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, ) 1:20CV876

)

v. )

)

THE NORTH CAROLINA STATE )

BOARD OF ELECTIONS, et al., )

)

Defendants.

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Before the Court is Plaintiffs’ Objection to the Magistrate Judge’s Memorandum

Opinion and Recommendation brought pursuant to 28 U.S.C. § 636(b)(1) and Rule 72 of the

Federal Rules of Civil Procedure. (ECF No. 109 at 5.) Plaintiffs’ Objection came on for

hearing before the undersigned on March 7, 2024. (Minute Entry 03/07/2024). For the

reasons that follow, the Court holds that Plaintiffs’ Objection is sustained in part, and that the

portion of the Magistrate Judge’s January 2, 2024, Memorandum Opinion and

Recommendation, (ECF No. 107), (the “Recommendation” or the “Magistrate Judge’s

Recommendation”) to which Plaintiffs object is rejected.

I. BACKGROUND1

Plaintiffs initiated this action on September 24, 2020, to challenge N.C. Gen. Stat. §

163-275(5) (2019) (the “Challenged Statute”), (ECF No. 1 ¶ 1), a state election law that 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) (2019). Plaintiffs allege that the Challenged Statute is unconstitutional under the Equal

Protection and Due Process Clauses of the Fourteenth Amendment and seek a declaration

from the Court stating the same. (ECF No. 36 ¶ 7.) Plaintiffs submitted their Motion for

Summary Judgment on June 15, 2023. (ECF No. 85.) After Plaintiff’s Summary Judgment

Motion was fully briefed by the Parties, the North Carolina General Assembly, on October

10, 2023, enacted an amendment to the Challenged Statute (“Senate Bill 747”), which added a

scienter requirement to the Challenged Statute and became effective on January 1, 2024,

resulting in the current version of the statute, N.C. Gen. Stat. § 163-275(5) (2024) (the

“Amended Statute”). (ECF No. 103 ¶¶ 1–2); see S. 747, 2023 Gen. Assem., Reg. Sess. §§ 38,

50 (N.C. 2023); N.C. Gen. Stat. § 163-275(5) (2024). The Amended Statute only applies

prospectively and is not retroactive. See S. 747 § 50. The North Carolina General Assembly

did not repeal the Challenged Statute, meaning that the Challenged Statute remains in force,

and alleged offenses which occurred before January 1, 2024, can still be prosecuted under the

Challenged Statute. (Tr. 40–41.2)

1 Because the Magistrate Judge provided such a complete and exhaustive explanation of the procedural

history of this litigation in his Recommendation, (see ECF No. 107 at 2–13), none of which has been

challenged in this Objection, the Court adopts same here.

Before addressing Plaintiffs’ Motion for Summary Judgment, on October 27, 2023, the

Magistrate Judge set the matter for a hearing and ordered the Parties to submit supplemental

briefing to address the possible impact of Senate Bill 747 on Plaintiffs’ claims. (Text Order

10/27/23.) Both Parties submitted their supplemental briefing, (see ECF Nos. 105; 106), and

on November 14, 2023, oral argument took place before the Magistrate Judge, (Text Order

11/14/23). On January 2, 2024, the Magistrate Judge issued his Recommendation, in which

he recommended that Plaintiffs’ Motion for Summary Judgment be denied as moot and the

suit be dismissed for lack of subject matter jurisdiction on the basis that Plaintiffs lacked

standing to continue to pursue their claims. (ECF No. 107 at 24.) Because the Magistrate

Judge denied Plaintiffs’ Motion for Summary Judgment as moot, he did not reach the merits.

See generally id. Plaintiffs filed their Objection to the Magistrate Judge’s Recommendation on

January 16, 2024. (ECF No. 109.)

II. STANDARD OF REVIEW

On review of a magistrate judge’s proposed findings and recommendations in

dispositive matters, upon a timely objection by either party to the magistrate judge’s

recommended disposition, the district judge must “make a de novo determination of those

portions of the . . . specified proposed findings or recommendations to which objection is

made.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see United States v. De Leon-Ramirez, 925

F.3d 177, 181 (4th Cir. 2019). The district judge “may accept, reject, or modify” the

recommended disposition, receive further evidence, or return the matter to the magistrate

judge with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); see United States v. George,

971 F.2d 1113, 1118 (4th Cir. 1992).

III. DISCUSSION

In their Objection, Plaintiffs argue that the Magistrate Judge applied the wrong legal

standard and wrong burden of proof in analyzing the impact of Senate Bill 747 in this case.

