IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, )

THE LEAGUE OF WOMEN VOTERS )
OF NORTH CAROLINA, )
DONNA PERMAR, JOHN P. CLARK, )
MARGARET B. CATES, )
LELIA BENTLEY, REGINA WHITNEY )
EDWARDS, ROBERT K. PRIDDY II, )
SUSAN SCHAFFER, and )
WALTER HUTCHINS, )
)
Plaintiffs, )
)
v. ) 1:20CV457
)
THE NORTH CAROLINA STATE )
BOARD OF ELECTIONS, )
DAMON CIRCOSTA, in his )
official capacity as CHAIR )
OF THE STATE BOARD OF )
ELECTIONS, STELLA ANDERSON, )
in her official capacity as )
SECRETARY OF THE STATE )
BOARD OF ELECTIONS, )
KEN RAYMOND, in his official )
capacity as MEMBER OF THE )
STATE BOARD OF ELECTIONS, )
JEFF CARMON III, in his )
official capacity as MEMBER )
OF THE STATE BOARD OF )
ELECTIONS, DAVID C. BLACK, )
in his official capacity as )
MEMBER OF THE STATE BOARD )
OF ELECTIONS, KAREN BRINSON )
BELL, in her official )
capacity as EXECUTIVE )
DIRECTOR OF THE STATE BOARD )
OF ELECTIONS, THE NORTH )
CAROLINA DEPARTMENT OF )

Case 1:20-cv-00457-WO-JLW Document 124 Filed 08/04/20 Page 1 of 188

TRANSPORTATION, J. ERIC )
BOYETTE, in his official )
capacity as TRANSPORTATION )
SECRETARY, THE NORTH )
CAROLINA DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
and MANDY COHEN, in her )
official capacity as )
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Defendants. )
)
and )
)
PHILIP E. BERGER, in his )
official capacity as )
PRESIDENT PRO TEMPORE OF THE )
NORTH CAROLINA SENATE, and )
TIMOTHY K. MOORE, in his )
official capacity as SPEAKER )
OF THE NORTH CAROLINA HOUSE )
OF REPRESENTATIVES, )
)
Defendant-Intervenors. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter is before the court on the Amended Motion for

Preliminary Injunction against several North Carolina voting and

election laws filed by Plaintiffs Democracy North Carolina

(“Democracy NC”) and The League of Women Voters of North

Carolina (“LWV”) (together, “Organizational Plaintiffs”), Donna

Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina

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Whitney Edwards, Robert K. Priddy II, Susan Schaffer, and Walter

Hutchins (together, “Individual Plaintiffs”). (Pls.’ Am. Mot.

for Preliminary Injunction (“Pls.’ Am. Mot.”) (Doc. 31).)

By this order, the court has left the One-Witness

Requirement in place, enjoined several rules related to nursing

homes that would disenfranchise Plaintiff Hutchins, and enjoined

the rejection of absentee ballots unless the voter is provided

due process. The remaining requested relief has been denied,

often because this court has found Plaintiffs’ evidence fails to

establish a likelihood of success on the merits. However, a

finding by this court that Plaintiffs have failed to establish a

likelihood of success on the merits should not be misunderstood

by the parties. Plaintiffs have raised genuine issues of concern

with respect to the November General Election. Should

Legislative and Executive Defendants believe these issues may

now be discounted or disregarded for purposes of the impending

election, they would be sorely mistaken.

The COVID-19 pandemic has presented, and continues to

present, unique and difficult challenges to all of us. The

responses by citizens have been divergent. Some citizens are

reasonably and genuinely frightened and have, as a result,

retreated to their homes. On the other hand, some citizens are

reasonably and genuinely frustrated by limitations to their

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freedom. Others are reluctant or unwilling to follow

recommendations and requirements such as masks and social

distancing. It does not appear, from the evidence in this case,

that circumstances are likely to change significantly between

now and November 3, 2020. As a result, during this election,

millions of diverse North Carolinians will leave their homes to

assemble and exercise their cherished right to vote in the midst

of the unique circumstances caused by COVID-19.

“States have ‘broad powers to determine the conditions

under which the right of suffrage may be exercised.’” Shelby

Cty. v. Holder, 570 U.S. 529, 543 (2013) (quoting Carrington v.

Rash, 380 U.S. 89, 91 (1965)). “Under the Constitution, state

and local governments, not the federal courts, have the primary

responsibility for addressing COVID–19 matters such as

quarantine requirements, testing plans, mask mandates,

phased reopenings, school closures, sports rules, adjustment

of voting and election procedures, state court and correctional

institution practices, and the like.” Calvary Chapel Dayton

Valley v. Sisolak, No. 19A1070, ____ U.S. ____, 2020 WL 4251360

at *11 (July 24, 2020) (Kavanaugh, J., dissenting). Accordingly,

the responsibility for conducting a fair, open, and safe

election this November is the primary and substantial

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responsibility of the Executive and Legislative branches of the

North Carolina government.

This court heard the testimony of Karen Brinson Bell, the

Executive Director of the North Carolina State Board of

Elections, and finds her testimony to be both credible and

thoughtful. The Executive and Legislative branches would do well

to carefully consider the actions proposed by Director Bell and

those proposed by Plaintiffs. Any failure by the State

government to carefully plan, maintain flexibility and

alternatives to potential problems, and consider new and unique

ways of addressing an election conducted during a global

pandemic could easily lead to the same difficulties experienced

by Georgia and other states holding elections during this

pandemic, resulting in voters unable to exercise their

fundamental right to vote. The 2020 General Election is going to

be a test of the North Carolina government’s thoughtfulness,

adaptability, and responsiveness to a rapidly changing

environment due to the COVID-19 pandemic. It will require North

Carolina citizens, regardless of any personal feelings they

might have with respect to masks, social distancing, and other

guidelines, to respect and comply with those guidelines for the

safety of all voters and in respect to differing voter concerns.

It will require the best of the Legislative and Executive

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branches, as well as our citizens, to make this General Election

safe and open to all eligible North Carolina voters.

Plaintiffs sue Defendants North Carolina State Board of

Election (“State BoE”), Damon Circosta, Stella Anderson, Ken

Raymond, Jeff Carmon III, David C. Black, Karen Brinson Bell,

the North Carolina Department of Transportation (“DOT”), J. Eric

Boyette, the North Carolina Department of Health and Human

Services (“DHHS”), and Mandy Cohen (together, “Executive

Defendants”) under 42 U.S.C. § 1983, the First and Fourteenth

Amendments, Title II of the Americans with Disabilities Act (the

“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the

Rehabilitation Act (the “RA”), 29 U.S.C. § 794, for preliminary

and permanent injunctive relief. (Pls.’ Am. Mot. (Doc. 31).)

Defendant-Intervenors Philip E. Berger, in his official capacity

as the 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 (“together Legislative

Defendants”), intervened in this case to oppose Plaintiffs’ suit

and to represent the interests of the North Carolina General

Assembly. (Docs. 16, 26.)

For the reasons set forth herein, the court will grant

Plaintiffs’ motion for preliminary injunction in part and deny

it in part.

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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

The court held an evidentiary hearing on July 20–21, 2020,

and oral argument on July 22, 2020. (Minute Entry 07/20/2020;

Minute Entry 07/21/2020; Minute Entry 07/22/2020.) From the

evidence submitted, the court makes the following factual

findings. The court will address other relevant facts as

necessary throughout the Memorandum Opinion and Order. In making

these findings, the court has considered the entire record,

including the declarations and testimony. 1

1. The Novel Coronavirus Pandemic

This case arises during the coronavirus (“COVID-19”)

pandemic.

1During the course of the evidentiary hearing, Defendants

lodged several objections to testimony, which this court took
under advisement. (See Evidentiary Hr’g Tr. vol. 1 (Doc. 112) at
19, 39; Evidentiary Hr’g Tr. vol. 2 (Doc. 113) at 10.) The court
overrules those objections and finds the evidence admitted.
Where necessary, the court will address the weight assigned to
that testimony.
As noted throughout this Memorandum Opinion and Order, this
court has considered all of the evidence, including testimony,
declarations, and pleadings. If a declaration or testimony is
not specifically mentioned or discussed herein, the court has
considered that evidence and finds for purposes of this Opinion
that due to the lack of weight, relevance, or persuasiveness,
the evidence does not affect the findings and conclusions
contained herein.

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 North Carolina Governor Roy Cooper declared a State of

Emergency due to COVID-19 on March 10, 2020. Executive Order No.

116, https://files.nc.gov/governor/documents/files/EO116-SOE-

COVID-19.pdf (last visited July 31, 2020). On May 22, 2020,

Governor Cooper signed Executive Order No. 141 which moved North

Carolina into Phase 2 of the statewide reopening plan. Executive

Order 141, https://files.nc.gov/governor/documents/files/EO141-

Phase-2.pdf (last visited July 31, 2020). Governor Cooper issued

Executive Order No. 147 on June 24, 2020, which extended the

Phase 2 order. Executive Order No. 147, https://files.nc.gov/

governor/documents/files/EO147-Phase-2-Extension.pdf (last

visited July 31, 2020). Executive Order No. 147 implements new

regulations concerning the wearing of face masks for the

prevention of transmission of COVID-19. North Carolina is

currently in Phase 2 of reopening, extended by Executive Order

No. 151 on July 16, 2020. Executive Order No. 151,

https://files.nc.gov/governor/documents/files/EO151-Phase-2-

Extension.pdf (last visited on July 31, 2020). At this time,

under Executive Order No. 151, North Carolina citizens are

encouraged to follow social distancing recommendations,

including remaining six-feet apart from others, avoiding close

contact, wearing face masks, and frequently washing hands or

using hand sanitizer. Id.

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 2. House Bill 1169

On June 11, 2020, the 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 (“HB 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, HB 1169 amended several provisions

relating to witness requirements, poll workers, and

multipartisan assistance teams (“MATs”), among others. Regarding

the witness requirement for absentee ballots, under the prior

law, voters needed the signatures of two witnesses, but those

witnesses did not need to print their name and address. Under

HB 1169, voters now only need the signature of one witness, and

that witness must print their name and address as well (the

“One-Witness Requirement”). Id. § 1.(a). HB 1169 also relaxed

the requirement that all poll workers come from that precinct;

now, only one precinct worker must come from that precinct but

the remaining precinct workers may come from anywhere in the

precinct’s county. Id. § 1.(b). HB 1169 further added a

provision allowing for multipartisan teams to assist registered

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

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other congregate living situations . . . .” Id. § 2.(b). HB 1169

also expanded voters’ ability to request absentee ballots by

making it possible for voters to request absentee ballots

online. Id. § 7.(a).

3. Parties

Plaintiffs LWV and Democracy NC are both nonpartisan

organizations dedicated to encouraging voting and voter

education. (See Second Amended Complaint (“Second Am. Compl.”

(Doc. 30) ¶¶ 14–15.) Individual Plaintiffs Donna Permar, John P.

Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards,

Robert K. Priddy II, and Walter Hutchins are North Carolina

citizens who allege they are impacted by the COVID-19 pandemic

and who all have health issues which could exacerbate the

effects of COVID-19 should they contract it. (Id. ¶¶ 16–22.)

Individual Plaintiff Susan Schaffer lives in North Carolina and

volunteers in assisting people to register to vote as well as

completing absentee ballots. (Id. ¶ 23.)

Defendants include the State BoE, which is the executive

agency responsible for administering election laws in North

Carolina. (Id. ¶ 24.) Damon Circosta, Stella Anderson, Ken

Raymond, Jeff Carmon III, David C. Black, and Karen Brinson Bell

are all employees of the State BoE. (Id. ¶¶ 25–30.) Defendant

Bell is the Executive Director of the State BoE. (Id. ¶ 30.) The

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North Carolina Department of Transportation is the executive

agency which implements the online voter registration system in

North Carolina, and J. Eric Boyette is the Secretary of the

North Carolina Department of Transportation. (Id. ¶¶ 31–32.)

Finally, the North Carolina Department of Health and Human

Services is the executive agency which administers online public

benefits renewals in North Carolina, and Dr. Mandy Cohen is the

Secretary of the North Carolina Department of Health and Human

Services. (Id. ¶¶ 33–34.)

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. ¶¶ 35–36.)

B. Procedural History

Plaintiffs filed their original Complaint on May 22, 2020,

(Doc. 1), and their First Amended Complaint on June 5, 2020,

(Doc. 8). Also, on June 5, 2020, Plaintiffs filed a Motion for

Preliminary Injunction and Request to Expedite briefing and

consideration of the motion, (Doc. 9), and a supporting brief,

(Pls.’ Mem. in Supp. of Mot. for Preliminary Injunction (“Pls.’

Br.”) (Doc. 10)). Plaintiffs seek an injunction against several

North Carolina voting and election laws.

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 On June 10, 2020, Defendant-Intervenors Philip E. Berger,

in his official capacity as the 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, moved to intervene in this case to oppose

Plaintiffs’ suit and to represent the interests of the North

Carolina General Assembly. (Doc. 16.) The court granted the

motion to intervene. (Doc. 26.)

Following the passage of HB 1169, Plaintiffs filed a Second

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

Motion for Preliminary Injunction, (Pls.’ Am. Mot. (Doc. 31)).

Plaintiffs assert that their original preliminary injunction

brief, (Doc. 10), supports their amended motion. (Pls.’ Am. Mot.

(Doc. 31) at 8.)

Legislative Defendants responded, (Leg. Defs.’ Resp. in

Opp’n to Pls.’ Am. Mot. for Preliminary Injunction (“Leg. Defs.’

Resp.”) (Doc. 51)), as did Executive Defendants, (State Defs.’

Resp. to Mot. for Preliminary Injunction (“Exec. Defs.’ Resp.”)

(Doc. 58)). Plaintiffs replied. (Pls.’ Reply in Supp. of Am.

Mot. for Preliminary Injunction (“Pls.’ Reply”) (Doc. 74).)

The court held an evidentiary hearing and oral argument

from July 20 through July 22, 2020. At the evidentiary hearing,

the court heard videotaped testimony from Dr. Megan Murray, an

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epidemiologist at Harvard Medical School, (Doc. 107), the former

head investigator for the State BoE, Marshall Tutor, (Doc. 108),

the former director of the State BoE, Gary Bartlett, (Doc. 109),

and Dr. Paul Gronke, (Doc. 110), for Plaintiffs. The court also

heard the videotaped testimony of Dr. Theodore J. Plush, (Doc.

111), and live testimony from Defendant Bell, (Doc. 106).

Drs. Murray and Plush testified regarding the ways COVID-19 is

transmitted, the risks of certain behaviors, and the efficacy of

mitigation tactics, such as wearing masks and social distancing.

(Docs. 107, 111.) Mr. Tutor opined on the efficacy of the One-

Witness Requirement in investigating and preventing voter fraud.

(Doc. 108.) Mr. Bartlett testified about voter registration

deadlines, the Uniform Hours Requirement, and voting behaviors

in North Carolina. (Doc. 109.) Dr. Paul Gronke discussed the

Uniform Hours Requirement and voter turnout. (Doc. 110.)

Defendant Bell testified to the efforts the State BoE is taking

to ensure voters have access to voting despite the COVID-19

pandemic, as well as the logistical implications of Plaintiffs’

requested relief. (Doc. 106.)

Plaintiffs seek to enjoin eight of North Carolina’s voting

laws. First, they seek an injunction against the 25-day voter

registration deadline under N.C. Gen. Stat. §§ 163-82.6(d), and

163-82.20(g) and (h). (Pls.’ Am. Mot. (Doc. 31) at 4.) Second,

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they seek to enjoin N.C. Gen. Stat. § 163-230.2(a), requiring

requests for absentee ballots be made by a form created by the

State Board of Elections. (Id.) Third, Plaintiffs seek to enjoin

N.C. Gen. Stat. § 163-230.2(a)(4), (f), which prescribes the

types of acceptable identification voters must submit with their

absentee ballot requests forms, “to the extent that it limits

the proof of residency documents . . . to only a North Carolina

driver’s license number, special identification card number, or

the last four digits of his or her Social Security number,” and

instead ask the court to “allow election officials to accept any

proof of residency document acceptable under the Help America

Vote Act (HAVA).” (Id. at 4–5.) Fourth, Plaintiffs seek to

enjoin the restrictions on assisting people in returning

absentee ballot requests, in marking and completing absentee

ballots, and submitting absentee ballots under N.C. Gen. Stat.

§§ 163-226.3(a)(4), 163-226.3(a)(5), 163-226.3(a)(6),

163-230.2(e)(4), 163-231(a), and 163-231(b)(1). (Id. at 5.)

Fifth, they seek to enjoin the One-Witness Requirement under

N.C. Gen. Stat. § 163-231(a), as amended by HB 1169. (Id.)

Sixth, they seek to enjoin N.C. Gen. Stat. § 163-227.6(c), which

requires uniform hours in precincts. (Id.) Seventh, Plaintiffs

seek to enjoin N.C. Gen. Stat. § 163-42(b), as amended by HB

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1169, requiring poll workers to come from the county in which

they serve. (Id. at 6.)

Plaintiffs also request “that the Court preliminarily

enjoin Defendants from violating Plaintiffs’ constitutional and

federal statutory rights with respect to any election in the

state for the November 3, 2020, general election.” (Id.)

Finally, Plaintiffs also ask the court to issue an order

requiring Defendants perform the following actions: that the BoE

Defendants extend the voter registration deadline until 5:00

p.m. on the last Saturday of early voting; that the DOT and DHHS

Defendants process voter registrations online and received in

their offices up until and including 5:00 p.m. on the last

Saturday of early voting for the November 3, 2020 election; that

Defendants expand voter registration via online portals

available through DHHS services; establish contactless drop

boxes for absentee ballots; establish a mechanism for requesting

absentee ballots by phone; permit election officials to accept

any proof of residency documents acceptable under the HAVA as

acceptable forms of identification with absentee ballot

requests; establish mechanisms to cure deficient absentee ballot

requests and absentee ballots; permit mail-in absentee voters to

cast a downloadable Federal Write-In Absentee Ballot if their

timely-requested absentee ballot from the BoE does not arrive in

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sufficient time to ensure the ballot will be counted; establish

a more centralized way in which voters and advocates can monitor

precinct consolidation; permit voters who for reason of

blindness, disability, or an inability to read or write, require

assistance to return an absentee ballot, to obtain assistance

from anyone who is not their employer or union representative;

and finally, implement a remedial plan to educate voters

regarding their options to register to vote and obtain and cast

a ballot. (Id. at 6–8.)

