

Fourth Am. Compl. (Doc. 208) ¶ 32 (“In the March 2020 North

Carolina primary, almost 15 percent of submitted absentee mail-

in ballots were rejected.”)), this court is unable to reasonably

infer an impending injury to Plaintiffs. Therefore, this court

finds Plaintiffs’ due process claim as to absentee ballot

requests is similarly not ripe for review.

C. Section 208 Claim (Count Three)

1. Standing

Defendants argue Plaintiff Hutchins lacks standing to bring

a Section 208 claim. (Leg. Defs.’ Br. (Doc. 210) at 22-23; State

Board Defs.’ Br. (Doc. 212) at 19.)8

To establish standing, Plaintiff Hutchins must show

(1) that he has suffered an injury-in-fact that is (2) traceable

to Defendants and that (3) can likely be redressed by a

favorable ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992). And he must do so for each challenged statutory

provision. CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451

F.3d 1257, 1273 (11th Cir. 2006) (emphasizing that courts have

an “‘independent obligation’ . . . to ensure a case or

controversy exists as to each challenged provision even in a

case where the plaintiffs established harm under one provision

of the statute” (quoting FW/FBS, Inc. v. City of Dall., 493 U.S.

215, 231 (1990)). In the voting context, “voters who allege

facts showing disadvantage to themselves as individuals have

8 As noted by Defendants, Organizational Plaintiffs “do not

allege they have members who” qualify for assistance in voting

under Section 208, and no other Individual Plaintiffs allege

they qualify for such assistance. (Leg. Defs.’ Br. (Doc. 210) at

21.) Plaintiffs frame their response around Plaintiffs Hutchins’

Section 208 right, and this court will do the same. Accordingly,

this court finds only Plaintiff Hutchins’ standing is relevant

as to the Section 208 claim.

standing to sue,” Baker v. Carr, 369 U.S. 186, 206 (1962), so

long as their claimed injuries are “distinct from a ‘generally

available grievance about the government,’” Gill v. Whitford,

138 S. Ct. 1916, 1923 (2018) (quoting Lance v. Coffman, 549 U.S.

437, 439 (2007) (per curiam)).

This court finds Plaintiff Hutchins, as a person covered by

Section 208, has standing, given the conflict between Section

208 and the North Carolina laws concerning who may assist

Hutchins in requesting, marking and completing, and returning

his absentee ballot, thus directly implicating his rights under

Section 208. This is a live controversy currently redressable by

this court. See OCA-Greater Hous. v. Texas, 867 F.3d 604, 610–14

(5th Cir. 2017) (finding plaintiffs had standing to challenge

the Texas interpreter assistance law under Section 208); Ark.

United v. Thurston, 517 F. Supp. 3d 777, 793–94 (W.D. Ark. 2021)

(finding plaintiffs had standing to challenge Arkansas law

governing voter assistance under Section 208); Fla. State Conf.

of NAACP v. Lee Nat’l Republican Senatorial Comm., Case No.:

4:21cv187-MW/MAF, 2021 WL 4818913, at *5–12 (N.D. Fla. Oct. 8,

2021); Priorities USA, 462 F. Supp. 3d at 815–16 (addressing the

merits of plaintiffs’ claim that Section 208 preempted

Michigan’s absentee ballot assistance restrictions). Plaintiff

Hutchins alleges that he “intends to continue voting in North

Carolina’s elections, and wants his nursing home staff to

continue to help him to vote even if his wife is able to also

help him.” (Fourth Am. Compl. (Doc. 208) ¶ 12.) He further

alleges that he “is harmed by these restrictions on assistance

with absentee ballot request, marking and completion, and

absentee ballot submission, and the corresponding lack of any

disability-based exceptions.” (Id. ¶ 61.) Because North

Carolina’s absentee ballot laws prevent Plaintiff Hutchins from

choosing nursing home staff to assist him in voting, Plaintiff

Hutchins sufficiently alleges standing.

Legislative Defendants argue that Plaintiff Hutchins

suffers no impending injury because “he nowhere alleges that he

would use [nursing home] staff help over his wife’s.” (Leg.

Defs.’ Br. (Doc. 210) at 23.) Similarly, State Board Defendants

argue that “[b]ecause Mr. Hutchins has the ability to seek the

assistance of his wife, who he previously indicated was his

preferred choice, Plaintiff has not experienced an actual injury

sufficient to confer standing.” (State Board Defs.’ Br.

(Doc. 212) at 19.) But Section 208’s unambiguous language does

not limit Plaintiff Hutchins from using more than one person’s

help or changing his mind about who he would like to help him

vote. This court thus finds Plaintiff Hutchins has standing to

challenge North Carolina’s absentee ballot laws, N.C. Gen. Stat.

§§ 163-226.3(a)(1), (4)–(6), 163-230.2, 163-231(b)(1), under the

Voting Rights Act.