(ECF No. 109 at 6.) According to Plaintiffs, the Magistrate Judge improperly conflated the

doctrines of mootness and standing, overlooking Supreme Court and Fourth Circuit precedent

holding that an intervening development is properly examined under the doctrine of mootness

and places the burden on Defendants, not Plaintiffs, to show that Plaintiffs have no concrete

interest remaining in the litigation. (Id.) Plaintiffs also argue that the Magistrate Judge erred

in concluding that they have no remaining concrete interest. (Id. at 7–8.) In addition, Plaintiffs

argue that the Magistrate Judge erred in not addressing the merits of their claims. (Id. at 8.)

In their Response, Defendants contend that the Magistrate Judge applied the correct

legal standard when applying the standard of review for standing. (ECF No. 110 at 6.)

Defendants argue that, since the Magistrate Judge raised the issue of subject matter jurisdiction

sua sponte, the burden of proving jurisdiction remained on Plaintiffs. (Id. at 10.) Defendants

argue that the Magistrate Judge also “correctly determined that . . . ‘Plaintiffs fail to establish

a concrete interest in this litigation.’” (Id. at 13 (quoting ECF No. 107 at 21).) Finally,

Defendants assert that the voluntary cessation exception to mootness is inapplicable in this

case. (Id. at 15.)

A. The Jurisdictional Doctrines of Standing and Mootness

Article III of the Constitution “limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies,’” Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (quoting U.S. Const. art.

III, § 2), and the doctrines of standing and mootness derive from that limitation, White Tail

Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005). The requirement of Article III that

at all stages of a case. Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017). The standing

determination generally “remains focused on whether the party invoking jurisdiction had the

requisite stake in the outcome when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S.

724, 734 (2008) (citations omitted). Standing ensures that a plaintiff has “a personal stake in

the outcome of the controversy” that is sufficient to warrant the “invocation of federal-court

jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation and internal

quotation marks omitted). Like standing, “[m]ootness is a jurisdictional question and thus

may be raised sua sponte by a federal court at any stage of proceedings.” United States v. Springer,

715 F.3d 535, 540 (4th Cir. 2013) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). “A

case becomes moot . . . ‘when the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome.’” Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013)

(internal quotation marks omitted) (quoting United States v. Hardy, 545 F.3d 280, 283 (4th

Cir.2008)), abrogated on other grounds by Stinnie v. Holcomb, 37 F.4th 977 (4th Cir. 2022).

Even when a plaintiff satisfies the requirements of the standing doctrine when litigation

commences, a federal court may cease to have jurisdiction when subsequent events render a

claim moot. Pashby, 709 F.3d at 316 (citing Simmons v. United Mortg. & Loan Inv., LLC, 634

F.3d 754, 763 (4th Cir. 2011)). While, as argued by Defendants, mootness has been described

as “the doctrine of standing set in a time frame,” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43,

68 n.22 (1997), the Supreme Court has acknowledged that the use of that phrase has caused

some confusion and has explained that such a description “is not comprehensive,” Friends of

the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189–90 (2000). According to the

Supreme Court, “if mootness were simply standing set in a frame, the exception[s] to mootness

. . . could not exist.” Id. at 190. Exceptions to the mootness doctrine exist that allow claims

to remain live even when events occur after litigation commences that would deprive a plaintiff

of standing to bring those claims at the outset of a suit. See id. at 190–91.

B. The Magistrate Judge Applied the Incorrect Standard and

Accompanying Burden

In the Magistrate Judge’s Recommendation, after setting forth the standard of review

for summary judgment, the Magistrate Judge stated that “Defendants claim that the passage

of Senate Bill 747 has eliminated any concrete interest held by Plaintiffs in the action, and thus

they do not have standing to bring a claim, so the case should be dismissed as moot.” (ECF

No. 107 at 14 (citing ECF No. 106 at 1).) The Magistrate Judge proceeded and stated that the