C. Laws at Issue

Plaintiffs challenge several of North Carolina’s voting and

election laws as applied under the circumstances of the COVID-19

pandemic.

1. Voter Registration Deadline Laws

Plaintiffs challenge N.C. Gen. Stat. §§ 163-82.6(d) and –

163-82.20(g) and (h). (Pls.’ Am. Mot. (Doc. 31) at 4.) Section

163-82.6(d) provides (the “25-day Deadline”):

(d) Registration Deadlines for a Primary Election.--

In order to be valid for a primary or election, the
[voter registration] form:

(1) If submitted by mail, must be postmarked at

least 25 days before the primary or
election, except that any mailed application
on which the postmark is missing or unclear
is validly submitted if received in the mail
not later than 20 days before the primary or
election,

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 (2) If submitted in person, by facsimile
transmission, or by transmission of a
scanned document, must be received by the
county board of elections by a time
established by that board, but no earlier
than 5:00 P.M., on the twenty-fifth day
before the primary or election,

(3) If submitted through a delegatee who

violates the duty set forth in subsection
(a) of this section, must be signed by the
applicant and given to the delegatee not
later than 25 days before the primary or
election, except as provided in subsection
(f) of this section.

N.C. Gen. Stat. § 163-82.6(d)(1-3).

The 25-day Deadline has been in force in some form since

1995, 1994 N.C. Sess. Laws 762 (H.B. 1776) § 2, and in its

current substantive form since 2009. 2 2008 N.C. Sess. Laws 2008-

150 (S.B. 1263) § 5.(d). 3 Further, N.C. Gen. Stat. § 163-

82.20(g), (h) reads:

(g) Transmittal From Agency to Board of Elections.--

Any voter registration application completed at a

2 This court has concluded the dates during which these

challenged laws were passed, as many of the challenged laws have
been in force for a lengthy period of time. This context clearly
frames Plaintiffs’ challenges, as it is not the law itself but
the circumstances of COVID-19 that create the burden challenged
here. This court addresses this matter further in the
conclusion.

3 At that time, it was subsection (c), but the language is

nearly identical with the exception of a reference to
“subsection (d)” instead of “subsection (f)” in subsection
(c)(3). (Compare N.C. Gen. Stat. § 163-82.6(d), with 2008 N.C.
Sess. Laws 2008-150 (S.B. 1263) § 5.(d).)

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 voter registration agency shall be accepted by that
agency in lieu of the applicant’s mailing the
application. Any such application so received shall be
transmitted to the appropriate board of elections not
later than five business days after acceptance,
according to rules which shall be promulgated by the
State Board of Elections.

(h) Twenty-Five-Day Deadline for an Election.--

Applications to register accepted by a voter
registration agency shall entitle a registrant to vote
in any primary, general, or special election unless
the registrant shall have made application later than
the twenty-fifth calendar day immediately preceding
such primary, general, or special election, provided
that nothing shall prohibit voter registration
agencies from continuing to accept applications during
that period.

§ 163-82.20(g), (h). This law has been in force in some form

since 1995, 1994 N.C. Sess. Laws 762 (H.B. 1776) § 2, and in its

current substantive form since 2013. 2013 N.C. Sess. Laws 2013-

381 (H.B. 589) § 12.1.(f).

2. Absentee Ballot Requests

Plaintiffs further challenge several restrictions on how a

voter may request an absentee ballot.

First, Plaintiffs challenge N.C. Gen. Stat. § 163-230.2(a),

which requires absentee ballot requests be done on a form

created by the State BoE (the “Form Requirement”). (Pls.’ Am.

Mot. (Doc. 31) at 4.) It reads: “(a) Valid Types of Written

Requests.--A completed written request form for absentee ballots

as required by [N.C. Gen. Stat.] § 163-230.1 is valid only if it

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is on a form created by the State Board . . . .” N.C. Gen. Stat.

§ 163-230.2(a). Subsection (a) has been in force in some form

since 2013, 2013 N.C. Sess. Laws 2013-381 (H.B. 589) § 4.3, and

in its present substantive form since January 2020, 2019 N.C.

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

Second, Plaintiffs challenge N.C. Gen. Stat. § 163-

230.2(a)(4), (f), which place limits on the types of documents

that may serve as proof of residency that a voter must submit

with their absentee ballot request form (the “Identification

Requirement”). (Pls.’ Am. Mot. (Doc. 31) at 4–5.) Section

163-230.2(a), (f) reads:

(a) Valid Types of Written Requests. A completed written

request form for absentee ballots as required by [N.C. Gen.
Stat.] § 163-230.1 is valid only if it is on a form created
by the State Board and signed by the voter requesting
absentee ballots or that voter’s near relative or
verifiable legal guardian. The State Board shall make the
form available at its offices, online, and in each county
board of elections office, and that form may be reproduced.
The request form created by the State Board shall require
at least the following information:

. . . .

(4) One of the following:

a. The number of the applicant’s North

Carolina drivers license issued under
Article 2 of Chapter 20 of the General
Statutes, including a learner’s permit
or a provisional license.

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 b. The number of the applicant’s special
identification card for nonoperators
issued under [N.C. Gen. Stat.] 20-37.7.

c. The last four digits of the applicant’s

social security number.

. . . .

(f) Rules by State Board.--The State Board shall adopt

rules for the enforcement of this section.

§ 163-230.2(a), (f); see also 2020 N.C. Sess. Laws 2020-17 (H.B.

1169) § 5. Subsections (a)(4), (f) have been in force in some

form since 2013, 2013 N.C. Sess. Laws 2013-381 (H.B. 589) § 4.3,

and in its present substantive form since January 2020. 2019

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

Third, 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”). (Pls.’ Am. Mot. (Doc. 31) at 5.)

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:

. . . .

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 (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,[ 4] the United States Postal Service,
or a designated delivery service authorized
pursuant to 26 U.S.C. § 7502(f)(2).

Id. § 163-230.2(e)(2), (4). This law has been in effect since

January 1, 2020. 2019 N.C. Sess. Laws 2019-239 (S.B. 683)

§ 1.3(a).

4 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).

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 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

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).

3. Absentee Ballots

Plaintiffs seek to enjoin several laws relating to the

requesting, completing, and delivering of absentee ballots

themselves.

Plaintiffs seek to enjoin § 163-226.3(a)(4)–(6), which

makes the following acts unlawful:

(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

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 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.

§ 163-226.3(a)(4-6). 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

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(last visited July 31, 2020), and in its current form since

2013. 2013 N.C. Sess. Laws 2013-381 (H.B. 589) § 4.6.(a).

Plaintiffs also seek to enjoin the One-Witness Requirement

under § 163-231(a), as amended by HB 1169, which lists the

procedure for voting an absentee ballot, including the

requirement that one person witness the voter completing their

absentee ballot. Section 163-231(a) reads:

(a) Procedure for Voting Absentee Ballots.--In the

presence of two persons who are at least 18 years of
age, and who are not disqualified by [N.C. Gen. Stat.]
163-226.3(a)(4) or [N.C. Gen. Stat.] 163-237(b1), the
voter shall do all of the following:

(1) Mark the voter’s ballots, or cause them to be

marked by that person in the voter’s presence
according to the voter’s instruction.

(2) Fold each ballot separately, or cause each of

them to be folded in the voter’s presence.

(3) Place the folded ballots in the container-

return envelope and securely seal it, or have
this done in the voter’s presence.

(4) Make the application printed on the

container-return envelope according to the
provisions of [N.C. Gen. Stat.] 163-229(b) and
make the certificate printed on the container-
return envelope according to the provisions of
[N.C. Gen. Stat.] 163-229(b).

(5) Require those two persons in whose presence

the voter marked that voter’s ballots to sign
the application and certificate as witnesses
and to indicate those persons’ addresses.
Failure to list a ZIP code does not invalidate
the application and certificate.

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 (6) Do one of the following:

a. Have the application notarized. The notary

public may be the person in whose presence
the voter marked that voter’s ballot.

b. Have the two persons in whose presence the

voter marked that voter’s ballots to
certify that the voter is the registered
voter submitting the marked ballots.

§ 163-231(a)(1-6). Section 231(a) has been in force in some form

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 July 31, 2020), and has been

in force in its present form since 2018, 2018 N.C. Sess. Laws

2018-146 (H.B. 1029) § 4.8.

HB 1169 amends the requirement that there be two witnesses:

For an election held in 2020, notwithstanding [N.C.

Gen. Stat.] 163-229(b) and [N.C. Gen. Stat.]
163-231(a), and provided all other requirements for
absentee ballots are met, a voter’s returned absentee
ballot shall be accepted and processed accordingly by
the county board of elections if the voter marked the
ballot in the presence of at least one person who is
at least 18 years of age and is not disqualified by
[N.C. Gen. Stat.] 163-226.3(a)(4) or [N.C. Gen. Stat.]
163-237(c), provided that the person signed the
application and certificate as a witness and printed
that person’s name and address on the container-return
envelope. For an election held in 2020,
notwithstanding [N.C. Gen. Stat.] 163-229(b), the
State Board of Elections may prepare applications for
each container-return envelope providing for a space
for the identification of one person witnessing the
casting of the absentee ballot in accordance with
[N.C. Gen. Stat.] 163-231, that person’s signature,
and that person’s printed name and address.

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2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(a).

Plaintiffs further seek to enjoin § 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.

§ 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 July 31, 2020), and in its current form since

2013. 2013 N.C. Sess. Laws 2013-381 (H.B. 589) § 4.4.

The court will refer to the Ballot Delivery Restriction and

N.C. Gen. Stat. § 163-226.3(4)–(6) (together as the “Ballot

Assistance Ban”).

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 4. Precinct Requirements

Finally, Plaintiffs seek to enjoin two laws affecting

polling places and poll workers.

First, Plaintiffs seek to enjoin N.C. Gen. Stat.

§ 163-227.6(c), which requires uniform hours in precincts (the

“Uniform Hours Requirement”):

(c) For all sites approved for one-stop voting under

this section, a county board of elections shall
provide the following:

(1) Each one-stop site across the county shall be

open at that same location during the period
required by [N.C. Gen. Stat.] 163-227.2(b).

(2) If any one-stop site across the county is

opened on any day during the period required
by [N.C. Gen. Stat.] 163-227.2(b), all one-
stop sites shall be open on that day.

(3) On each weekday during the period required by

[N.C. Gen. Stat.] 163-227.2(b), all one-stop
sites shall be open from 8:00 A.M. to 7:30
P.M.

(4) If the county board of elections opens one-

stop sites on Saturdays other than the last
Saturday before the election during the period
required by [N.C. Gen. Stat.] 163-227.2(b),
then all one-stop sites shall be open for the
same number of hours uniformly throughout the
county on those Saturdays.

(5) If the county board of elections opens one-

stop sites on Sundays during the period
required by [N.C. Gen. Stat.] 163-227.2(b),
then all one-stop sites shall be open for the
same number of hours uniformly throughout the
county on those Sundays.

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 (6) All one-stop sites shall be open on the last
Saturday before the election, for the hours
required under [N.C. Gen. Stat.] 163-227.2(b)
for that last Saturday.

§ 163-227.6(c). The Uniform Hours Requirement was originally

passed in 2018, 2018 N.C. Sess. Laws 2018-112 (S.B. 325) § 2

(amending N.C. Gen. Stat. § 163A-1303), and was passed in its

present form in 2019, 2019 N.C. Sess. Laws 2019-239 (S.B. 683)

§ 2.(b).

Second, Plaintiffs seek to enjoin N.C. Gen. Stat. § 163-

42(b), as amended by H.B. 1169, concerning the residency

requirements for poll workers (the “County Residency

Requirement”):

For an election held in 2020, notwithstanding [N.C.

Gen. Stat.] 163-42(b), in making appointments of the
precinct assistants for each precinct in a county, the
county board of elections shall ensure that at least
one precinct assistant is a registered voter of the
precinct, but may appoint registered voters from other
precincts of the same county as precinct assistants
for the remaining positions if there are an
insufficient number of precinct assistants who reside
within the precinct to fill all positions for the
precinct, provided that the registered voter meets all
qualifications to be a precinct assistant other than
residence. For an election held in 2020,
notwithstanding [N.C. Gen. Stat.] 163-41(c), the
county board of elections shall ensure that at least
one position of chief judge or judge is a registered
voter of the precinct, but may appoint a registered
voter from other precincts of the same county to fill
the other two positions of chief judge or judge in a
precinct, provided that the registered voter meets all
other qualifications to be a chief judge or judge
other than residence.

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2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(b). 5

II. ANALYSIS

Legislative Defendants challenge Plaintiffs’ standing to

seek a preliminary injunction regarding their First and

Fourteenth Amendment claims as to the right to vote, their

unconstitutional conditions doctrine claim, and their Voting

5 N.C. Gen. Stat. § 163-42(b) states:

(b) The chairman of each political party in the county

shall have the right to recommend from three to 10
registered voters in each precinct for appointment as
precinct assistants in that precinct. If the
recommendations are received by it no later than the
thirtieth day prior to the primary or election, the
board shall make appointments of the precinct
assistants for each precinct from the names thus
recommended. If the recommendations of the party
chairs for precinct assistant in a precinct are
insufficient, the county board of elections by
unanimous vote of all of its members may name to serve
as precinct assistant in that precinct registered
voters in that precinct who were not recommended by
the party chairs. If, after diligently seeking to fill
the positions with registered voters of the precinct,
the county board still has an insufficient number of
precinct assistants for the precinct, the county board
by unanimous vote of all of its members may appoint to
the positions registered voters in other precincts in
the same county who meet the qualifications other than
residence to be precinct officials in the precinct. In
making its appointments, the county board shall
assure, wherever possible, that no precinct has
precinct officials all of whom are registered with the
same party. In no instance shall the county board
appoint nonresidents of the precinct to a majority of
the positions as precinct assistant in a precinct.

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Rights Act claim. (Leg. Defs.’ Resp. (Doc. 51) at 14, 59, 65.) 6

Legislative Defendants also challenge the ripeness of

Plaintiffs’ Americans with Disabilities Act and Rehabilitation

Act claims, in addition to standing. (Id. at 63.) Defendants

also attack Plaintiffs’ motion for preliminary injunction on the

merits.

Because standing and ripeness are dispositive issues, the

court addresses them first, then addresses Plaintiffs’ motion on

the merits.

A. Standing

Federal district courts exercise limited jurisdiction.

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552

(2005). For a 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)).

6 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.

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The judicial doctrine of 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 party seeking to invoke the federal courts’

jurisdiction has the burden of satisfying Article III’s standing

requirement. Miller, 462 F.3d at 316. To meet that burden, a

plaintiff must demonstrate three elements: (1) that the

plaintiff has suffered an injury in fact that is “concrete and

particularized” and “actual or imminent”; (2) that the injury is

fairly traceable to the challenged conduct of the defendant; and

(3) that a favorable decision is likely to redress the injury.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

In the voting context, “voters who allege facts showing

disadvantage to themselves as individuals have 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, 585 U.S.

____, ____, 138 S. Ct. 1916, 1923 (2018) (quoting Lance v.

Coffman, 549 U.S. 437, 439 (2007) (per curiam)).

In multi-plaintiff cases, “[a]t least one plaintiff must

have standing to seek each form of relief requested in the

complaint.” Town of Chester v. Laroe Estates, Inc., 581 U.S.

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____, ____, 137 S. Ct. 1645, 1651 (2017). Further, if there is

one plaintiff “who has demonstrated standing to assert these

rights as his own,” the court “need not consider whether the

other individual and corporate plaintiffs have standing to

maintain the suit.” Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 264 & n.9 (1977).

Regarding organizations, an organization may establish

standing by suing on its own behalf “when it seeks redress for

an injury suffered by the organization itself.” White Tail Park,

413 F.3d at 458. Organizational Plaintiffs only allege

prudential standing and organizational standing, not

representational standing. 7 (See Pls.’ Reply (Doc. 74) at 3–6.)

The Supreme Court in Havens Realty Corp. v. Coleman, 455

U.S. 363, 378–80 (1982), addressed whether an organization suing

in its own right had standing under the Fair Housing Act. There,

the organization pled that it had been “frustrated by

defendants’ racial steering practices in its efforts to assist

equal access to housing through counseling and other referral

services. Plaintiff [] has had to devote significant resources

to identify and counteract the defendant’s [sic] racially

discriminatory steering practices.” Id. at 379 (internal

7 The court will address Legislative Defendants’ challenge

to prudential standing infra Part II.A.8.

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quotation marks omitted). The Court held that it was improper to

dismiss the organization’s claims for lack of standing, because

[i]f, as broadly alleged, petitioners’ steering

practices have perceptibly impaired [Plaintiff]’s
ability to provide counseling and referral services
for low-and moderate-income homeseekers, there can be
no question that the organization has suffered injury
in fact. Such concrete and demonstrable injury to the
organization’s activities — with the consequent drain
on the organization’s resources — constitutes far more
than simply a setback to the organization’s abstract
social interests[.]

Id. Further, “[t]hat the alleged injury results from the

organization’s noneconomic interest in encouraging [a policy

preference] does not effect [sic] the nature of the injury

suffered, and accordingly does not deprive the organization of

standing.” Id. at 379 n.20 (citations omitted).

The Fourth Circuit addressed organizational standing for a

diversion of resources in Lane v. Holder, 703 F.3d 668 (4th Cir.

2012). There, a gun rights group, challenging a federal statute

restricting interstate transfers of handguns, alleged that it

had been injured “because its resources [were] taxed by

inquiries into the operation and consequences of interstate

handgun transfer provisions.” Lane, 703 F.3d at 670, 675. The

Fourth Circuit held that the group did not have organizational

standing. Id. at 675. The court appeared to distinguish the

situation from that in Havens Realty as based upon the law’s

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impact on the group’s mission and work, as opposed to simply the

fact that the law necessitated expenditures; the closer a

group’s mission is to the challenged conduct, or the more

impacted the group is by the defendant, the more likely the

group is to have organizational standing. Id. at 674–75 (noting

that in Havens Realty, the organization’s impaired function was

a “key component” to its mission).