2. Merits

Under Section 208 of the Voting Rights Act, “[a]ny voter

who requires assistance to vote by reason of blindness,

disability, or inability to read or write [(“208-voters”)] may

be given assistance by a person of the voter’s choice, other

than the voter’s employer or agent of that employer or officer

or agent of the voter’s union.” 52 U.S.C. § 10508.

The terms “vote” or “voting” shall include all action

necessary to make a vote effective in any primary,

special, or general election, including, but not

limited to, registration, listing pursuant to this

chapter, or other action required by law prerequisite

to voting, casting a ballot, and having such ballot

counted properly and included in the appropriate

totals of votes cast with respect to candidates for

public or party office and propositions for which

votes are received in an election.

Id. § 10310(c)(1).

This court is also mindful that the legislative history for

what would become Section 208 reads, “State provisions would be

preempted only to the extent that they unduly burden the right

recognized in this section, with that determination being a

practical one dependent upon facts.” S. Rep. No. 97-417, at *63

(1982), as reprinted in 1982 U.S.C.C.A.N. 177, 241. However, a

208-voter’s choice is not unlimited. See Ray v. Texas, Civil

Action No. 2-06-CV-385 (TJW), 2008 WL 3457021, at *7 (E.D. Tex.

Aug. 7, 2008) (“The language of Section 208 allows the voter to

choose a person who will assist the voter, but it does not grant

the voter the right to make that choice without limitation.”).

Plaintiff Hutchins contends Defendants are violating

Section 208 by preventing him from selecting his assistor of

choice who is not his employer or union representative to assist

him in requesting, marking, completing, or submitting his

absentee ballot. (Pls.’ Resp. (Doc. 216) at 41–43; Fourth Am.

Compl. (Doc. 208) ¶¶ 59–60.) In particular, Plaintiff Hutchins

argues, as a voter in need of assistance in requesting, marking

and completing, and delivering his absentee ballot, he is

entitled to an assistor of his choice other than his employer or

union representative. (Pl.’s Resp. (Doc. 216) at 42–43.) On the

other hand, Legislative Defendants argue that Section 208 does

not give the voter an unlimited right.9 (Leg. Defs.’ Br.

(Doc. 210) at 29.)

The Fifth Circuit dealt with a similarly narrowed law in

Texas, which dictated that a voter’s chosen interpreter be

registered to vote in the voter’s county of residence. OCA-

Greater Hous., 867 F.3d at 609. There, the outcome turned on the

definition of “to vote” under Section 208. Texas contended that

9 State Board Defendants do not challenge Plaintiff

Hutchins’ Section 208 claim on the merits. (See State Board

Defs.’ Br. (Doc. 212) at 19–21.)

the term referred only to the literal marking of the ballot, so

the “assistance by a person of the voter’s choice” did not apply

to the “supplemental interpreter right, which extends beyond the

ballot box,” and therefore was “beyond Section 208’s coverage.”

Id. at 614. The Fifth Circuit disagreed, finding the definition

of “vote” under § 10310(c)(1) resolved the dispute, because

“‘[t]o vote,’ therefore, plainly contemplates more than the

mechanical act of filling out the ballot sheet. It includes

steps in the voting process before entering the ballot box,

‘registration,’ and it includes steps in the voting process

after leaving the ballot box, ‘having such ballot counted

properly.’” Id. at 614–15. The Fifth Circuit held that Texas’s

limitation on voter choice “impermissibly narrows the right

guaranteed by Section 208 of the VRA.” Id. at 615.

This court finds, as an initial matter, voting using an

absentee ballot constitutes “voting” under the VRA, which

defines “vote” or “voting” as including “all action necessary to

make a vote effective in any primary, special, or general

election, including, but not limited to, registration, listing

pursuant to this chapter, or other action required by law

prerequisite to voting, casting a ballot, and having such ballot

counted properly . . . .” 52 U.S.C. § 10310(c)(1). The court

further finds that “voting” includes the delivery of an absentee

ballot to a county board of elections as an action “necessary to

make a vote effective”—an absentee ballot must be delivered in

order to be counted.

Regarding the requesting and the marking and completing of

absentee ballots, Plaintiff Hutchins alleges that North Carolina

essentially does not allow him to choose the person who will

assist him. (Fourth Am. Compl. (Doc. 208) ¶¶ 12, 59–61.) The

Request Assistance Ban, N.C. Gen. Stat. § 163-230.2(e)(2),

restricts who may request an absentee ballot for a voter to the

voter’s near relative, verifiable legal guardian, or a member of

a MAT. The Request Assistance Ban also impermissibly restricts

who may assist 208-voters who are patients “in any hospital,

clinic, nursing home or rest home” by prohibiting anyone but a

voter’s near relative, legal guardian, or a member of a MAT, “to

mark the voter’s absentee ballot or assist such a voter in

marking an absentee ballot.” Section 163-226.3(a)(4) thus

constricts who may assist a 208-voter: it provides that if

neither a near relative nor a legal guardian nor a MAT is

available to assist the voter within seven days of a request to

the county board of elections, a voter may receive assistance

from another constricted list of people, not including

(i) an owner, manager, director, employee of the

hospital, clinic, nursing home, or rest home in which

the voter is a patient or resident; (ii) an individual

who holds any elective office under the United States,

this State, or any political subdivision of this

State; (iii) an individual who is a candidate for

nomination or election to such office; or (iv) an

individual who holds any office in a State,

congressional district, county, or precinct political

party or organization, or who is a campaign manager or

treasurer for any candidate or political party;

provided that a delegate to a convention shall not be

considered a party office.