“absence of ‘one of the three required elements of Article III standing: (1) injury-in-fact, (2)

causation, or (3) redressability,’ renders a case moot.” (ECF No. 107 at 18 (quoting Action NC

v. Strach, 216 F. Supp. 3d 597, 612 (M.D.N.C. 2016)).) While the Magistrate Judge

acknowledged that mootness is a jurisdictional question that may be raised sua sponte by a

federal court at any point in a case, (ECF No. 107 at 18), he then proceeded to “address each

element required to satisfy standing,” (id. at 19 (emphasis added)), revisiting each standing

element and evaluating whether Plaintiffs continue to satisfy the elements after the passage of

Senate Bill 747, (id. at 19–24). After determining that “Plaintiffs have failed to satisfy the three

elements to establish standing,” the Magistrate Judge recommended that Plaintiffs’ claims be

dismissed as moot for lack of subject matter jurisdiction. (Id. at 24.) This Court concludes

that the Magistrate Judge applied the incorrect standard in arriving at his conclusion that

Senate Bill 747 rendered Plaintiffs’ claims moot and dismissing the action.

Contrary to Defendants’ assertion that it is Plaintiffs that attempt to draw a bright line

between the doctrines of standing and mootness, it is the Supreme Court that has now clearly

at 191, and has been clear on the difference in the standard that is to apply when mootness is

at issue as opposed to when standing is at issue. The Supreme Court has emphasized that “[i]t

is the doctrine of mootness, not standing, that addresses whether ‘an intervening circumstance

[has] deprive[d] the plaintiff of a personal stake in the outcome of the lawsuit.’” W. Virginia

v. Env’t Prot. Agency, 597 U.S. 697, 719 (2022) (second and third alterations in original) (citations

omitted). The Court further stated that the distinction between mootness and standing

“matters because the [defendant], not [the plaintiff], bears the burden to establish that a once-

live case has become moot.” Id. (citing Friends of the Earth, 528 U.S. at 189; Adarand Constructors,

Inc. v. Slater, 528 U.S. 216, 222 (2000) (per curiam)).3

The Supreme Court and the Fourth Circuit have both declared that “[a]s long as the

parties have a concrete interest, however small, in the outcome of the litigation, the case is not

moot.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 604 (4th Cir. 2020) (internal quotation

marks omitted) (citing Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v. Serv. Emps.

Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012)). “A case becomes moot only when it is

3 This Court acknowledges that it is only in the context of cases involving voluntary cessation that the

Supreme Court has stated that the burden of establishing mootness rests on defendants. See, e.g., W.

Virginia v. Env’t Prot. Agency, 597 U.S. 697, 719 (2022); Fed. Bureau of Investigation v. Fikre, 144 S. Ct. 771,

778 (2024); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000);

Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (per curiam). However, in the mootness

analysis in W. Virginia v. Env’t Prot. Agency, the Supreme Court states immediately after making clear

that it is the doctrine of mootness that applies in determining whether an intervening circumstance

has caused a plaintiff to lose a stake in the case that it is “the [defendant], and not [the plaintiff], [that]

bears the burden.” 597 U.S. 697 at 719. The Court proceeds, in a new paragraph, to explain that in

the context of voluntary cessation, the burden is a particularly “heavy burden.” Id. (stating that “the

Government, not petitioners, bears the burden to establish that a once-live case has become moot”

before stating that the “burden is ‘heavy’ where” the only conceivable basis for a finding of mootness

is the Government’s voluntary conduct). Further, courts in other circuits, in the context of cases that

did not involve the voluntary cessation doctrine, have applied the approach that defendants carry the

burden of establishing mootness. See, e.g., Tiedemann v. von Blanckensee, 72 F.4th 1001, 1007 (9th Cir.

2023); Campaign Legal Ctr. v. Iowa Values, No. 1:21-cv-389-RCL, 2023 WL 5651734, at *4 (D.D.C. Aug.

31, 2023). Therefore, this Court will apply the same approach and concludes that Defendants shoulder

impossible for a court to grant any effectual relief whatever to the prevailing party.” Springer,

715 F.3d at 540 (internal quotation marks omitted) (quoting Knox, 567 U.S. at 307).

Here, the Magistrate Judge never considered that this was a case that had been in

litigation for more than three years, that the circumstances of the case may have been altered

by a legislative amendment, or that the Supreme Court has specifically held that it is the

doctrine of mootness, not standing, that addresses whether an intervening circumstance has

deprived the plaintiff of a personal stake in the outcome of the lawsuit. This was precisely the

issue before the Magistrate Judge. Thus, rather than analyze whether Plaintiffs have failed to

satisfy the elements of standing, the Magistrate Judge, through the lens of the mootness

standard, was required to determine whether Defendants have established that Plaintiffs do

not maintain “a concrete interest, however small,” in the litigation and whether Defendants

have shown that the court does not have the ability “to grant any effectual relief” to Plaintiffs.