The court reads Lane as laying out a two-prong test for

finding organizational standing, consistent with Havens Realty.

An organization has organizational standing (1) “when a

defendant’s actions impede its efforts to carry out its

mission,” and (2) forcing the organization to divert its

resources in order to address the defendant’s actions. Lane, 703

F.3d at 674–75.

Other circuits appear to emphasize diversion of resources

in finding organizational standing. See Jacobson v. Fla. Sec’y

of State, 957 F.3d 1193, 1205 (11th Cir. 2020) (“[O]ur precedent

holds that ‘an organization has standing to sue on its own

behalf if the defendant’s illegal acts impair its ability to

engage in its projects by forcing the organization to divert

resources to counteract those illegal acts.’” (quoting Fla.

State Conference of NAACP v. Browning, 522 F.3d 1153, 1165 (11th

Cir. 2008))); Common Cause Ind. v. Lawson, 937 F.3d 944, 952

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(7th Cir. 2019) (“Our sister circuits have upheld the standing

of voter-advocacy organizations that challenged election laws

based on similar drains on their resources. Like us, they have

found that the organizations demonstrated the necessary injury

in fact in the form of the unwanted demands on their

resources.”); Centro de la Comunidad Hispana de Locust Valley v.

Town of Oyster Bay, 868 F.3d 104, 111 (2d Cir. 2017) (“[W]here

an organization diverts its resources away from its current

activities, it has suffered an injury that has been repeatedly

held to be independently sufficient to confer organizational

standing.”); Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d

612, 624 (6th Cir. 2016) (“Because their allegations indicate

that the burden would cause them to change significantly their

expenditures and operation and a favorable decision would

redress that injury, [the Plaintiff] has organizational standing

here as well.”); Scott v. Schedler, 771 F.3d 831, 837 (5th Cir.

2014) (“[A]n organization has standing to sue on its own behalf

where it devotes resources to counteract a defendant’s allegedly

unlawful practices.” (alteration in original) (quoting Ass’n of

Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 360 (5th

Cir. 1999))).

Other circuits have emphasized the requirement that a

frustration of the organization’s goals is required, along with

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a diversion of resources. See E. Bay Sanctuary Covenant v.

Trump, 932 F.3d 742, 765 (9th Cir. 2018) (“We have thus held

that, under Havens Realty, a diversion-of-resources injury is

sufficient to establish organizational standing for purposes of

Article III, if the organization shows that, independent of the

litigation, the challenged policy frustrates the organization’s

goals and requires the organization to expend resources in

representing clients they otherwise would spend in other ways.”

(internal quotation marks and citations omitted)); Food & Water

Watch, Inc. v. Vilsack, 808 F.3d 905, 919–20 (D.C. Cir. 2015)

(“An organization’s ability to provide services has been

perceptibly impaired when the defendant’s conduct causes an

inhibition of [the organization’s] daily operations. . . .

Furthermore, an organization does not suffer an injury in fact

where it expend[s] resources to educate its members and others

unless doing so subjects the organization to operational costs

beyond those normally expended.” (alterations in original)

(internal quotation marks and citations omitted)).

This court applies the standard from Havens Realty.

Organizational standing requires impaired ability to provide its

intended services, including a drain of resources.

Legislative Defendants contend that none of the Plaintiffs

have Article III standing. (Leg. Defs.’ Resp. (Doc. 51) at 14.)

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The court will address each of Plaintiffs’ claims, keeping in

mind that if there is one plaintiff “who has demonstrated

standing to assert these rights as his own,” the court “need not

consider whether the other individual and corporate plaintiffs

have standing to maintain the suit.” Vill. of Arlington Heights,

429 U.S. at 264 & n.9.

1. Voter Registration Laws

Legislative Defendants first contend that all of the

Individual Plaintiffs are already registered to vote in North

Carolina, thus an injunction against the 25-day Deadline poses

no threat of injury to any Individual Plaintiff, and further,

that the Organizational Plaintiffs fail to identify any members

who would independently have standing to challenge this

deadline. (Leg. Defs.’ Resp. (Doc. 51) at 15.) Legislative

Defendants also contend that Organizational Plaintiffs cannot

establish their own standing, because their allegations that

they will have to divert resources to help voters comply with

the current laws are not injuries for standing purposes under

Article III. (Id. at 16.)

Regarding Individual Plaintiffs, the court agrees with

Legislative Defendants. Individual Plaintiffs are all registered

voters in North Carolina. (See Doc. 11-3 ¶ 2; Doc. 11-4 ¶ 3;

Doc. 11-5 ¶ 3; Doc. 11-6 ¶ 2; Doc. 11-7 ¶ 2; Doc. 11-8 ¶ 2; Doc.

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11-9 ¶ 3; Doc. 11-10 ¶ 3.) None of them has declared that they

will have to re-register to vote before the November 2020

election. Individual Plaintiffs therefore are not at risk of

injury due to the 25-day Deadline and therefore have no standing

to seek an injunction of this law.

Regarding Organizational Plaintiffs, LWV’s mission is to

encourage “Americans to participate actively in government and

the electoral process.” (Doc. 11-2 ¶ 3.) It “conducts voter

registration and education initiatives throughout North

Carolina, including voter registration drives, distribution of

voter education materials, and voting-day assistance to help

individuals exercise their right to vote.” (Id. ¶ 6.) It

contends that, due to the COVID-19 pandemic, “many voters will

try to register and be unable to due to the 25-day registration

deadline, and if this deadline remains in force it will have the

effect of frustrating [its] purpose in promoting voter

registration.” (Id. ¶ 8.) LWV further alleges that, if the

25-day Deadline is enforced, it “will be prevented from pursuing

[its] core voter registration mission in helping the expected

influx of voters who need to register after the 25-day deadline,

especially those who are at-risk and unable to safely utilize

same day in-person voter registration.” (Doc. 73-2 ¶ 8.)

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 Because LWV has alleged its mission to register voters will

be at least partly frustrated by the 25-day Deadline, and it

will have to divert resources to address this frustrated

mission, the court finds Organizational Plaintiff LWV has

sufficiently alleged an organizational injury for the purposes

of standing.

2. One-Witness Requirement

Legislative Defendants further contend that, of the

Individual Plaintiffs, only two are “potentially capable of

challenging the Witness Requirement as amended” - Individual

Plaintiff Bentley, who lives alone, and Individual Plaintiff

Hutchins, who lives alone but resides in a nursing home. (Leg.

Defs.’ Resp. (Doc. 51) at 17, 19.) Legislative Defendants argue

Bentley has not alleged she will “not need to leave her house in

the months preceding the election such that she will necessarily

come in contact with at least one person eligible to serve as

her witness,” nor that “no member of her own family will visit

her from out-of-town between now and Election Day who could

serve as a witness,” nor that she could not ask a neighbor to

serve as a witness and comply with Centers for Disease Control

(“CDC”) recommendations for sanitization and social distancing.

(Id. at 17–18.) Regarding Individual Plaintiff Hutchins,

Legislative Defendants argue he does not allege why the six-foot

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social distancing requirements would not preclude another

resident from serving as a witness. (Id. at 19.) Legislative

Defendants further contend a member of a MAT could serve as his

witness under HB 1169. (Id.) Finally, Legislative Defendants

argue Plaintiff Hutchins’s impending injury is speculative,

because the living facility may not be on lockdown by November

2020. 8 (Id.)

The court finds Plaintiffs Hutchins and Bentley have

standing to challenge the One-Witness requirement; other witness

requirements have been treated as a cognizable injury sufficient

to confer standing, and the court is satisfied that requiring

absentee voters to seek out contact with another person, even

adhering to social distancing requirements, still places the

voters at sufficient risk to constitute a cognizable injury for

standing purposes. See, e.g., Ray v. Texas, Civil Action No.

2-06-CV-385 (TJW), 2008 WL 3457021 (E.D. Tex. Aug. 7, 2008)

(addressing a restriction connected to the Texas witness

requirement on the merits); see also People First of Ala. v.

Merrill, Civil Action No. 2:20-cv-00619-AKK, ____ F. Supp. 2d.

8 The court notes that the evidence presented, as well as

the oral arguments, all seem to assume the facts in November
will be similar to those now present. Predicting the future is
beyond the ability of this court; the court thus evaluates the
facts and evidence as presented currently and does not assume
any substantive change.

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____, 2020 WL 3207824, at *6 (N.D. Ala. June 15, 2020) (“(People

First I)”) (“Simply put, a voter always has standing to

challenge a statute that places a requirement on the exercise of

his or her right to vote.”).

Regarding the Organizational Plaintiffs, Legislative

Defendants again argue that diversion of resources is not enough

to secure organizational standing and that Organizational

Plaintiffs fail to allege that their members would not be able

to meet the One-Witness Requirement or identify any such member.

(Leg. Defs.’ Resp. (Doc. 51) at 19–20.) However, only one

plaintiff need establish standing in order for the court to

consider the claim on the merits. Bostic v. Schaefer, 760 F.3d

352, 370–71 (4th Cir. 2014). The court therefore need not

address whether Organizational Plaintiffs have standing to

challenge the One-Witness Requirement, as Plaintiff Bentley’s

standing is sufficient to make these issues justiciable.

3. The Form Requirement

Legislative Defendants further argue the two Individual

Plaintiffs — Cates and Hutchins – who challenge the Form

Requirement no longer have standing due to the change in the law

under HB 1169. (Leg. Defs.’ Resp. (Doc. 51) at 20.)

Under HB 1169, voters may “call the State Board of

Elections or a county board of elections office and request that

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the blank request form be sent to the voter by mail, e-mail, or

fax.” 2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 5.

Additionally, voters may submit an online request for an

absentee ballot by submitting all information required for a

valid written request for an absentee ballot, along with an

electronic signature. Id. § 7(a).

Individual Plaintiff Cates declared that she would request

an absentee ballot online if she were able or would request an

absentee ballot request form by phone. (Doc. 11-5 ¶ 8.) Under

the current amended laws, Cates faces no barriers to acquiring

an absentee ballot, thus she has suffered no redressable injury

and does not have standing to challenge the Form Requirement.

Further, Plaintiff Hutchins’s wife has since submitted a

request for an absentee ballot on his behalf, (Minute Entry

07/09/2020); any claim he may have had regarding the Form

Requirement is now moot.

The court finds no Plaintiff has standing to challenge the

Form Requirement. The court will nevertheless address this issue

on the merits, as an alternative basis for the findings and

conclusions.

4. Drop Boxes

Legislative Defendants also argue that none of Individual

Plaintiffs have “declared a need” for a contactless drop box;

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therefore, none of them have standing to request this order.

(Leg. Defs.’ Resp. (Doc. 51) at 20.) Legislative Defendants

further argue Organizational Plaintiffs lack standing to request

drop boxes because they fail to identify members who would use

drop boxes, therefore, Organizational Plaintiffs lack

representational standing, and, as previously stated, a

diversion of resources is not enough to establish organizational

standing. (Id. at 21.)

The court agrees. While no Individual Plaintiffs indicate

that a lack of drop boxes creates an injury, Organizational

Plaintiff LWV alleges that it has already had to “dedicate

significant resources towards meetings with our local chapters

and other community groups in North Carolina to address . . .

how to help voters concerned about USPS’s ability to deliver

their absentee ballots with safely delivering their ballots

without drop boxes.” (Doc. 73-2 ¶ 6.) However, this diversion of

resources has not stemmed from Defendants’ frustrating

Organizational Plaintiffs’ mission. The court finds this is more

akin to the situation in Lane, in which the diversion of funds

“results not from any actions taken by [Defendants], but rather

from the organization[s’] own budgetary choices.” Lane, 703 F.3d

at 675 (citation omitted). The court finds Plaintiffs do not

have standing to challenge the lack of drop boxes. As with other

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issues, however, the court will, in the alternative, address

this challenge on the merits.

5. Opportunity to Cure Absentee Ballots and

Procedural Due Process

Plaintiffs challenge the lack of a statewide curing process

under both the First and Fourteenth Amendment Right to Vote, as

well as under procedural due process. (Second Am. Compl. (Doc.

30) ¶¶ 104, 136–43.) Plaintiffs’ claims reach both the rejection

of absentee ballots and absentee ballot requests. (Id.)

Legislative Defendants argue Individual Plaintiffs lack

standing with regard to their right-to-vote claim, under which

they allege their right to vote is being unduly burdened by a

lack of an opportunity to cure an absentee ballot mistake, as

well as their procedural due process claim, under which they

allege a lack of a curing procedure violates their procedural

due process rights. (Leg. Defs.’ Resp. (Doc. 51) at 21, 59.)

Because the same conduct underlies both the right-to-vote claim

and the procedural due process claim, the court considers the

standing for these claims together.

Legislative Defendants contend none of the Individual

Plaintiffs allege or declare that they will need an opportunity

to cure deficiencies in submitting their absentee ballots nor

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that they will make a mistake that will require such an

opportunity, thus, their injuries are purely speculative. (Id.)

Legislative Defendants argue that Organizational Plaintiffs

also lack representational standing due to their failure to

identify individual members who would have standing, that

diversion of resources is insufficient to establish

organizational standing, and they lack prudential standing. (Id.

at 21–22, 59.) Legislative Defendants further argue

Organizational Plaintiffs cannot invoke procedural due process

concerns here. (Id. at 59.)

Organizational Plaintiffs allege the lack of a curing

mechanism will “frustrate [their] core mission to encourage

voter participation because, without this safety net in place,

any efforts we spend encouraging voters to use absentee-by-mail

voting could result in voters being inadvertently

disenfranchised if they make a mistake.” (Doc. 73-1 ¶ 2; see

also Doc. 73-2 ¶ 11.) They also allege that, “without being able

to assure voters they will have notice and opportunity to fix

absentee ballots, we will have to dedicate significantly more

resources toward explaining in greater detail the voting process

so that they are more likely to submit it correctly, instead of

the more general instructions typically provided.” (Doc. 73-2

¶ 11.).

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 When a plaintiff seeks relief in the form of a forward-

looking injunction, as is the case here, they must demonstrate

they are “immediately in danger of sustaining some direct injury

as the result of the challenged official conduct and the injury

or threat of injury [is] both real and immediate, not

conjectural or hypothetical.” Lebron v. Rumsfeld, 670 F.3d 540,

560 (4th Cir. 2012) (quoting City of Los Angeles v. Lyons, 461

U.S. 95, 102 (1983)).

“The court is ‘not at liberty to resolve every grievance

over government policy, no matter how significant, for Article

III of the Constitution confines the federal courts to

adjudicating actual cases and controversies.’” Native Angels

Home Health, Inc. v. Burwell, 123 F. Supp. 3d 775, 779 (E.D.N.C.

2015) (quoting Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011)).

In Martin v. Kemp, 341 F. Supp. 3d 1326, 1335-36 (N.D. Ga.

2018), the district court addressed Georgia’s signature-matching

requirement for absentee ballots and found the organizational

plaintiffs had organizational standing, having alleged “high

absentee ballot rejection rates” in at least one county, and

thus, the organizations would need to divert resources towards

warning voters about the risk of signature mismatching. Id. at

1335. The court granted organizational standing to

organizational plaintiffs for their procedural due process claim

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upon making a showing that the organization would have to divert

resources to warn voters about signature mismatch risks under

Georgia’s signature-matching law in light of evidence of high

absentee ballot rejection rates in some parts of the state. Id.;

see also Common Cause/Georgia v. Billups, 554 F.3d 1340, 1350–51

(11th Cir. 2009) (finding NAACP had organizational standing to

bring an Anderson-Burdick right-to-vote challenge to Georgia’s

voter ID law).

Organizational Plaintiffs put forth evidence that around

15% of absentee mail-in ballots were rejected in the March 2020

North Carolina primary. (Doc. 12-5 ¶ 5.) Executive Defendants

argue that “plaintiffs conclude that the lack of a standardized

curative process is the reason these ballots were rejected. But

they provide no evidence to suggest that this is true.” (Exec.

Defs.’ Resp. (Doc. 58) at 35.) The court, however, finds that

the data submitted demonstrates “at least 41% . . . of all

rejected mail in ballots were rejected due to non-compliance

with form requirements,” and thus could presumably have been

cured. (See Doc. 73-7 ¶ 7.)

Further, though Defendant Bell testified that Executive

Defendants are currently working on an absentee voting guide for

the county boards of elections which will include a standardized

curing procedure with notice to voters if their absentee

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application cannot be approved, (Doc. 58-1 ¶ 17), and that there

will be a procedure in place for absentee ballots as well,

(Minute Entry 07/22/2020), these procedures are not yet in

place.

The court finds Organizational Plaintiffs have standing to

challenge a lack of procedure regarding absentee ballots under

both a right-to-vote claim and a procedural due process claim.

See Martin, 341 F. Supp. 3d at 1333–35. Keeping in mind that

only one plaintiff need establish standing in order for the

court to consider the claim on the merits, Bostic, 760 F.3d at

370–71, the court need not address Individual Plaintiffs’

standing to challenge the lack of curing procedure, and further

finds this issue justiciable based upon the standing of

Organizational Plaintiffs.

Plaintiffs, however, failed to put forth any evidence as to

the prevalence of rejections of absentee ballot request forms.

The potential future rejection of an absentee ballot request is

therefore entirely speculative and cannot serve as the basis for

either a right-to-vote claim or a procedural due process claim,

as there is no evidence to suggest the existence of an injury in

fact to any Plaintiff. This court finds none of Plaintiffs have

standing to challenge the rejection of absentee ballot request

forms. This issue will not be further addressed.

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 6. Precinct Requirements

Regarding standing to challenge the County Residency and

Uniform Hours Requirements, Legislative Defendants contend only

one Individual Plaintiff, Plaintiff Permar, has expressed any

desire to vote in person but has only alleged an “entirely

speculative” injury of precinct consolidation. (Leg. Defs.’