208-voters must rely on either a near relative, a legal

guardian, or a MAT if they are available before they may choose

any other person to assist them.

Here, Plaintiff Hutchins has alleged that he wants the

assistance of his nursing home staff, (Fourth Am. Compl.

(Doc. 208) ¶ 12), but North Carolina does not allow his nursing

home staff to assist, (id. ¶¶ 59–60). Because Plaintiff Hutchins

has alleged that the “person of [his] choice,” 52 U.S.C.

§ 10508, cannot assist him under North Carolina’s statute,

Plaintiff has sufficiently alleged a plausible claim that North

Carolina’s absentee ballot voting laws violate Section 208.10

10 While these assertions may not be sufficient, without

more, to create a genuine dispute of material fact at summary

judgment, they are adequate to satisfy the Rule 12(b)(6)

pleading standard and state a plausible claim. Indeed, “[t]he

language of the [2008] Senate Report suggests that some

legislation on the topic of voter assistance is permissible.”

Ark. United, 517 F. Supp. 3d at 796. However, “[g]iven the

Committee’s admonishment that the inquiry of whether a state

provision unduly burdens the right to have the assistance of a

person of the voter’s choice is ‘a practical one dependent upon

the facts,’ the Court finds it inappropriate at this juncture to

take up whether the state laws challenged here impermissibly

conflict with Section 208.” Id.

Plaintiff Hutchins also challenges Sections 163-231(b)(1)

and 163-226.3(a)(5), (Fourth Am. Compl. (Doc. 208) ¶ 60), both

of which concern the transmission of an absentee ballot for

delivery to a county board of elections. Section 163-231(b)(1)

dictates that ballots can only be transmitted to the county

board of elections by mail or commercial courier service, by the

voter, by the voter’s verifiable legal guardian, or the voter’s

near relative, and Section 163-226.3(a)(5) prohibits anyone but

a voter’s near relative or legal guardian from “tak[ing] into

that person’s possession for delivery to a voter or for return

to a county board of elections the absentee ballot of any

voter.”

This court finds that Plaintiff Hutchins has sufficiently

alleged that these restrictions violate “[t]he unambiguous

language of the VRA.” OCA-Greater Hous., 867 F.3d at 614. In

this case, Plaintiff Hutchins alleges he is a 208-voter who has

been denied the person of his choice—nursing home staff—to

assist him in the absentee ballot voting process. (Fourth Am.

Compl. (Doc. 208) ¶ 12, 59–61.) Because “[t]he standard

applicable to a motion to dismiss is a generous one that assumes

all facts pleaded are true and makes reasonable inferences in

[the plaintiff’s] favor,” Ark. United, 517 F. Supp. 3d at 796,

this court finds Plaintiff Hutchins has pled sufficient facts to

allow this court to make the reasonable inference that the North

Carolina statutes may unduly burden Plaintiff Hutchins because

he is prevented from selecting his preferred voter assistor,

(Fourth Am. Compl. (Doc. 208) ¶¶ 12, 59–61). As set forth supra

note 10, while this court has doubts about the sufficiency of

this allegation to create a genuine dispute of material fact to

survive summary judgment, at this preliminary stage in the

proceedings this court finds Plaintiff has sufficiently pled

facts that create a plausible claim under Section 208 of the

VRA.

This court does not dispute that the state of the COVID-19

pandemic has changed since August 2020. Nursing homes are not

under the same lockdowns as they were then, and vaccines are

readily available. But Section 208 does not apply only in a

pandemic, and indeed, none of Plaintiff Hutchins’ allegations

concerning his Section 208 claim hinge on the presence of COVID-

19. Instead, Plaintiff Hutchins alleges he wants the assistance

of his nursing home staff—even if his wife can help him too—in

voting in future elections. (Fourth Am. Compl. (Doc. 208) ¶ 12.)

Because Plaintiff Hutchins has alleged facts tending to show

that North Carolina’s laws conflict with Section 208, Plaintiff

Hutchins has sufficiently pled a plausible claim for relief.

Accordingly, this court will deny Defendants’ motions to dismiss

Count Three.

Iv. CONCLUSION

For the foregoing reasons, this court will grant in part

and deny in part Legislative Defendants and State Board

Defendants’ motions to dismiss, (Docs. 209, 211).

IT IS THEREFORE ORDERED that Defendants’ motions to

dismiss, (Docs. 209, 211), are GRANTED as to Count Two.

IT IS FURTHER ORDERED that Defendants’ motions to dismiss

are DENIED as to Counts One and Three.

This the 10th day of March, 2022.

*

Jinan Gohan

United States District Judge

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