Springer, 715 F.3d at 540 (quoting Knox, 567 U.S. at 307). As a result, this Court concludes that

the Magistrate Judge applied the incorrect standard and burden.

Accordingly, this Court now applies the proper standard and burden under mootness

to determine whether Plaintiffs’ claims are indeed moot under the circumstances of this case.

C. The Amended Statute Does Not Moot This Case

Plaintiffs contend that they continue to have a concrete interest in the outcome of the

case because “the risk of continued prosecutions under the [Challenged Statute] will adversely

impact Plaintiffs’ voter organization efforts,” generating publicity and voter confusion about

the state of the Challenged Statute and discouraging prospective voters from voting altogether.

(ECF No. 109 at 13.) Plaintiffs argue that the Magistrate Judge, in concluding that Plaintiffs

did not maintain a continuing interest in the litigation, analyzed their interest under the

standing doctrine and relied on a case that “did not address the impact of an intervening

legislative amendment.” (Id. at 14.) In addition, Plaintiffs contend that the Magistrate Judge’s

conclusion that the potential harm to Plaintiffs due to the risk of voter confusion is

“speculative” assumes that Defendants will not enforce the Challenged Statute, and that such

an assumption is not properly supported in the record. (Id. at 7, 17.)

Defendants argue, however, that the Magistrate Judge correctly determined that

Plaintiffs do not maintain a concrete interest in the litigation. (ECF No. 110 at 13.)

Defendants contend that Plaintiffs’ “new alleged injury” after enactment of Senate Bill 747 is

hypothetical, (id. at 13–14), also pointing out that “Plaintiffs’ new theory of injury is, in fact,

the interest of . . . non-parties” to the litigation, (id. at 15).

The Court visits the Magistrate Judge’s analysis in the Recommendation with respect

to whether Plaintiffs maintain a concrete interest. In reaching the conclusion that “Plaintiffs

have failed to establish a concrete interest in the litigation,” (ECF No. 107 at 21), the

Magistrate Judge began by stating that “[t]he first standing element requires Plaintiffs to allege

a concrete and imminent injury,” (id. at 19). The Magistrate Judge reasoned that Plaintiffs’

“claim that their interest arises from the fact that the old, challenged statute could be applied

retroactively to violations from prior elections, which could, in turn, cause confusion among

prospective voters and force Plaintiffs to divert resources to address that confusion” is “too

speculative to establish a concrete and imminent injury-in-fact.” (Id. at 20–21.) The Magistrate

Judge relied on the case Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), in this reasoning.4

(Id.)

4 The Clapper case on which the Magistrate Judge rested his conclusion that Plaintiffs’ “possibility of a

As acknowledged by the Supreme Court and the Fourth Circuit, “[a]s long as the parties

have a concrete interest, however small, in the outcome of the litigation, the case is not moot.”

Grimm, 972 F.3d at 604 (quoting Knox, 567 U.S. at 307–08). This “bar for maintaining a legally

cognizable claim is not high,” id. (quoting Knox, 567 U.S. at 307), and “[t]he mootness doctrine

. . . constitutes a relatively weak constraint on federal judicial power,” as “[a] case becomes

moot only when it is impossible for a court to grant any effectual relief whatever to the

prevailing party,” Springer, 715 F.3d at 540 (quoting Knox, 567 U.S. at 307). The fact that the

intervening circumstance in this case is a legislative amendment must also be taken into

account, since a superseding statute or regulation that changes a prior law must remedy the

challenged aspects of the prior law in order for a case challenging that law to be deemed moot.

See Chapin Furniture Outlet Inc. v. Town of Chapin, 252 F. App’x 566, 570 (4th Cir. 2007)

(unpublished) (citing Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d

1301, 1310 (11th Cir. 2000) (noting that “when an ordinance is repealed by the enactment of

a superseding statute, then the superseding statute or regulation moots a case only to the extent

that it removes challenged features of the prior law”) (citation and internal quotation marks

omitted)).