Resp. (Doc. 51) at 22.) Legislative Defendants also argue

Organizational Plaintiffs lack standing because they have not

identified individual members nor can resource diversion serve

as an injury. (Id. at 23.)

Plaintiff Permar, who is completely blind, alleges she must

use public transportation in order to go to her polling place.

(Doc. 11-3 ¶¶ 3, 7.) Because her husband is also completely

blind, she cannot complete an absentee ballot with assistance

from another individual without compromising the secrecy of her

ballot and therefore must vote in person using an ADA-compliant

voting machine. (Id. ¶ 5.) She alleges that “[i]f precincts are

consolidated in a manner in which I would not have access to my

polling place via public transportation, it would place a severe

burden” on her ability to vote in person. (Id. ¶ 7.)

The court agrees with Legislative Defendants that Plaintiff

Permar’s alleged injuries are purely hypothetical; there is no

evidence that Plaintiff Permar’s precinct is in imminent danger

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of needing to be consolidated or, even if it were consolidated,

that her new polling place would not be accessible via public

transportation. This is the type of “hypothetical future harm”

which the Supreme Court has held cannot be used to establish

injury-in-fact for standing purposes. See Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 402 (2013). The court finds Plaintiff

Permar does not have standing to challenge the County Residency

Requirement nor the Uniform Hours Requirement.

LWV alleges that “[i]f the uniform hours requirement

remains in place and precincts are consolidated as a result, the

LWVNC [the League of Women Voters of North Carolina] will have

to divert its limited resources in its voter education efforts

to alert its members and those in their communities about the

changes.” (Doc. 11-2 ¶ 20.) Further, Plaintiffs allege Democracy

NC is diverting resources “into never-before-needed recruitment

efforts to ensure that opportunities for in-person voting remain

open to North Carolina voters,” and that “[a]bsent this too-

onerous limitation on poll worker eligibility, we would not need

to fund or staff this initiative . . . and would be able to

focus instead on our core purpose of engaging underrepresented

North Carolinians and encouraging their participation.” (Doc.

73-1 ¶ 2.)

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 However, this diversion of resources has not stemmed from

Defendants’ frustrating Organizational Plaintiffs’ mission. The

court finds this is more akin to the situation in Lane, in which

the diversion of funds “results not from any actions taken by

[Defendants], but rather from the organization[s’] own budgetary

choices.” Lane, 703 F.3d at 675. The court finds this is more of

a “generalized grievance,” than an organizational injury, and,

as such, Organizational Plaintiffs cannot establish standing.

Indeed, the court is concerned about redressability as

well. To satisfy redressability, a plaintiff must demonstrate

“it is likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.” Sierra Club v. U.S.

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

(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 181 (2000)). It is not clear to the

court that, if it were to issue an injunction against the County

Residency Requirement, that it is “likely, as opposed to merely

speculative,” the State BoE and Plaintiffs would then be able to

procure enough poll workers from across the state to prevent

precinct consolidation. This further underscores the court’s

conclusion that Plaintiffs lack standing to challenge these two

laws. Similarly, with respect to the Uniform Hours Requirement,

no evidence has been presented to suggest that injunctive relief

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would in turn prevent the closing of polling places beyond pure

speculation.

The court will nevertheless alternatively address these

issues on the merits.

7. Voting Rights Act

Legislative Defendants also argue Hutchins, as the only

Plaintiff who falls under Section 208 of the Voting Rights Act

(“VRA”), “has not demonstrated that he is affected by either of

the features of North Carolina law” that Plaintiffs challenge.

(Leg. Defs.’ Resp. (Doc. 51) at 65.)

The court finds 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 that is redressable by this court.

See OCA-Greater Houston 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); Priorities USA v.

Nessel, Case No. 19-13341, ____ F. Supp. 3d. ____, 2020 WL

2615766, at *14 (E.D. Mich. May 22, 2020) (addressing the

plaintiffs’ claim that Section 208 preempted Michigan’s absentee

ballot assistance restrictions on the merits). Plaintiff

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Hutchins therefore has standing to challenge North Carolina’s

absentee ballot laws under the VRA.

However, because Plaintiff Hutchins’s wife has already

requested a ballot for him, (Minute Entry 07/09/2020), he no

longer has standing to challenge N.C. Gen. Stat. § 163-

230.2(e)(4), which governs written requests for ballots returned

to a county board of elections by someone other than the

approved list of people. The court therefore finds Plaintiff

Hutchins, the only Plaintiff put forth as having suffered an

injury under the VRA, can only challenge N.C. Gen. Stat.

§§ 163-226.3(a)(4)–(6), 163-231(a), as amended by HB 1169,

163-231(b)(1).

8. Prudential Standing

Legislative Defendants contend Organizational Plaintiffs

lack prudential standing, or third-party standing, because

“organizational plaintiffs’ complaint is that state laws and

policies violate the rights of unspecified North Carolina voters

— third parties who are strangers to this action.” (Leg. Defs.’

Resp. (Doc. 51) at 23.) They argue Organizational Plaintiffs’

relationships with voters is distinguishable from the

relationships courts have traditionally found sufficient for

third-party standing, such as the relationship between doctors

who provide abortions and their patients. (Id. at 24.) Further,

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they contend Organizational Plaintiffs have failed to make the

affirmative showing that the parties whose rights are directly

affected are not the best representatives to bring suit to

enforce those rights. (Id.)

“[P]rudential standing encompasses ‘the general prohibition

of a litigant’s raising another person’s legal rights, the rule

barring adjudication of generalized grievances more

appropriately addressed in the representative branches, and the

requirement that a plaintiff’s complaint fall within the zone of

interests protected by the law invoked.’” Doe v. Va. Dep’t of

State Police, 713 F.3d 745, 753 (4th Cir. 2013) (quoting Elk

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)).

The Supreme Court has “generally permitted plaintiffs to

assert third-party rights in cases where the ‘enforcement of the

challenged restriction against the litigant would result

indirectly in the violation of third parties’ rights.’” June

Med. Servs. L.L.C. v. Russo, ___ U.S. ___, ____, 140 S. Ct.

2103, 2118-19 (2020) (quoting Kowalski v. Tesmer, 543 U.S. 125,

130 (2004)) (collecting cases). The Fourth Circuit summarizes

the test for prudential standing as follows: “To overcome the

prudential limitation on third-party standing, a plaintiff must

demonstrate: (1) an injury-in-fact; (2) a close relationship

between herself and the person whose right she seeks to assert;

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and (3) a hindrance to the third party’s ability to protect his

or her own interests.” Freilich v. Upper Chesapeake Health,

Inc., 313 F.3d 205, 215 (4th Cir. 2002).

Organizational Plaintiffs rebut Legislative Defendants’

argument, contending Organizational Plaintiffs “have developed

close relationships with the voters they assist and who are

presented with an undue burden, and the urgent nature of the

relief needed here presents a hindrance to individual voters to

protect their own rights.” (Pls.’ Reply (Doc. 74) at 6–7.)

Plaintiffs offer the following evidence in support of their

argument. Tomas Lopez, the director of Democracy NC, asserts it

will be helping “voters problem-solve complying with existing

rules: from registering to vote, to successfully requesting and

submitting a valid absentee ballot, to finding a place and time

to vote safely in-person.” (Doc. 11-1 ¶ 18.) Further, Jo

Nicholas, the director for LWV, alleges “[d]irectly assisting

voters is . . . an essential means of how we build relationships

and associate with voters, including our members,” and that

“[v]oters have already communicated to [LWV] their concerns and

their confusion.” (Doc. 11-2 ¶¶ 13, 22.) Finally, Nicholas

alleges that “[i]n order to effectively undertake our voter

education and assistance initiatives, we need the ability now to

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give voters the information and reassurance that they will be

able to vote safely in November.” (Id. ¶ 22.)

As Legislative Defendants note, a district court in

Michigan recently dealt with prudential standing in a voting

case. See Priorities USA, 2020 WL 2615766, at *9. In that case,

the organizational plaintiffs, voting rights organizations,

attempted to assert prudential standing with respect to undue

burden on voting claims under the Fourteenth Amendment. Id. at

*4, *9. The court found “neither a ‘close relationship’ between

the plaintiff organization and the unidentified voters nor a

‘hindrance’ to the voters’ ability to protect their own rights.”

Id. at *9. The same is true here.

Plaintiffs point to Mayor & City Council of Baltimore v.

Azar, Civil Action No. RDB-19-1103, 2019 WL 4415539 (D. Md.

Sept. 12, 2019), for support of their claim to prudential

standing. The court does not find this case persuasive, however.

The court in Azar found the government plaintiffs could assert

third-party standing on behalf of patients, “especially . . .

poor, young teenage girls who seek confidential care and

assistance from the City’s school-based health centers.” Id. at

*5. The court likened the third-parties at issue there to the

paradigmatic example of the doctor-patient relationships in

abortion cases. Id.

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 Here, as in Priorities USA, Organizational Plaintiffs

simply do not put forth evidence to allow the court to find that

they enjoy a “close relationship” with the voters they assist

comparable to the paradigmatic close relationships that other

courts have traditionally found as an adequate basis for third-

party standing. Nor does the court find that Organizational

Plaintiffs have demonstrated any hindrance to any third-party’s

ability to protect his or her own interests. See Freilich, 313

F.3d at 215. The court finds Organizational Plaintiffs may not

assert third-party standing on behalf of unnamed voters in North

Carolina with regard to Plaintiffs’ Fourteenth Amendment right-

to-vote claims.

B. Ripeness Regarding Plaintiffs’ Americans with

Disabilities Act and Rehabilitation Act Claims

Legislative Defendants contend Plaintiffs’ allegations that

Plaintiffs Clark, Edwards, and Priddy “may well” not receive

their absentee ballots in time is “pure speculation,” and thus

Plaintiffs’ ADA/RA claim is not ripe. (Leg. Defs.’ Resp. (Doc.

51) at 63.) Legislative Defendants also argue that Plaintiff

Hutchins has neither standing nor a ripe claim under the ADA and

the RA, because MATs will be available to assist him. (Id.)

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

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

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

denied, ____ U.S. ____, 140 S. Ct. 111 (2019) (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.” Va. Dep’t of State Police,

713 F.3d at 758 (quoting Miller, 462 F.3d at 319). 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)).

Regarding Plaintiffs’ allegations that Plaintiffs Clark,

Edwards, and Priddy “may well not receive their absentee ballots

in a timely fashion,” due to the USPS not being able to keep

pace with the “unprecedented rise in absentee ballot requests,”

and therefore “the failure to offer FWABs [Federal Write-In

Absentee Ballots] as an accommodation and a fail-safe option

would prevent” Plaintiffs from being able to vote in violation

of the ADA, (Second Am. Compl. (Doc. 30) ¶ 149), the court

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agrees with Legislative Defendants that this claim is “based on

hypothetical future harm that is not certainly impending,” that

is, the inability of the USPS to keep pace with the absentee

ballot requests. Clapper, 568 U.S. at 402. Plaintiffs have

offered no evidence that the USPS in North Carolina is likely,

as opposed to speculatively, to fail in keeping pace with

absentee ballot requests; such a proposition “remains wholly

speculative,” and relies upon “future uncertainties.” The court

finds Plaintiffs’ challenge to the failure to offer FWABs is not

ripe.

Turning to Plaintiff Hutchins, the court finds he has

standing and a ripe claim under the ADA and the RA.

As previously noted, a plaintiff’s injury must be “actual

or imminent” in order to establish standing. Leifert v. Strach,

404 F. Supp. 3d 973, 985 (M.D.N.C. 2019); see Clapper, 568 U.S.

at 401-02 (“[R]espondents cannot manufacture standing . . .

based on hypothetical future harm that is not certainly

impending.”).

With regard to Plaintiffs’ allegations that Plaintiff

Hutchins will be unable to vote by absentee ballot under the

current North Carolina absentee ballot framework, the court

finds Plaintiff Hutchins’s ability to receive assistance because

he has an uncontested disability while locked down is not based

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“upon a hypothetical state of facts” – his nursing home is

locked down; thus, he cannot receive in-person assistance from

his wife or from a MAT, which he requires due to his disability.

(Declaration of Walter Hutchins in Supp. of Pls.’ Mot. for

Preliminary Injunction (“Hutchins’s Decl.”) (Doc. 11-9) ¶¶ 5–6.)

Given the ever-changing state of the pandemic, the court cannot

forecast any better than the parties what the situation will be

like in the coming months or if Hutchins’s nursing home will

still be on lockdown. Operating off of the current facts, and

under the assumption Hutchins’s nursing home will continue to

restrict visitors for the foreseeable future, the court finds

Hutchins has a redressable injury and a ripe claim.

However, because Plaintiff Hutchins’s wife has already

requested a ballot for him, (Minute Entry 07/09/2020), he no

longer has standing to challenge N.C. Gen. Stat. § 163-

230.2(e)(4), which governs written requests returned to a county

board of elections by someone other than the approved list of

people. The court therefore finds Plaintiff Hutchins only has

standing to challenge N.C. Gen. Stat. §§ 163-226.3(a)(4)–(6), -

231(b)(1).

C. Political Question Doctrine

Legislative Defendants argue that Plaintiffs’

constitutional voting rights claims must be dismissed under the

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political question doctrine. (Leg. Defs.’ Br. (Doc. 51) at 25.)

The court finds this argument unpersuasive.

Though Legislative Defendants cite to a recently-decided

district court case from the Northern District of Georgia,

Coalition for Good Governance v. Raffensperger, Civil Action No.

1:20-cv-1677-TCB, 2020 WL 2509092 (N.D. Ga. May 14, 2020),

appeal filed, No. 20-12362 (11th June 26, 2020), for this

proposition, the court declines to follow that case. As

persuasively stated by a district court in Alabama, to dismiss

Plaintiffs’ claims as nonjusticiable political questions

would result in the court abdicating from its role to

address disputes that arise under the Constitution or
federal statutes. This is precisely what the
plaintiffs seek in this case — i.e., they ask the
court to decide whether the challenged provisions run
afoul of the Constitution, the VRA, or the ADA. The
court agrees with the Fifth Circuit, which easily
dismissed the contention that a similar claim was a
non-justiciable political question by noting that the
“standards for resolving such claims are familiar and
manageable, and federal courts routinely entertain
suits to vindicate voting rights.” Texas Democratic
Party [v. Abbott], 961 F.3d 389 (5th Cir. 2020). The
plaintiff’s claims are justiciable, and the court can
thus proceed to consider the merits of the motion for
a preliminary injunction.

People First I, 2020 WL 3207824, at *12; see also Texas

Democratic Party, 961 F.3d at 398 (declining to follow

Raffensperger). The court finds this reasoning persuasive and

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applies it here. The court will “proceed to consider the merits

of the motion for a preliminary injunction.”

D. Preliminary Injunction Standard of Review

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest.” Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008). Such an injunction

“is an extraordinary remedy intended to protect the status quo

and prevent irreparable harm during the pendency of a lawsuit.”

Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). To

demonstrate a likelihood of success on the merits, “[a]

plaintiff need not establish a certainty of success, but must

make a clear showing that he is likely to succeed at trial.” Id.

Accordingly, the court first must determine whether Plaintiff is

likely to succeed on the merits.

E. Success on the Merits

The court will first address Plaintiffs’ Constitutional

claims, then will examine Plaintiffs’ ADA and RA claims and will

finish by analyzing Plaintiffs’ Voting Rights Act claims.

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 1. First and Fourteenth Amendments and the Right to
Vote

Plaintiffs challenge several of North Carolina’s election

laws as unconstitutional burdens on the right to vote under the

First and Fourteenth Amendments.

In light of the “‘considerable leeway’ in regulating

‘election processes generally’” states possess, “the Supreme

Court has articulated a “flexible standard” to address ‘a [First

Amendment] challenge to a state election law.’” Fusaro v. Cogan,

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

Constitutional Law Found., Inc., 525 U.S. 182, 191 (1999);

Burdick v. Takushi, 504 U.S. 428, 434 (1992)) (alteration in

original).

The court applies the framework articulated in Anderson v.

Celebrezze, 460 U.S. 780 (1983), and Burdick, in assessing

Plaintiffs’ First and Fourteenth Amendment challenges. 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.”

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Fusaro, 930 F.3d at 257–58 (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 Cty. 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)).

a. Absentee Ballot Laws

Plaintiffs seek to enjoin several of North Carolina’s

absentee ballot laws: the One-Witness Requirement, the

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Identification Requirement, and the Request Assistance Ban. The

court will address each in turn.

i. One-Witness Requirement

The court must determine whether Plaintiffs are likely to

succeed in their constitutional challenge of 2020 N.C. Sess.

Laws 2020-17 (H.B. 1169) § 1.(a), which requires the signature

of a witness, along with the printed name and address of the

witness on the voter’s absentee ballot container-return

envelope. Here, Plaintiff Bentley has standing to challenge this

law. See supra Part II.A.2.

The court must first determine what level of scrutiny to

apply to this regulation; that is, whether the One-Witness

Requirement imposes a burden on the right to vote that is severe

enough to trigger strict scrutiny or whether the court should

apply the Anderson-Burdick balancing test.

Plaintiffs contend the One-Witness Requirement imposes an

“insurmountable barrier” for Plaintiff Bentley. Plaintiff

Bentley lives alone and is at higher risk for serious disease if

she contracts COVID-19. (Doc. 11-6 ¶¶ 1, 3.) Plaintiffs also

argue that the One-Witness Requirement does not further the

State’s interest in preventing and prosecuting voter fraud.

Thus, Plaintiffs argue, the One-Witness Requirement imposes a

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severe burden on these at-risk Plaintiffs; therefore, strict

scrutiny applies. (Pls.’ Br. (Doc. 10) at 34, 37.)

Legislative Defendants assert the Anderson-Burdick

balancing test applies. (Leg. Defs.’ Resp. (Doc. 51) at 38.)

At least two other courts addressing one-witness absentee

ballot requirements have applied the Anderson-Burdick balancing

test. See Thomas v. Andino, Civil Action Nos. 3:20-cv-01552-JCM,

3:20-cv-01730-JCM, ____ F. Supp. 3d. ____, 2020 WL 2617329, at

*19–21 (D.S.C. May 25, 2020); League of Women Voters of Va. v.

Va. State Bd. of Elections, Case No. 6:20-CV-00024, ____

F. Supp. 3d. ____, 2020 WL 2158249, at *8–9 (W.D. Va. May 5,

2020). In Andino, a district court in South Carolina declined to

reach the issue of whether “to apply a strict scrutiny standard

or a lesser level of scrutiny under the Anderson/Burdick

balancing test.” Andino, 2020 WL 2617329, at *18. Instead, that

court assumed, without deciding, that the Anderson-Burdick

balancing test applied and found that the burdens “inflicted by

the Witness Requirement . . . [were] of sufficient magnitude to

warrant the injunction.” Id. at *19. Likewise, a district court

in Virginia, in determining whether to approve a settlement

agreement regarding voting rights, applied the Anderson-Burdick

balancing test to Virginia’s one-witness requirement. League of

Women Voters of Va., 2020 WL 2158249, at *7–8.

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 The Andino court found that it was not required to decide

which test — strict scrutiny or the Anderson-Burdick balancing

test — applies at the preliminary injunction stage: “District

courts may grant temporary relief without deciding federal

constitutional questions prematurely, without forecasting what

the exact final decision will be on the ultimate claim, without

creating an unseemly conflict between sovereigns and without

impairing any state function.” Andino, 2020 WL 2617329, at *18.

The court finds this reasoning as to why the court is not

required to decide which test persuasive and adopts it here. The

court therefore need not decide the constitutional question of

whether strict scrutiny or the Anderson-Burdick balancing test

applies at this time and will apply the Anderson-Burdick

balancing test to the One-Witness Requirement. 9

Turning to the merits of this claim, Plaintiff Bentley is

the only individual Plaintiff affected by the One-Witness

9 Even assuming the court should determine whether a

“severe” burden exists, that is, one which arguably effectively
disenfranchises a voter as argued, the court would find, at this
stage, on the evidence presented and for purposes of this motion
only, that Plaintiffs have not shown that the One-Witness
Requirement imposes a severe burden on voters. For the reasons
explained hereafter, the court finds Plaintiff Bentley has not
been, and will not be, deprived of a reasonable opportunity to
vote in relative safety by the One-Witness Requirement.

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Requirement. 10 She has diagnosed high blood pressure, lives

alone, and does not feel comfortable asking her neighbors to

witness her absentee ballot, given she does not know how

diligent they have been with social distancing. (See Doc. 11-6

¶¶ 3–4, 7–8.) Plaintiffs argue the One-Witness Requirement

places an unconstitutional burden on Plaintiff Bentley that is

not justified by the State’s interest in applying the One-

Witness Requirement. (Pls.’ Br. (Doc. 10) at 41.)

On the State’s interest side of the test, Defendants

contend that the State has an interest in “deterring, detecting,

and punishing voter fraud,” and that the One-Witness Requirement

imposes only a “modest” burden on voting. (Leg. Defs.’ Resp.

10Plaintiff Hutchins also has standing to challenge the

One-Witness Requirement. See supra Part II.A.2. Although he
alleges that he is unable to vote unless assisted by staff,
(Hutchins’s Decl. (Doc. 11-9) ¶¶ 5, 11), which is presently
prohibited under N.C. Gen. Stat. § 163-226.3(a)(4), Legislative
Defendants contend that other residents could witness his ballot
while adhering to social distancing regulations, (Leg. Defs.’
Resp. (Doc. 51) at 64). Plaintiff Hutchins does not offer any
facts to explain why other residents in his nursing home could
not serve as a witness. While this court has concerns about the
ability of other residents to witness Mr. Hutchins’s absentee
ballot, at this point, there is no evidence upon which the court
can find Mr. Hutchins is unjustifiably burdened by the One-
Witness Requirement. The court therefore declines to enjoin the
One-Witness Requirement in light of Plaintiff Hutchins’s
circumstances. Plaintiff Hutchins’s disability — blindness — in
addition to his living in a locked down nursing home, however,
do create other barriers to him voting in the November General
Election that will be addressed infra Part II.E.5–6.

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(Doc. 51) at 38-39; see also Exec. Defs.’ Resp. (Doc. 58) at

28).) They assert voters who live alone can safely satisfy the

One-Witness Requirement by abiding by all social distancing and

sanitization guidelines. (Leg. Defs.’ Resp. (Doc. 51) at 38–39.)

Executive Defendants contend Plaintiffs fail to demonstrate

“what proportion of [the 1.1 million] single-member households

would be unable to comply with the witness requirement.” (Exec.

Defs.’ Resp. (Doc. 58) at 27.)

The court first notes that both district courts in the

Fourth Circuit which have addressed one-witness requirements in

the COVID-19 context found that the burden on voters during this

pandemic was not outweighed by state concerns about voter fraud.

See Andino, 2020 WL 2617329, at *19–21; League of Women Voters

of Va., 2020 WL 2158249, at *8–9. In Andino, the district court

noted that, while the state had an interest in preventing voter

fraud, “the interest will not suffice absent ‘evidence that such

an interest made it necessary to burden voters’ rights.’” Id. at

*20 (quoting Fish v. Schwab, 957 F.3d 1105, 1133 (10th Cir.

2020)). The court found that the government submitted no

evidence of voter fraud in South Carolina other than fleeting

mentions combined with the South Carolina Elections Commissions

Director’s letter stating that the witness requirement offered

no benefit, evidence that undermined the strength of the state’s

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interest in preventing voter fraud. Id. at *20. Thus, the court

reasoned, the “character and magnitude of the burdens” imposed

on the voters “in having to place their health at risk during

the COVID-19 pandemic likely outweigh the extent to which the

Witness Requirement advances the state’s interests of voter

fraud and integrity.” Id. at *21. The court further found that

the state’s interest in preventing fraud and preserving election

integrity “are still served by other means,” such as “requiring

absentee ballot applications to include identifying

information.” Id. at *21 n.22.

Likewise, the district court in Virginia observed that

“[d]uring this pandemic, the witness requirement has become

‘both too restrictive and not restrictive enough to effectively

prevent voter fraud,’” League of Women Voters of Va., 2020 WL

2158249, at *7–8 (quoting N.C. State Conference of NAACP v.

McCrory, 831 F.3d 204, 235 (4th Cir. 2016)), meaning that it

prohibited too many voters from being able to vote and did not

do enough to prevent voter fraud.

The disagreement between Plaintiffs and Defendants is

largely dependent on the degree of risk and the resulting danger

posed by that risk as imposed by the One-Witness Requirement on

voter health. Given the rapidly changing nature of the COVID-19

pandemic, the court finds it necessary to explain at some length

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its factual findings as to how COVID-19 is transmitted and the

different methods people can use to prevent the spread of this

virus. Relatedly, while this court respects and recognizes the

holdings of other district courts in this circuit, this court

views the State’s interest in voter identification and

preventing voter fraud differently on the specific facts

presented here.

(A) Burden on Voters from COVID-19 and

the One-Witness Requirement

The court will begin by giving an overview of the evidence

presented, then will make findings of fact as to the burden on

voters from COVID-19.

Overview of Evidence Presented

The court considered testimony from two expert witnesses on

COVID-19 and the risk to voters: Dr. Murray, an epidemiologist

at Harvard Medical School, and Dr. Plush, an emergency room

doctor in New Jersey. Both testified by videotape shown during

the evidentiary hearing. The court also considered their

declarations submitted as evidence. 11

Plaintiffs submit evidence that North Carolinians are at

particular risk of serious disease should they contract

11In deciding whether a preliminary injunction should

issue, this court has considered the testimony as well as the
written record, including declarations and other pleadings.

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COVID-19. In her declaration, Dr. Murray notes that the CDC has

documented that 33% of North Carolinians are obese, 35% have

diagnosed high blood pressure, and 13.1% have diagnosed diabetes

mellitus, all of which are risk factors for severe disease or

death from COVID-19. (Declaration of Meghan Murray in Supp. of

Pls.’ Mot. for Preliminary Injunction (“Murray Decl.”) (Doc.

12-1) ¶¶ 21, 46.) Dr. Murray observes that on one risk

assessment index, North Carolina ranked “second among the

states” on “being the most vulnerable,” due primarily to its

“high (poor) score in the area of healthcare system factors.”

(Id. ¶ 50.) Dr. Murray interpreted this risk assessment as

suggesting “that in the event of further spread of Covid-19,

North Carolina may experience higher levels of disease,

disability and death than other states experiencing the same

amount of transmission.” (Id.) She further observed another

study which suggested that 39% of adults over the age of 18 in

North Carolina “are at risk for serious disease [from COVID-19]

with older adults making up 54.2% of those at high risk.” (Id.

¶ 48.)

Dr. Murray testified that there are three known ways that

COVID-19 is spread, through respiratory droplets, fomites on

surfaces, and aerosols remaining in the air. (Doc. 107 at

11-13.) With respiratory droplet transmission, “when a person

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coughs, sneezes, talks, sings, they project into the

environment, the air, respiratory droplets . . . . [T]hose

droplets can . . . get to another person because the person

. . . produces respiratory . . . droplets that can be taken

indirectly by the other person when they breathe in the air

. . . in the vicinity” (“Droplet Transmission”). (Id. at 11–12.)

Second, these respiratory droplets can also fall onto objects

and surfaces, which become “fomites” — “things that are

contaminated with the virus that one might be able to touch”

(“Touch Transmission”). (Id. at 12.) Third, if the respiratory

droplets are small enough, they “desiccate because they dry out

in the air” (“Aerosol Transmission”). (Id. at 12.) According to

Dr. Murray, when this occurs, the droplets stay in the

atmosphere for hours and move around in the air currents in

rooms and buildings. (Id.)

Dr. Murray testified that “there’s very strong evidence

that most transmission takes place indoors,” and that

ventilation has a “huge impact” on transmission as well. (Id. at

34.) She further testified that most transmissions occur when

people are presymptomatic or asymptomatic. (Id. at 38.)

Dr. Murray testified, with regard to Aerosol Transmission,

that “there’s increasing evidence that aerosols are also

indicated in viral transmission,” thus, it seems to the court,

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Dr. Murray testified that less is known about aerosol

transmission. (Id. at 13.) Unlike the research Dr. Murray cited

with respect to Droplet Transmission or Touch Transmission,

Dr. Murray did not cite any studies definitively identifying

cases of Aerosol Transmission. Dr. Murray did note a letter from

two authors signed by many epidemiologists and engineers sent to

the World Health Organization (“WHO”), “arguing that airborne

transmission of Covid has been neglected.” (Id. at 16; Doc.

102-4.) It does not appear to the court, however, that

Dr. Murray relied on this letter for any scientific conclusions

regarding Aerosol Transmission. She also noted there is not much

data on how much transmission may occur from Aerosol

Transmission or from Droplet Transmission, but that the

precautionary principle would dictate that people take Aerosol

Transmission seriously and act “as though it’s real until

someone can prove it’s not real.” 12 (Doc. 107 at 49.)

12The precautionary principle, upon which Dr. Murray and

Dr. Plush generally agree, (compare Doc. 107 at 48, with Doc.
111 at 71–72), is an environmental law principle which states
that if the seriousness of a potential risk is unknown, it is
“incumbent on the group that is in governance to assume that it
is risky until proven otherwise.” (Doc. 107 at 48.) This court
declines to adopt that standard. First, to adopt that standard
would, in effect, shift the burden to Defendants to prove the
absence of harm rather than properly placing the burden on
Plaintiffs to demonstrate a likelihood of success of proving the
(Footnote continued)

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 Regarding prevention of transmission, Dr. Murray testified

that sanitizing surfaces or hands with alcohol or other

antibacterial or antiviral substances after touching a surface

could reduce the possibility of Touch Transmission, and that

masks and social distancing protocols may reduce Respiratory

Transmission. (Id. at 13–14.) Aerosol Transmission, however,

poses a “more challenging” problem, because aerosolized droplets

“are rapidly disseminated through a room,” and “they’re small

enough that they are not blocked by the usual barrier methods,”

like most cloth masks. (Id. at 14.)

Regarding the CDC’s definition of when someone has been

“exposed,” such that the risk of transmission is sufficient to

warrant a 14-day quarantine, defined as 10-15 minutes in “close

contact” with someone who has COVID-19, Dr. Murray testified

that this guidance is guided by the principle that, as more time

is spent with someone, they are exhaling more breaths and thus

the number of viral particles in the air increases, which

increases the risk of transmission. (Id. at 22, 27.) She

existence of an unconstitutional burden on the right to vote.

Second, as explained hereafter, this court finds Dr. Plush’s
testimony persuasive, that Aerosol Transmission has not been
shown at this time to be an infective risk for COVID-19, and
therefore this court does not find the precautionary principle
suggests or supports a finding of an unconstitutional burden on
the right to vote exists from a risk of Aerosol Transmission.

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stressed, however, that the CDC’s time-limit does not mean that

one cannot be infected in under that length of time. (Id. at

25.) 13

Regarding the efficacy of different types of face masks,

Dr. Murray testified that N95 masks, which are used for

healthcare and laboratory workers working with aerosol-based

infections, are good for filtering out the very small aerosol

molecules. (Id. at 40.) Surgical or medical masks are less

effective at filtering out the aerosol particles and “are really

designed to prevent the wearer from infecting others.” (Id. at

43.) Cloth masks, she testified, are less efficacious at

preventing transmission, especially given so few people wear

masks correctly. (Id. at 44.)

13
Both Dr. Murray and Dr. Plush minimized reliance upon the
CDC’s definition of close contact as a viable means of
determining a potential transmission. Instead, both witnesses
acknowledged the CDC’s definition of close contact was based
upon limited study and solely for the purpose of investigating
the spread of COVID-19, not for insuring safety from
transmission. (See Doc. 107 at 24–30; Doc. 111 at 51–52.)
Insuring safety is predominately dependent upon social
distancing and protective equipment. Both witnesses acknowledged
that transmission could occur in less than ten minutes. (Doc.
107 at 25; Doc. 111 at 52.) However, both witnesses also
acknowledged that risk of exposure did increase over time, and
decreased time of exposure to others involved less risk but
certainly not no risk. (Doc. 107 at 25–26; Doc. 111 at 52.)

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 Regarding mitigation tactics one could use while witnessing

another’s absentee ballot, Legislative Defendants asked

Dr. Murray the following:

Q: . . . Isn’t it true that if two people stand

outside 12 feet apart wearing a mask, let’s say a
surgical mask, not talking, not touching their face,
maintaining hand hygiene, and the encounter is 30
seconds, that there is a very low risk -- a very low
risk -- of transmission between those two individuals
on a sunny day, correct?

A. I think that’s reasonable.

(Id. at 93.)

Finally, Dr. Murray did not seem to expect any great change

in infection numbers, or any chance of the United States

achieving herd immunity, or a vaccine being widely available

prior to the November General Election. (Id. at 53, 109.)

Turning to Dr. Plush, Legislative Defendants’ expert

witness, he is a Board-certified physician. (Doc. 111 at 18.) He

is currently treating COVID-19 patients and has treated between

seventy-five and one hundred COVID-19 patients since the

beginning of the global pandemic. (Id.)

He disagrees with the risks posed by COVID-19, pointing to

statistics showing only “5% of the current active infections [in

North Carolina] are severe enough to require hospitalization,

which is far lower than the 39% considered at higher-risk for

serious complications.” (Doc. 51-6 ¶ 10.)

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 Dr. Plush agreed with Dr. Murray concerning Droplet

Transmission and Touch Transmission. (Doc. 111 at 19–20.) He

testified that he was more skeptical of Aerosol Transmission,

stating, “[t]he fact that there is some aerosols or particles in

the air, again, don’t prove any airborne transmission.” (Id. at

59-60.) He expanded on Touch Transmission, noting that COVID-19

“is not able to be contracted just by touching the surface with

your hand. It cannot travel through the skin of your hand. It

can only be transmitted when you touch a mucous membrane of your

face, like your nose or mouth.” (Id. at 21.) He emphasized,

however, that Touch Transmission is “likely not the main way of

transmission,” given there “are no specific reports documenting

[Touch] [T]ransmission only, and that’s because usually people

who come in contact with infectious surfaces are often in

contact with the infectious person themselves, so it’s often

difficult to separate fomite transmission from droplet

transmission.” (Id. at 19–20.) And Dr. Plush agreed with

Dr. Murray that a person could be infected in fewer than 15

minutes, despite the CDC’s guidance. (Id. at 21, 52.)

Regarding the application of the precautionary principle to

the risk of Aerosol Transmission, Dr. Plush testified that,

given that many people have been exposed to symptomatic COVID-19

patients and have not become infected, thus, “there is some

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evidence to show that there is not airborne transmission of this

disease in every single case,” the costs of abiding by the

precautionary principle “would potentially outweigh any

benefits.” (Id. at 71–72.)

Dr. Plush further cited to a University of Nebraska study,

in which researchers found air samples that were positive for

COVID-19 RNA, but there were “no signs of infectivity or viral

replication.” (Id. at 53.) Dr. Plush interpreted this study to

mean “the mere presence of airborne particles in itself does not

prove airborne [aerosol] transmission.” (Id.)

He also agreed with Dr. Murray as to the relative efficacy

of the various types of masks: N95 masks are more beneficial

than surgical or cloth masks, given N95 masks, when worn

correctly, filter out more particles, including potential

aerosolized COVID-19 particles, which surgical and cloth masks

are not able to do. (Id. at 25, 86–87.)

Regarding the efficacy of other preventative measures,

Dr. Plush testified that being outside would reduce the risk of

transmission, given the increased air flow as compared to indoor

environments. (Id. at 29.) He also testified that physical

distance is a “very important part” of the measures one should

take, “staying at least six feet back,” (Id. at 30), and that

more than six feet, such as three meters, further reduces risks,

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(Id. at 30-31). He agreed with Dr. Murray that different

chemicals, such as “a 60 percent ethanol solution or a 70

percent isopropyl alcohol solution,” on surfaces and on hands,

in addition to something like Lysol, with 0.1 percent sodium

hypochlorite, on surfaces, would be effective at killing the

virus. (Id. at 22–23.)