Defendants, on the other hand, argue that “[t]he passage of [Senate Bill 747] entirely

addresses Plaintiffs’ facial constitutional challenge to [the Challenged Statute].” (ECF No. 110

at 1.) In their supplemental briefing before the Magistrate Judge, Defendants argued that

because the Amended Statute adds the scienter requirement, Plaintiffs no longer maintain a

viable interest, as “Plaintiffs can no longer claim . . . that the risk that prospective voters will

be prosecuted on a strict-liability basis for voting unlawfully means that Plaintiffs must divert

resources which would otherwise be used for other voter-education purposes.” (ECF No.

106 at 2.) However, to suggest that Plaintiffs’ claims are moot solely because the scienter

requirement has been inserted is inaccurate. The Magistrate Judge’s discussion in the

Recommendation does not venture to address whether the addition of the scienter

requirement resolves all, or any portion of, the challenged aspects of the Challenged Statute.

(See generally ECF No. 107.) Nonetheless, there remain challenged aspects of the Challenged

Statute that have not been alleviated by the scienter requirement’s addition.

In their brief in support of their Motion for Summary Judgment, Plaintiffs argue,

among other things, that the Challenged Statute’s criminalization of voting before an

individual has “been restored to the right of citizenship,” N.C. Gen. Stat. § 163-275(5) (2019),

is unconstitutionally vague because it “does not provide any guidance on when or how an

individual regains those rights,” (ECF No. 86 at 28). Plaintiffs argue that use of such

“undefined terms . . . fail[s] to give fair warning about what is prohibited.” (Id. at 29 (internal

quotation marks and citation omitted).) The text of that statute, after its amendment, currently

reads: “For any person convicted of a crime which excludes the person from the right of

suffrage, to vote in any primary or election knowing the right of citizenship has not been restored

in due course and by the method provided by law.” N.C. Gen. Stat. § 163-275(5) (2024)

(emphasis added). The Amended Statute still references the restoration of an individual’s

rights of citizenship without detailing the actual process by which an individual’s rights of

citizenship are restored, which was an original concern of Plaintiffs with the Challenged Statute

before the amendment. Therefore, Plaintiffs’ claim that the Challenged Statute is

unconstitutionally vague remains an unresolved ground for Plaintiffs’ challenge, irrespective

of the new scienter requirement in the Amended Statute. Thus, the addition of the scienter

requirement did not remedy an aspect of the Challenged Statute that Plaintiffs assert as a

ground for the Statute’s unconstitutionality.

The continued presence of a challenged aspect of the Challenged Statute

notwithstanding the passage of the Amended Statute—which incorporated the scienter

requirement—demonstrates that it is certainly possible for the Court to grant effectual relief

to Plaintiffs, particularly by declaring the Challenged Statute unconstitutional and enjoining

the enforcement of Challenged Statute. See Chafin, 568 U.S. at 177 (“[E]ven the availability of

a partial remedy is sufficient to prevent [a] case from being moot.”) (second alteration in

original) (internal quotation marks omitted) (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996)

(per curiam)). The Magistrate Judge did not recognize the low bar that must be met to

demonstrate a concrete interest under the mootness standard, specifically that a case is only

moot if it is “impossible for a court to grant any effectual relief whatever to the prevailing

party,” Springer, 715 F.3d at 540 (quoting Knox, 567 U.S. at 307), or that the addition of the

scienter requirement did not address other challenged aspects of the Challenged Statute.

Therefore, this Court concludes that, due to reliance on the wrong standard and burden, the

Magistrate Judge improperly concluded that Plaintiffs do not maintain a concrete interest,

however small, in this litigation. This Court concludes that Plaintiffs do, in fact, maintain such

an interest, that Defendants have not proven otherwise, and that the litigation should proceed

to a resolution on the merits, which will be done by separate Order.

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Plaintiffs’ Objection to the Magistrate Judge’s

Memorandum Opinion and Recommendation, (ECF No. 109), is SUSTAINED IN PART,

and the portion of the Magistrate Judge’s January 2, 2024, Memorandum Opinion and

Recommendation, (ECF No. 107), to which Plaintiffs object is REJECTED as outlined in this

Court’s Memorandum Opinion and Order. The Court holds that this matter is not rendered

moot by Senate Bill 747, and the litigation shall proceed, specifically to address Plaintiffs’ Summary

Judgment Motion.

This, the 22nd day of April 2024.

/s/ Loretta C. Biggs

United States District Judge