Regarding voting in general, Dr. Plush testified to the

following: “I do not believe that there is significant risk if

the . . . guidance from the CDC, including physical distancing,

wearing a face mask, diligent hand hygiene, and environmental

decontamination is followed . . . .” (Id. at 37.) Dr. Plush also

stated that if those guidelines are followed, “then the risk to

the individual is very low and can approach zero.” (Id.) He

still cautioned that voting by mail, even with a witness, would

most likely be safer than voting in person. (Id. at 76; see also

id. at 40.)

Findings of Fact

The court finds the following facts:

First, regarding the risk to North Carolinians, the court

does not find Dr. Murray’s assertions necessarily at odds with

Dr. Plush’s assertions. The study to which Dr. Murray cites

merely states that 39% are “at risk for serious disease,” not

that 39% will get an infection severe enough to require

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hospitalization. Indeed, Dr. Plush asserts that 69% of all

COVID-19 patients who died in North Carolina “had at least one

significant underlying medical condition,” and “82% of all

deaths were in patients over the age of 65.” (Doc. 51-6 ¶ 9.)

Second, Dr. Murray and Dr. Plush agree that Droplet

Transmission and Touch Transmission are both ways COVID-19 14 can

be transmitted. This court adopts that as a fact. Dr. Murray and

Dr. Plush also seem to agree that the risk of transmission

through Touch Transmission is less than Droplet Transmission.

(See Doc. 73-4 ¶ 15 (“However, the CDC notes ‘transmission of

coronavirus occurs much more commonly through respiratory

droplets than through objects and surfaces, like doorknobs,

countertops . . . .’”); Doc. 51-6 ¶ 3 (“Indirect infection,

through touching of an infected surface then touching one’s

eyes, nose or mouth, may be possible, but it is not the main way

that the virus is spread”).) The court finds as a fact that the

risk of Touch Transmission is significantly lower than Droplet

Transmission.

14This court recognizes that the experts refer to SARS-CoV-

2 as the virus and COVID-19 to refer to the disease caused by
the virus. Nevertheless, for ease of reference in this opinion,
this court has used the term COVID-19 to refer to both the virus
and the disease.

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 Third, the court credits Dr. Plush’s testimony and finds

that Plaintiffs’ evidence does not establish that Aerosol

Transmission is an infective risk which imposes a separate

burden on voters. The court makes this finding for the following

reasons.

The opinions of Dr. Plush and Dr. Murray diverge with

respect to Aerosol Transmission. The risk of Aerosol

Transmission is a concern of Dr. Murray’s. (See Murray Decl.

(Doc. 12-1) ¶¶ 25-28; Doc. 73-4 ¶¶ 3–5.) After citing a number

of studies suggesting the possibility of Aerosol Transmission,

(id.), Dr. Murray concludes: “the mode respiratory transmission

of SARS-CoV2 is incompletely understood, but there is growing

evidence that transmission can occur through both large droplets

and by smaller particles (aerosols),” (Doc. 73-4 ¶ 5).

Dr. Plush, on the other hand, states that Droplet and Touch

Transmission

are the only two known and undisputed ways for the
virus to spread. The notion that there may be airborne
transmission of SARS-CoV-2 is controversial and the
results are mixed. . . . Importantly, the World Health
Organization (WHO) acknowledges that “airborne spread
has not been reported for COVID-19 and it is not
believed to be a major driver of transmission based on
available evidence” after an analysis of 75,465
COVID-19 cases in China, reported no evidence of
airborne transmission.

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(Doc. 51-6 ¶ 3 (quoting Report of the WHO-China Joint Mission on

Coronavirus Disease 2019 (COVID-19), WHO (Feb. 28, 2020),

https://bit.ly/3eCvjfp (last visited August 2, 2020)).) 15 Notably

to this court, Dr. Murray did not dispute Dr. Plush’s citation

of the WHO’s conclusion. Instead, during her testimony,

Dr. Murray identified a letter from two authors to the WHO,

(Doc. 121-3), signed by “something like 240” scientists “making

the case that really WHO needs to kind of back off their claim

that this [aerosol transmission] don’t play a major role in

Covid transmission.” (Doc. 107 at 16–17, 18.) Dr. Murray

acknowledged that she would not rely upon the letter, (id. at

50), but she did say the proffered evidence “bolstered their

position.” (Id.) On cross-examination, Dr. Murray acknowledged

that she did not know what percentage of people in the United

States have caught the virus as a result of aerosol droplets

hanging suspended in the air. (Id. at 81.) Dr. Murray also

identified recent guidance from the WHO which states that, “In

15To be clear, this court is evaluating the facts to

determine whether Plaintiffs have established a likelihood of
success on the merits as to an unconstitutional burden on the
right to vote. Determining whether Aerosol Transmission is a
risk, and therefore a potential burden, is a necessary part of
the factual analysis. In order to assess the risk, this court
does not apply a standard which requires Plaintiffs to prove
Aerosol Transmission is “undisputed.” Instead, the court
determines whether Plaintiffs have established a burden based
upon facts establishing a “likelihood of success on the merits.”

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these outbreaks, aerosol transmission, particularly in these

indoor locations where there are crowded and inadequately

ventilated spaces where infected persons spend long periods of

time with others, cannot be ruled out. More studies are urgently

needed to investigate such instances and assess their

significance for transmission of COVID-19.” (Pls.’ Ex. 4 (Doc.

121-4 at 2.)

Dr. Plush testified that, in his opinion, he does “not

believe there is significant risk” from in-person voting “if the

. . . guidance from the CDC, including physical distancing,

wearing a face mask, diligent hand hygiene, and environmental

decontamination is followed, then the risk to the individual is

very low and can approach zero.” 16 (Doc. 111 at 37.) Dr. Plush,

in addressing Airborne Transmission directly, testified:

A. Well, there . . . there’s been no evidence

and no proof of actual airborne transmission of SARS-
CoV-2.

There has been some studies that have found

viral RNA in the air, such as the one study quoted by
Dr. Murray from University of Nebraska that did find
air samples that were positive for SARS-CoV-2 RNA.

When they looked at it and tried to culture

it, there was no signs of infectivity or viral
replication.

16As will be explained in a later section, this court finds

that in-person voting can be conducted relatively safely so long
as these guidelines, described by Dr. Plush, are followed.

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 So the mere presence of airborne particles
in itself does not prove airborne transmission.

The airborne transmission that’s defined by

the CDC is airborne particles that are able to be
infective over distance and time.

And as of right now there is no direct

evidence of airborne transmission.

(Id. at 53.) Later, Dr. Plush testified “[t]here is no studies

proving airborne transmission. That’s according to the latest

WHO transmission scientific brief that was just published in

July of 2020.” (Id. at 60.) Dr. Plush acknowledged airborne

transmission is “possible,” (id.), although, as stated, there is

no direct evidence of airborne transmission. 17 Finally, as stated

in the most recent WHO advisory Q&A, presented during

Dr. Murray’s testimony, the information provided states: “In

these outbreaks, aerosol transmission . . . cannot be ruled out.

More studies are urgently needed to investigate such instances

and assess their significance for transmission of COVID-19.”

(Pls.’ Ex. 4 (Doc. 121-4) at 2.) Notably, no evidence was

17Dr. Plush refers to “airborne transmission” and

Dr. Murray referred to that same issue as Aerosol Transmission.
In this opinion, this court uses the term Aerosol Transmission
to refer to those smaller respiratory droplets (generally less
than 5 micrometers) which “desiccate because they dry out in the
air,” and may remain in the atmosphere and in air currents in
rooms and stay in the atmosphere for hours. (Doc. 107 at 12.)
The terms “airborne transmission” and “Aerosol Transmission” are
synonymous for purposes of this opinion.

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presented to suggest the WHO withdrew its earlier findings as

described by Dr. Plush.

Thus, if Aerosol Transmission is a risk, both Dr. Plush and

Dr. Murray acknowledge that mitigation of that risk is

difficult. (Doc. 107 at 14; Doc. 111 at 61 (“Social distancing

itself is not effective . . . for an airborne pathogen”).)

This court finds the evidence is too speculative at the

present time to support a finding that aerosol droplets are

capable of being infective over distance and time. In reaching

this conclusion, this court credits the testimony of Dr. Plush,

which relies, at least in part, upon the WHO guidance, for the

following reasons.

Dr. Plush’s opinion that the existence of COVID-19 airborne

particles is not the same as a risk of infective transmission is

significant to this court. As Dr. Plush points out, “one study

quoted by Dr. Murray from University of Nebraska that did find

air samples that were positive for SARS-CoV-2 RNA” also

apparently found that there “were no signs of infectivity or

viral replication.” (Doc. 111 at 53.) Whether COVID-19 is

airborne or whether it remains infective if it is in the air “is

a hypothetical and is not proven.” (Id. at 104.)

Further, Dr. Murray concludes that “[i]t is also possible

that Covid-19 is transmitted as an aerosol,” (Doc. 12-1 ¶ 25),

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while Dr. Plush, reviewing much of that same literature,

concludes “there’s been no evidence and no proof of actual

airborne transmission of SARS-CoV-2,” (Doc. 111 at 53). This

court has reviewed literature cited by Dr. Murray and Dr. Plush

to the extent possible, 18 and finds Dr. Plush’s conclusions, for

purposes of this preliminary injunction motion and on this

evidence, compelling.

For example, in Dr. Murray’s declaration, (Murray Decl.

(Doc. 12-1) ¶ 25), when explaining that a study suggesting

“aerosol spread of SARS-CoV-2 is indeed possible,” (id.), Dr.

Murray further explained that:

[t]hese findings are consistent with case reports of

Covid-19 patients who were infected in settings in
which they did not have direct contact with others. In
one case, 45 people were diagnosed with Covid-19 after
attending a choir practice in Washington State in
early March although they had no direct physical
contact with each other.

(Id.) That allegation is indeed alarming with respect to the

possibility of Aerosol Transmission. The article cited by Dr.

Murray, Hamner, et al., High SARS-CoV-2 Attack Rate Following

18To be clear, this court is not a medical doctor nor an

epidemiologist. This court has reviewed cited literature in an
effort to consider and weigh, for purposes of this opinion, the
diverging testimony with respect to Aerosol Transmission. This
court’s conclusions, as explained hereafter, should not be
understood to reject the possibility that Aerosol Transmission,
through future research, may be found to play a role in
transmission as suggested by Dr. Murray.

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Exposure at a Choir Practice - Skagit County, Washington, March

2020, Morbidity & Mortality Weekly Report Vol. 69 (May 15, 2020)

https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6919e6-H.pdf (last

visited August 1, 2020), is enlightening. While true, as

Dr. Murray states, “[n]o one reported physical contact between

attendees,” id. at 607; see Doc. 12-1 ¶ 25, the article also

states:

The 2.5-hour singing practice provided several

opportunities for droplet and fomite transmission,
including members sitting close to one another,
sharing snacks, and stacking chairs at the end of the
practice. The act of singing, itself, might have
contributed to transmission through emission of
aerosols, which is affected by loudness of
vocalization.

High SARS-CoV-2 Attack Rate at 606. The Washington State

outbreak involved attendees who were in close contact and

therefore subject to Droplet and Touch Transmissions. Notably,

while the article expresses concern over the possibility of

aerosol transmission, the authors do not suggest any mitigation

other than following CDC guidelines:

This outbreak of COVID-19 with a high secondary attack

rate indicates that SARS-CoV-2 might be highly
transmissible in certain settings, including group
singing events. This underscores the importance of
physical distancing, including maintaining at least
6 feet between persons, avoiding group gatherings and
crowded places, and wearing cloth face coverings in
public settings where other social distancing measures
are difficult to maintain during this pandemic. . . .
Current CDC recommendations, including maintaining

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 physical distancing of at least 6 feet and wearing
cloth face coverings if this is not feasible, washing
hands often, covering coughs and sneezes, staying home
when ill, and frequently cleaning and disinfecting
high-touch surfaces remain critical to reducing
transmission.

Id. at 609-10. Dr. Murray’s opinion that the case report is

consistent with the study, while true, is not quite as

compelling. Dr. Plush’s opinion that Aerosol Transmission is

hypothetical and has not been proven is a fair assessment of the

evidence presented by that article.

Both Dr. Plush and Dr. Murray recognize the diverging

conclusions suggested and drawn from the research and

literature. For example, Dr. Murray cited a study from Iran in

which “air samples taken from a distance of 2 to 5 m from

patient beds were negative for SARS-CoV-2 RNA.” (Doc. 73-4 ¶ 4.)

Similarly, Dr. Plush cited a study from China which “did find

SARS-CoV-2 positive aerosols in 14 out of the 40 rooms tested

containing COVID-19 positive intensive care unit patients.”

(Doc. 51-6 ¶ 3.) The court, however, after reviewing studies

cited by both Dr. Murray and Dr. Plush, find Dr. Plush’s

characterization more compelling and entitled to greater weight

for purposes of this Memorandum Opinion.

Finally, the court also finds Dr. Plush’s opinions are

compelling given his ongoing treatment of COVID-19 patients and

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daily exposure to the virus. Dr. Plush is an attending physician

at Inspira Medical Center and an adjunctive professor affiliated

with Cooper University Hospital. (Doc. 51-6 ¶ 1.) His work, and

the facilities with which he is associated, are directly

implicated by a suggestion that Aerosol Transmission might be

associated with the hospital-related spread. His review of the

studies and apparent disagreement with a conclusion that

infective airborne transmission has been shown is notable. That

Dr. Plush has treated between seventy-five and one hundred

patients for coronavirus over the past four or five months is

also significant to the court. (Doc. 111 at 18.) He is in

contact with COVID-19 patients often. (Id.) Dr. Plush is not an

epidemiologist and has not devoted his time to “dynamic modeling

of epidemics . . . ; cohort studies on host and pathogen

specific determinants of disease transmission,” and “SARS-CoV-2

and its incidence” like Dr. Murray. (See Murray Decl. (Doc.

12-1) ¶¶ 3, 5.) However, Dr. Plush’s professional interest in

modes of transmission of COVID-19 while being exposed to active

cases is clear. Dr. Plush has not only studied the research and

literature; but he has also drawn his opinions and conclusions

while being exposed to individuals with COVID-19 for a period of

several months. These facts compel this court to weigh more

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heavily on Dr. Plush’s review and study of the literature and

research which, at present, appears at best uncertain.

The court acknowledges that Dr. Plush admitted that he had

not reviewed the Aerosol Transmission studies cited in the WHO

letter, nor had he addressed another study dealing with Aerosol

Transmission. (Doc. 111 at 84.) The court nevertheless credits

Dr. Plush’s testimony that he has reviewed “a large majority of

the research,” (id.), and finds that his failure to review the

studies cited in the WHO letter and the other study about which

he was asked does not materially affect the reliability of his

testimony regarding Aerosol Transmission. While it is close

issue, this court finds Dr. Plush’s opinion persuasive.

This court therefore finds as a fact for purposes of this

hearing only and on the record before it that the presence of

airborne COVID-19 particles is different from infective risk

leading to Aerosol Transmission. This court further finds the

possibility of infective risk from airborne particles is

hypothetical and not proven. This court therefore further finds

that no additional burden or risk is placed on a voter as a

result of Aerosol Transmission.

This court’s finding that Aerosol Transmission has not been

shown on this evidence to be a source of infective transmission

should not be misconstrued. These findings do not in any way

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suggest CDC guidelines suggesting properly operating ventilation

systems, open windows and doors, and other reasonable

precautions can be ignored. This court finds many reasons those

guidelines should be followed; taking steps to mitigate the risk

of Droplet Transmission and perhaps also the presence of any

aerosols are reasonable safety precautions regardless of this

court’s finding.

This court’s finding should also not be misconstrued to

suggest Aerosol Transmission will not be proven through

additional, future research as an independent source of

infective transmission. As Dr. Plush reports:

The notion that there may be airborne transmission of

SARS-CoV-2 is controversial and the results are mixed.
In a Hong Kong hospital, a COVID-19 positive patient
placed in an open ward came in close contact with 10
other patients and 7 staff members, none of which were
protected with n95 respirators. After 28 days of
surveillance, all the close contacts remained
asymptomatic and there were no positive cases
identified. Similarly, air samples taken from 6
separate COVID-19 positive patients, singly isolated
in a negative pressure room, were negative for SARS-
CoV-2 RNA. Conversely, a study from China did find
SARS-CoV-2 positive aerosols in 14 out of the 40 rooms
tested containing COVID-19 positive intensive care
unit patients.

(Doc. 51-6 ¶ 3.) More recently, the WHO acknowledged:

There have been reported outbreaks of COVID-19 in some

closed settings, such as restaurants, nightclubs,
places of worship or places of work where people may
be shouting, talking, or singing. In these outbreaks,
aerosol transmission, particularly in these indoor

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 locations where there are crowded and inadequately
ventilated spaces where infected persons spend long
periods of time with others, cannot be ruled out. More
studies are urgently needed to investigate such
instances and assess their significance for
transmission of COVID-19.

(Pls.’ Ex. 4 (Doc. 121-4) at 2.) There is reasonable concern

over the possibility of Aerosol Transmission from credible

sources, including Dr. Murray. Those sources, including the WHO

letter, are sufficient, as the WHO points out, to support

further investigation and research. But at this time, on the

record before this court, the court does not find Aerosol

Transmission presents an infective risk which burdens an

individual’s right to vote.

After review of the testimony and evidence as to Droplet,

Touch, and Aerosol Transmissions, this court makes the following

additional findings of fact. This court credits the testimony of

both Dr. Murray and Dr. Plush in terms of known risks of

transmission and finds that currently, the risk of contracting

COVID-19 from either procuring a witness or witnessing another’s

absentee ballot when done in accordance with the CDC-recommended

precautions, including maintaining a distance of 6 feet or more

for social distancing, does not pose a serious risk to voters.

Voters can have another person witness their absentee ballot

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without violating social distancing procedures or “exposing”

themselves to someone with COVID-19.

This court has examined the sample ballot, (see Doc.

115-1), and is familiar with the process of witnessing another

individual’s signature to a document. The court finds, as a

result of its examination of the sample ballot, that a voter

should be likely able to fill out and sign the two-page ballot

in a relatively short period of time, including the witnessing

process, in fewer than ten minutes. The court further finds that

a voter can vote absentee by mail without serious risk by

adhering to social distancing measures and following all CDC

guidelines. The court further recognizes and finds that some

risk of Touch Transmission could arise in the process of moving

the ballot from voter to witness and back, but that this risk

can be mitigated, if not completely eliminated, by surface

cleaning and handwashing in accordance with CDC guidelines; this

risk is thus also minimal. The court therefore does not find the

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One-Witness Requirement unduly burdensome on even high-risk

voters. 19

Although this section of the Memorandum Opinion and Order

specifically addresses the One-Witness Requirement to absentee

voting, the same evidence relates to the safety of voting in

general. Therefore, relatedly, based upon the evidence presented

with respect to in-person voting, this court finds that there is

no significant risk to in-person voting “if the . . . guidance

from the CDC, including physical distancing, wearing a face

mask, diligent hand hygiene, and environmental decontamination

is followed . . . .” (Doc. 111 at 37.) If those guidelines are

19
Obviously, if two or more people should gather and none of
those individuals have COVID-19 in any form, then the risk of
spread of COVID-19 does not exist. However, because the spread
of COVID-19 occurs substantially with presymptomatic and
asymptomatic carriers, and the prevalence of presymptomatic and
asymptomatic individuals in the state is not known, then
guidance, reason, safety, and common sense require all
individuals, including this court, to assume that if two or more
individuals gather in some form, one of those individuals may be
an unknowing, potential carrier of COVID-19, requiring all
parties to act accordingly. In assessing the testimony and
finding the facts, this court has considered as a fact that,
during this pandemic, evidence, reason, and common sense mandate
that individual interactions be considered in light of the
existence of presymptomatic and asymptomatic carriers.

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followed, “then the risk to the individual is very low and can

approach zero.” 20 (Id.)

The court now turns to examining the weight of the State’s

interests in keeping the One-Witness Requirement.

(B) The State’s Interests

The court considered all the evidence submitted,

particularly the testimony of Marshall Tutor, the former lead

investigator for the State BoE, and of Defendant Bell, in

determining the weight of the State’s interest in retaining the

One-Witness Requirement, as well as the declaration from Ken

Block, a data analyst.

Marshall Tutor testified that a witness requirement will

not deter someone intent on committing voter fraud. (See Doc.

20
Both Dr. Murray and Dr. Plush expressed reservations as
to the efficacy of masks. (Doc. 107 at 42–43; Doc. 111 at 86–
87.) Defendant Bell, during her testimony, advised the court
that the State BoE takes the position that masks cannot be
required of an individual as a condition to exercise the right
to vote, but that social distancing could be required in order
to maintain order at polling stations. (Evidentiary Hr’g Tr.
vol. 2 (Doc. 113) at 74–77.) This court makes no finding as to
that particular position of the State BoE. However, if wearing
masks is not mandated, the State BoE should consider carefully
the testimony of its own expert witness, Dr. Plush, and consider
mandating social distancing of greater than six feet, i.e.,
three meters (9 feet or more), for polling places.

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12-4 ¶ 8.) He also testified that the State BoE has never opened

an investigation based upon a potentially fraudulent witness

signature, nor that he was ever able to detect a forged witness

signature based solely on the absentee ballot envelope itself.

(Doc. 108 at 17.)

Mr. Tutor also discussed the 2016 and 2018 general election

absentee ballot collection fraud case in North Carolina

involving Leslie McCrea Dowless (the “Dowless Scheme”). 21 (Id. at

9.) Dowless’s intention in perpetrating this scheme was to get

as many Republican votes in before election day as possible.

(Id.) Dowless would hire people to go and pick up absentee

ballots from voters in the district; he knew who had been mailed

absentee ballots by finding out from his contacts in the Bladen

County Board of Elections staff. (Id. at 11.) His people would

talk voters into filling out their ballots in support of the

candidates Dowless supported and at least would collect the

voters’ ballots. (Id. at 11–12.) Some of these ballots were then

thrown away. (Id. at 12.) Dowless’s teams would also sometimes

sign the witness boxes after they had picked up the ballots,

sometimes with fake names. (Id. at 14.) However, Mr. Tutor

21 Mr. Tutor testified that “[t]he 2016 and 2018 cases,

facts, and people merged,” (Doc. 108 at 10), and the court will
therefore treat these cases under the umbrella of the Dowless
Scheme.

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testified, the State BoE only became aware of the Dowless Scheme

because voters who had been approached by Dowless’s teams

reached out to the county BoE; generally, the State BoE usually,

“if not basically all of the time,” becomes aware of potential

absentee ballot fraud from a voter contacting their local county

BoE. (Id. at 10, 16, 40.)

Mr. Tutor explained that this type of scheme would be

nearly impossible now, because the State BoE has made the

information pertaining to who has requested an absentee ballot

confidential until election day. (Id. at 12.)

Turning to Defendant Bell, she originally suggested

reducing the two-witness requirement down to one witness or

eliminating the witness requirement altogether in her March 26,

2020 letter to the General Assembly. (Doc. 12-7 at 4.) At that

point, however, Defendant Bell had asserted, as part of that

letter, that the State could procure signature-matching

technology, which would serve the purpose of ensuring the person

submitting the ballot was actually the person whose name was on

the ballot. At this time, however, Defendant Bell testified

that, due to demand from other states, North Carolina would not

be able to procure such technology in time for the election,

thus leaving the State BoE without a way to verify absentee

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ballots if the One-Witness Requirement is eliminated.

(Evidentiary Hr’g Tr. vol. 2 (Doc. 113) at 44.)

Legislative Defendants also submit a declaration from Ken

Block, a data analyst, in which he found 1,265 instances of

duplicative voting from the 2016 General Election; that is, a

person voting in both North Carolina and another state. (Doc.

51-2 ¶ 11.) Legislative Defendants contend this is further

evidence of voter fraud requiring deterrence and prevention.

(Leg. Defs.’ Resp. (Doc. 51) at 37.)

The court first notes that preventing voter fraud and

preserving election integrity are important state interests. See

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997)

(“States certainly have an interest in protecting the integrity,

fairness, and efficiency of their ballots and election processes

as means for electing public officials.”).

The court finds the One-Witness Requirement plays a key

role in preventing voter fraud and maintaining the integrity of

elections, much like an in-person voter is required to state

their name and address upon presenting themselves at an in-

person polling place; the act of identification, as witnessed by

the poll worker, acts as the same deterrent from committing

fraud. The court thus does not assign much weight to Mr. Tutor’s

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testimony that anyone intent on committing absentee ballot fraud

will do so regardless of the law.

Prevention of voter fraud requires consideration of that

interest in a broader sense than simply measuring deterrence. As

the facts of the Dowless Scheme demonstrate, not only was the

fraud investigated but the election results were also set aside

and a new election was held for North Carolina’s 9th

Congressional District. (See Doc. 102-10 at 2.) Even Mr. Tutor,

who did not believe any witness-signature law would prevent

absentee ballot fraud, did acknowledge the witness requirement

was at least of “marginal” assistance in the subsequent

investigation. (See Doc. 108 at 22–23.) This court is not

persuaded by, and thus assigns no weight to, Mr. Tutor’s

characterization of the assistance as “marginal.”

The court would reach the same conclusion here even if the

analysis were limited to the State’s interest in voter

identification and deterring voter fraud. Indeed, this court

finds that the State’s interest in deterring voter fraud extends

not only to deterring fraud at the outset but also in

establishing certain minimal standards to allow for detection,

investigation, and ultimately rejection of fraudulent ballots,

and, if warranted, the holding of a new election to cure

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election results tainted by fraud, all of which occurred in

response to the Dowless Scheme. (See Doc. 102-10 at 2.)

The court finally finds Defendants’ stated interest in

preventing voter fraud is stronger than the government’s in

Andino for one substantial reason: North Carolina experienced a

serious case of voter fraud involving absentee ballots in the

2016 General Election with the Dowless Scheme. (See Doc. 102-10

at 2.) Defendants’ interest in preventing voter fraud is

therefore not illusory or speculative. (See Leg. Defs.’ Resp.

(Doc. 51) at 37.) This history of voter fraud weighs far heavier

in the Anderson-Burdick balancing test. The Supreme Court has

observed that the courts do not “require elaborate, empirical

verification of the weightiness of the State's asserted

justifications.” Timmons, 520 U.S. at 364. Indeed, the Supreme

Court has upheld what is likely a more burdensome regulation,

requiring photo identification issued by the government in order

to vote in person, even in the face of a record devoid of any

evidence of voter fraud occurring in Indiana in its history.

Crawford, 553 U.S. at 194–96.

The State’s interest in preventing, identifying, and

investigating voter fraud weighs heavily against the burden on

voters.

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 (C) One-Witness Requirement Conclusion

The court thus must weigh the burden on Plaintiff Bentley

in procuring a witness for her absentee ballot against the

State’s interest in preventing and detecting voter fraud.

The court finds that even high-risk voters can comply with

the One-Witness Requirement in a relatively low-risk way, as

long as they plan ahead and abide by all relevant precautionary

measures, like social distancing, using hand sanitizer, and

wearing a mask; in other words, the burden on voters is modest

at most.

Turning to the State’s interest, the court first notes

that, while the evidence does not demonstrate that the witness

requirement is integral to initially detecting voter fraud, the

deterrent effect of the One-Witness Requirement, in addition to

North Carolina’s recent history of voter fraud involving

absentee ballots, are sufficiently weighty to justify the modest

burden on voters.

Plaintiffs have not demonstrated a likelihood of success on

the merits of their constitutional challenge to the One-Witness

Requirement under the Anderson-Burdick balancing test.

ii. The Identification Requirement

Plaintiffs seek an injunction of N.C. Gen. Stat.

§ 163-230.2(a)(4), the Identification Requirement, which

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requires a voter requesting an absentee ballot provide one of

the following: (1) the voter’s driver’s license number, (2) the

voter’s special identification card number, or (3) the last four

digits of the voter’s social security number, and request the

court order election officials to “accept any proof of residency

document acceptable under the Help America Vote Act (HAVA) as

acceptable forms of identification with absentee ballot

requests.” (Pls.’ Am. Mot. (Doc. 31) at 4-5, 7.)

This court will assume, without deciding, that the

Anderson-Burdick balancing test, not strict scrutiny, applies.

See Andino, 2020 WL 2617329, at *18–19; see also Democratic

Nat’l Comm. v. Bostelmann, No. 20-cv-24-wmc, ____ F. Supp. 3d.

____, 2020 WL 1320819, at *6–7 (W.D. Wis. Mar. 20, 2020)

(“Bostelmann I”), (applying the Anderson-Burdick balancing test

in evaluating a challenge to an identification requirement for

requesting an absentee ballot). The court thus must determine

the extent of the burden imposed by the proof of residency

restrictions, the State’s interest in justifying these

restrictions, and whether the State’s interest justifies the

burden. See Burdick, 504 U.S. at 434.

Executive Defendants contend that Plaintiffs fail to

demonstrate why requiring absentee voters submit one of the

forms of accepted identification would be burdensome or why the

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COVID-19 pandemic would “heighten” any such burden. (Exec.

Defs.’ Resp. (Doc. 58) at 21.) They further acknowledge that

Plaintiffs’ request is “sound policy” but point to Bostelmann I

as evidence that courts “have denied motions for preliminary

injunctions where plaintiffs have argued that requiring proof of

residency and proof of voter identification for absentee ballot

applications in light of the COVID-19 pandemic are

unconstitutional burdens on the right to vote.” (Id. at 21–22.)

The court agrees with Executive Defendants. The district

court in Bostelmann I declined to enjoin a similar

identification requirement for absentee ballot requests. See

Bostelmann I, 2020 WL 1320819, at *6–7; cf. Luft v. Evers, 963

F.3d 665, 676 (7th Cir. 2020) (affirming the district court’s

finding that Wisconsin’s law requiring documentary proof of

residence to register to vote was constitutional because

“[p]roof of residence helps assign voters to their proper

districts and is valid for that reason alone”); Frank v. Walker,

768 F.3d 744, 751 (7th Cir. 2014) (upholding Wisconsin’s voter

ID law under Crawford); Democratic Nat’l Comm. v. Bostelmann,

Nos. 20-cv-249-wmc, 20-cv-278-wmc, 20-cv-284-wmc, ____ F. Supp.

3d ____, 2020 WL 1638374, at *20–21 (W.D. Wis. Apr. 2, 2020)

(“Bostelmann II”) (same).

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 The court finds that “the State’s interest with respect to

[an identification] requirement has been recognized by the

United States Supreme Court . . . .” Bostelmann I, 2020 WL

1320819, at *7.

Plaintiffs’ attempt to distinguish Bostelmann by arguing

“the plaintiffs in that case requested striking down the

requirement entirely, not allowing alternative methods of

proof.” (Pls.’ Reply (Doc. 74) at 23.) The court finds this

argument unpersuasive. The burden on Plaintiffs is modest; none

of the Individual Plaintiffs have indicated they will not be

able to comply with this regulation nor have Organizational

Plaintiffs indicated they will be harmed by this regulation.

Given this modest burden, and given a similar restriction was

recently upheld in Bostelmann, the court finds Plaintiffs are

unlikely to prevail on the merits on their Identification

Requirement claim.

iii. Restrictions on Who May Assist in

Completing and Submitting Absentee
Ballot Requests

Plaintiffs next seek an injunction against N.C. Gen. Stat.

§ 163-230.2, as amended by H.B. 1169, which 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. (Pls.’ Am. Mot. (Doc. 31) at 4–5.)

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 The court first notes Plaintiffs’ challenge to the Form

Requirement, insofar as they request an online option and the

ability to seek a request form over the phone, is moot; no

Individual Plaintiffs as voters have standing to challenge this

law, because they all possess the ability to request an absentee

ballot request form under the current laws. See Part II.A.3.

Second, regarding the Request Assistance Ban, the court

notes that none of the Individual Plaintiffs as voters have

standing to challenge these laws, because no Individual

Plaintiffs alleged they will be burdened by these laws. 22 With

respect to Organizational Plaintiffs, the claimed injuries to

these Plaintiffs are not burdens on the right to vote, but

22 Defendants did not challenge standing with respect to the

Request Assistance Ban as to any of the Individual Plaintiffs.
(See Leg. Defs.’ Br. (Doc. 51) at 14–23.) To the extent
Organizational Plaintiffs challenge the Request Assistance Ban
on behalf of third-party voters, the court found Organizational
Plaintiffs do not have prudential standing to do so. Supra Part
II.A.8.

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instead are burdens on their ability to associate with voters. 23

Indeed, Plaintiffs, as part of their Right-to-Vote section of

their brief, argue that the Request Assistance Ban “impedes

LWVNC’s educational mission and message of participation in

voting, its ability to build relationships and associate with

voters, and most importantly, its mission of promoting voter

participation and civic engagement.” (Pls.’ Br. (Doc. 10) at 33

(emphasis added).) These are quintessentially freedom of speech

and association injuries. The court will accordingly consider

Plaintiffs’ challenges to the Request Assistance Ban, as part of

the court’s analysis of their First Amendment Freedom of

Association claim, infra Part II.E.3.

23While Plaintiffs argue that the Request Assistance Ban

“prevents voters from receiving needed assistance to navigate
the ballot request process,” (Pls.’ Br. (Doc. 10) 32-33), the
court finds this argument would serve as an end run around
prudential standing. To argue that harm will come to voters
because of the harm to Organizational Plaintiffs is to argue
that the Request Assistance Ban unconstitutionally burdens
voters, who are third-parties; this is the essence of third-
party standing. The court found Organizational Plaintiffs do not
have prudential standing, see Part II.A.8, therefore this
argument cannot serve as the basis for analyzing Organizational
Plaintiffs’ challenge to the Request Assistance Ban under a
fundamental right to vote framework. Further, while
Organizational Plaintiffs allege these laws frustrate their
mission of helping citizens vote, Organizational Plaintiffs have
not pled a diversion of resources such that they could establish
organizational standing either. (See Second Am. Compl. (Doc. 30)
¶ 96.) Instead, Organizational Plaintiffs’ challenge must be
construed as a First Amendment associational claim.

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 b. Voter Registration Deadlines

Plaintiffs challenge the 25-day Deadline on registering to

vote by mail, through state agencies, or online through the

Department of Motor Vehicles (“DMV”) website under N.C. Gen.

Stat. §§ 163-82.6(d) and 163-82.20(g), (h). (Pls.’ Am. Mot.

(Doc. 31) at 4.) Only Organizational Plaintiffs have standing to

challenge this law. See Part II.A.1.

The parties disagree over whether the 25-day Deadline

“severely burden[s]” the right to vote, and thus, the level of

scrutiny the court must apply. (Compare Pls.’ Br. (Doc. 10) at

27, with Leg. Defs.’ Resp. (Doc. 51) at 28.) As the court has

already noted, it “need not reach that decision,” and will

assume, without deciding, that the Anderson-Burdick balancing

test, not strict scrutiny, applies. 24 See Andino, 2020 WL

2617329, at *18–19; see also Bostelmann I, 2020 WL 1320819, at

*4–5 (applying the Anderson-Burdick test to a voter registration

deadline).

Outside the COVID-19 pandemic, courts routinely uphold

voter registration deadlines as constitutional burdens on the

24As described previously, it does not appear that this

deadline disenfranchises or threatens to disenfranchise any
voter, nor does it appear to unfairly affect any
constitutionally-protected group. On the evidence presented, and
for purposes of this motion only, the court would not find this
to be a severe burden.

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right to vote. See Burns v. Fortson, 410 U.S. 686, 686–87 (1973)

(per curiam) (upholding Georgia’s 50-day registration deadline,

though it “approache[d] the outer constitutional limits in this

area”); Rosario v. Rockefeller, 410 U.S. 752, 761–62 (1973)

(upholding a law requiring voters to register with a political

party at least thirty days prior to the previous general

election in order to participate in the state’s subsequent

closed primary election); Diaz v. Cobb, 541 F. Supp. 2d 1319,

1340 (S.D. Fla. 2008) (upholding a 29-day voter registration

deadline); see also Pisano v. Strach, 743 F.3d 927, 937 (4th

Cir. 2014) (upholding May 17 petition-filing deadline for the

formation of new political parties for the November general

election).

Plaintiffs contend the 25-day Deadline will serve as a

barrier to voters seeking to register closer to the election due

to limitations on in-person registration efforts and voters’

fear of registering at in-person early voting due to COVID-19.

(Pls.’ Br. (Doc. 10) at 28.) In particular, Plaintiffs argue

COVID-19 limits voter registration opportunities, given many

voter registration organizations, including Organizational

Plaintiffs, have reduced or cancelled their in-person voter

registration initiatives, and many DMV and state agencies have

closed or limited in-person access. (Id. at 27.) Thus, they

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argue, many voters will attempt to register to vote closer to

the election, and the 25-day Deadline unduly burdens voters who

would not feel comfortable taking advantage of same-day

registration at in-person early voting sites, and burdens

Organizational Plaintiffs in getting as many voters registered

as possible. (Id. at 28.)

Executive Defendants contend the 25-day Deadline is only a

“modest” burden, outweighed by the State’s interest in

maintaining the deadlines; that is, the interest in ensuring

voters receive their verification mailings before Election Day,

reducing voter confusion, and allowing the State and county

boards of election to process registration forms. (Exec. Defs.’

Resp. (Doc. 58) at 14–15.)

Legislative Defendants likewise view this restriction as

justified, pointing to the State’s interest in “ensuring

orderly, fair, and efficient procedures for the election of

public officials.” (Leg. Defs.’ Resp. (Doc. 51) at 28–29

(quoting Pisano, 743 F.3d at 936).)

Plaintiffs point to “dramatic” drops in voter registration

rates compared to 2016. They submit evidence of a 162% increase

in registration in January 2020 compared to registrations in

January 2016, but “February, March, and April 2020 had changes

of -10%, -14%, and -50% compared to the same months of 2016

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respectively.” (Doc. 12-5 ¶ 4.) Plaintiffs also offer data

suggesting nearly 350,000 potential voters may be ineligible to

use the DMV online voter registration portal and therefore would

likely have to register to vote either in person or through the

mail. (Doc. 73-7 ¶ 8.)

Legislative Defendants submit the declaration of Angela

Hawkins, a member of the Wake County Board of Elections, to

rebut the significance of these figures. (Doc. 51-5.) She

contends it is not surprising registrations went down in April,

considering more people registered in January, presumably to

vote in the 2020 primary elections, and considering the stay-at-

home orders that were in place. (Id. ¶ 4.) She maintains that,

despite these numbers, voters have plenty of time to register to

vote prior to the November 2020 election. (Id.)

Legislative Defendants also submit the declaration of Linda

Devore, the Secretary of the Cumberland County Board of

Elections. (Declaration of Linda Devore in Opp’n to Pls.’ Mot.

for Preliminary Injunction (“Devore Decl.”) (Doc. 51-4) ¶ 1.)

She contends that extending the 25-day Deadline through the

close of One-Stop early voting would pose considerable problems

in facilitating the election. (Id. ¶ 6.) She asserts that such a

change would “require updating nearly 300 storage drives for

laptops used on Election Day” in Cumberland County alone and

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would “require local and State Boards of Elections to process,

update, and download updated voter registration files for each

of more than 2500 precincts in the State within 72 hours of

Election Day.” (Id.)

At least one district court has enjoined an online voter

registration deadline, but not a mail-in deadline, due to the

COVID-19 pandemic. See Bostelmann I, 2020 WL 1320819, at *6.

That court, working on a timeline of approximately two weeks, 25

found that extending the online registration deadline would

“vindicate the rights of as many voters as practical.” Id. The

court further acknowledged the concerns from the defendants that

there would be voter confusion and that there would be issues in

amending the printing of municipal poll books, but found that

the municipalities would be able to publish additional

registrations in supplemental books, and further, that any voter

confusion would not result in prejudice to voters; if anything,

“at least some will be afforded a mechanism to vote safely,”

even if some mistakenly believe their opportunity to register

had passed. Id. at *5–6. The court declined to extend the

mail-in registration date, finding it could act to

25The court was determining whether to enjoin the

enforcement of a March 18, 2020 registration deadline for an
April 7, 2020 election, and the court issued its opinion on
March 20, 2020. Id.

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disenfranchise voters if their registration was not received in

time, giving them “a false sense of confidence that they will be

able to vote by absentee ballot.” Id. at *6.

Though the Wisconsin district court was also dealing with a

voter registration deadline impacted by the COVID-19 pandemic,

the court finds the two situations distinguishable. There, the

voter registration deadline was March 18, three weeks before

Wisconsin’s April 7, 2020 election. Id. at *2. The COVID-19

pandemic was just beginning to impact Wisconsin, with the

Wisconsin governor ordering a statewide ban on group gatherings

and the closing of places such as libraries, schools, and malls

on March 17. Id. The Wisconsin district court found that, given

the government’s urging of people to avoid public spaces, many

voters would abide by these precautions and forgo registering to

vote in public when they had initially planned to do so. Id. at

*4. The voters in Wisconsin had been caught off guard by the

COVID-19 pandemic. This is not the case here.

While the COVID-19 pandemic is ongoing, and the situation

ever-changing, the court nevertheless cannot say that the voters

of North Carolina are similarly disadvantaged by being caught

off guard by a sudden pandemic; North Carolina voters still have

over two months to register to vote before the 25-day Deadline,

as opposed to the Wisconsin voters who saw the registration

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deadline pass nearly simultaneously with their state’s new

COVID-19 restrictions.

In balancing the burden on Plaintiffs and the State’s

interests, the court finds the State’s interests justify any

burden on Plaintiffs imposed by the 25-day Deadline.

While the court is concerned by Plaintiffs’ data tending to

show that approximately 350,000 North Carolina citizens do not

have a DMV account and therefore cannot register to vote online,

(see Doc. 73-7 ¶ 8), there is nothing to prevent these voters

from timely registering by mail at some point over the next two

months. In comparison, the State has an interest in verifying

all voter registrations and ensuring that all county boards of

elections poll books are up to date so as not to erroneously

prevent a registered voter from voting due to a clerical error. 26

(See Exec. Defs.’ Resp. (Doc. 58) at 15; Devore Decl. (Doc.

51-4) ¶ 6.)

The court therefore finds that the burden to Plaintiffs is

modest at best and is justified by the State’s interest in

“ensuring orderly, fair, and efficient procedures for the

26Even if the court were to consider the stricken testimony

from Bartlett’s reply declaration concerning the 25-day
Deadline, (Doc. 73-6), the court would find the weight of
Defendant Bell’s testimony and the declaration of Ms. Devore,
(Doc. 51-4), compel the same conclusion.

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election of public officials.” Pisano, 743 F.3d at 937. The

court finds Plaintiffs have failed to show a likelihood of

success on the merits regarding their challenge to the 25-day

Deadline.

c. The County Residency Requirement

Plaintiffs seek to enjoin the newly-amended residency

requirements for poll workers. (Pls.’ Am. Mot. (Doc. 31) at 6.)

As to this issue, the court found supra Part II.A.6, that

Plaintiffs do not have standing to challenge this law. The court

noted that only three Plaintiffs - Plaintiff Permar and

Organizational Plaintiffs - could have had standing, but the

court found Plaintiff Permar’s injuries purely hypothetical at

this point, and thus, she does not have standing. The court

further found that Organizational Plaintiffs’ alleged injuries

arise from budgetary choices and thus do not constitute

recognizable organizational injuries.

The court also noted that Plaintiffs must demonstrate for

purposes of standing that “it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Sierra Club, 899 F.3d at 284. Plaintiffs’ proposed

remedy, enjoining the County Residency Requirement, may have

some logical force from the possibility of perhaps recruiting

larger numbers of poll workers from more populous counties to

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serve across the state. Whether that would in fact remediate the

issue, however, is speculative at best. 27

27Plaintiffs, in making these arguments as to a remedy,

have relied upon the declaration Jake Quinn and parts of the
Gronke Reply Declaration. (See Pls.’ Reply (Doc. 74) at 29.)
However, that evidence has been struck. (See Doc. 116 at 47.)
Even if the court were to consider that evidence, any remedy is
still speculative at best. Quinn’s declaration only recognizes
that there were difficulties finding people willing to work at
the polls and that there may be difficulties in the future, (see
Doc. 73-9 ¶¶ 18–21), but fails to offer a solution. (See id.)
Even if the court were to consider the portions of Dr. Gronke’s
declaration which were struck, those assertions do not offer any
assurance that enjoining the County Residency Requirement would
address any potential problems. Dr. Gronke opines that, unless
North Carolina removes “the requirement that poll workers are
registered in the county where they are working, North Carolina
will experience poll worker shortages.” (Doc. 73-5 ¶ 12.) But
neither Plaintiffs nor Dr. Gronke offer compelling evidence to
support that claim; although Defendant Bell testified that the
State BoE has only hired 1,100 of roughly 25,000 workers needed,
(Evidentiary Hr’g Tr. vol. 2 (Doc. 113) at 111), no evidence was
presented as to whether the county board of elections has
experienced any difficulties in hiring poll workers for the
November General Election. Dr. Gronke also opines that relaxing
the County Residency Requirement can allow “sister counties to
recruit poll workers among college students . . . . [Y]ounger
citizens are not at an increased risk of contracting the corona
virus.” (Doc. 73-5 ¶ 13.) As an initial matter, this court is
not aware of any evidence that college students are at a
different risk of contracting COVID-19, only that their age
could make them less likely to suffer serious illness should
they contract the virus. Nevertheless, Dr. Gronke’s opinion
fails to offer any evidence that college students, whether
studying remotely or on campus, will be interested in working as
poll workers with the attendant responsibilities, nor why
college students in this particular year would be more likely to
sign up than other individuals, nor why those college students
are likely going to be willing to work in counties other than
their home counties. Dr. Gronke’s opinion is thoughtful but
(Footnote continued)

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 The court will nevertheless address this issue on the

merits, as an alternative basis for its conclusions.

The parties disagree over whether this law “severely

burdens” the right to vote, and thus, the level of scrutiny the

court must apply. (Compare Pls.’ Br. (Doc. 10) at 50, with Leg.

Defs.’ Resp. (Doc. 51) at 47; Exec. Defs.’ Resp. (Doc. 58) at

12, 31–32).) Plaintiffs do not argue that the previous

requirement, requiring all poll workers live in the precinct in

which they work, was burdensome to the voters on its own. Nor do

Plaintiffs contend that the modification to that law by HB 1169,

the County Residency Requirement, is unduly burdensome on its

face.

In asserting the County Residency Requirement

unconstitutionally burdens voters, Plaintiffs first argue that

the presence of COVID-19 and the related complications created

falls short of demonstrating a likelihood the issue would be

redressed by a favorable decision of this court. Dr. Gronke’s
original opinion, that the precinct residency requirement should
be changed, (Doc. 12-2 ¶ 23), was in fact implemented by HB 1169
to expand to a county residency requirement. These changes
demonstrate the difficulty of accurately predicting the future
under the best of circumstances. Even were the court to consider
the excluded Quinn declaration and the excluded portions of the
Gronke reply declaration, the court would still find Plaintiffs
failed to establish that the requested relief would in fact
remediate the issue, because the requested relief is merely
speculative as to whether it would be redressed by a favorable
decision.

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by COVID-19 will limit the pool of individuals willing to work

as poll workers in this environment. (Pls.’ Reply (Doc. 74) at

27.) Second, Plaintiffs contend a collateral consequence of

COVID-19 limiting the number of willing individuals combined

with the County Residency Requirement is that there will be a

shortage of poll workers and, as a result, the County Residency

Requirement will “lead to precinct consolidation and less one-

stop voting sites, burdening in-person voters such as Plaintiff

Permar.” (Id. at 27-28.)

This court finds that Plaintiffs have not made a clear

showing that the County Residency Requirement will result in a

severe burden on the right to vote. The Supreme Court has not

identified “any litmus test for measuring the severity of a

burden that a state law imposes on . . . an individual voter, or

a discrete class of voters.” Crawford, 553 U.S. at 191. For

example, in Florida Democratic Party v. Scott, 215 F. Supp. 3d

1250 (N.D. Fla. 2016), the district court considered an

injunction against the voter registration deadline after

Hurricane Matthew forced many people to evacuate or lockdown,

thus missing the deadline. Id. at 1254. The district court found

the refusal to extend the deadline a severe burden on the right

to vote, stating, “because Florida’s statutory framework would

categorically deny the right to vote to [thousands of]

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individuals, it is a severe burden that is subject to strict

scrutiny.” Id. at 1257 (citing Burdick, 504 U.S. at 434).

Similarly, in Lecky v. Virginia State Board of Elections, a

district court in Virginia recognized that “the last minute

consolidation of precincts resulting in hours long wait times

and mass disenfranchisement . . . amount[s] to the kind of

‘broad-gauged unfairness’ that renders an election patently and

fundamentally unfair.” 285 F. Supp. 3d 908, 915-16 (E.D. Va.

2018). The evidence submitted in support of Plaintiffs’ concerns

about precinct consolidation due to poll worker shortages,

however, is insufficient to demonstrate the closing of polling

places will occur in such large numbers so as to disenfranchise

voters and create a severe burden. The court will thus assume

that the Anderson-Burdick balancing test applies, instead of

strict scrutiny. See Andino, 2020 WL 2617329, at *18–19.

Executive Defendants argue that the State has “taken

additional steps to ensure that polling places will remain open

and unaffected by the COVID-19 pandemic.” (Exec. Defs.’ Resp.

(Doc. 58) at 32.) Defendant Bell announced her “commitment to

maintaining election-day precincts as they are and avoiding

precinct mergers whenever possible for general elections.” (Bell

Decl. (Doc. 58-1) ¶ 12.) Thus, Executive Defendants argue, “if a

polling place needs to be shut down because of a COVID-19

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outbreak, the impact of this closure will be reduced by the

widespread availability of other open polling locations.” (Exec.

Defs.’ Resp. (Doc. 58) at 32; see also Bell Decl. (Doc. 58-1)

¶ 12.) Executive Defendants also argue Plaintiffs’ challenge is

moot. (Exec. Defs.’ Resp. (Doc. 58) at 32.)

Legislative Defendants argue first that Plaintiffs asked

for a county residency rule in an exhibit from before the

passage of H.B. 1169, and second, that Plaintiffs have offered

only conclusory allegations that this rule will result in

precinct consolidation, thus, “Plaintiffs cannot show that the

law burdens their rights to vote at all.” (Leg. Defs.’ Br. (Doc.

51) at 46–47.)

The court finds Executive Defendants’ mootness argument

without merit; it is entirely possible, and indeed, in light of

the consolidations that occurred for the Republican primary in

June 2020; it is possible that consolidations will occur again

during early one-stop voting and on election day due to a lack

of poll workers. The issue is not so speculative as to be moot.

As the court already noted, supra Part II.A.6, Plaintiffs

have not shown a likelihood of success regarding the

redressability of this challenge. Even assuming redressability

from an injunction, however, the court cannot find from the

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evidence presented that the burden on voters is an unjustifiable

one.

At the evidentiary hearing, Defendant Bell testified that

she believed “we have the means to staff our one-stop early

voting sites,” but that she is “concerned about election day in

particular.” (See Evidentiary Hr’g Tr., vol. 2 (Doc. 113) at

109.) However, she also testified that she is not confident the

State and county boards of elections will be able to procure the

requisite number of poll workers to keep all polling places open

as planned. (See id. at 109–10.) She further testified that she

was aware that precinct consolidation in the June 9, 2020

Georgia Primary was due, in part, to a “mass exodus of poll

workers fearing coronavirus exposure,” despite Georgia also

having a county residency requirement for poll workers. (Id. at

107–08.)

Plaintiffs offer several pieces of evidence concerning the

June 23, 2020 primary election in support of their motion to

enjoin this provision. They submit a letter from the Yancey

County Board of Elections to Defendant Bell requesting a

transfer of voters due, in part, to “the pandemic of COVID 19

and a large number of our poll workers being the high risk age,

we do not have enough people to cover all of our normal 11

precincts.” (Doc. 12-9 at 2.) Plaintiffs also submit several

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other letters from other county boards of elections requesting

the temporary transfer of voters or precinct consolidation due

at least in part to a shortage of poll workers. (Id. at 6–7, 10,

16–19.) In Macon County, the Macon County Board of Elections had

to combine fifteen precincts into three. (Id. at 15.)

The court finds Plaintiffs have identified a burden

resulting from the County Residency Requirement which

Legislative Defendants only attempt to justify by stating “the

State’s interest in election administration and integrity

supports the requirement that poll workers reside in-county.”

(Leg. Defs.’ Resp. (Doc. 51) at 46.)

At this time, however, the court cannot help but find that

the existence of a burden, and the weight of that burden, is too

speculative to support injunctive relief. The court finds that

it is entirely possible that there will be polling place

consolidations due in part to poll worker shortages, but the

court cannot say Plaintiffs’ evidence demonstrates a likelihood

of success on the merits. Defendant Bell testified that the

State BoE statewide initiative to hire poll workers is ongoing,

but at this time, has resulted in the hiring of approximately

1,100 poll workers out of the roughly 20,000 to 25,000 poll

workers necessary. (Evidentiary Hr’g Tr., vol. 2 (Doc. 113) at

111.) While this testimony is cause for concern, no evidence was

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presented as to the success, or lack thereof, by county boards

of elections in hiring poll workers. Based on the evidence

presented, this court simply cannot find that a shortage of poll

workers will arise or, if it should, that it will rise to a

level which in turn places an unjustified burden on voters

through any substantial number of polling site closures.

The court is of course encouraged that Defendant Bell has

announced her commitment to maintaining election-day precincts

as they are and to avoiding precinct mergers. A commitment is

not the same as a guarantee, however, nor is it a solution.

Keeping in mind that “[s]tates have broad powers to determine

the conditions under which the right of suffrage may be

exercised,” Shelby County v. Holder, 570 U.S. 529, 543 (2013)

(internal quotation marks omitted), and “[u]nder the

Constitution, state and local governments, not the federal

courts, have the primary responsibility for addressing COVID–19

matters such as . . . adjustment of voting and election

procedures . . . and the like,” Calvary Chapel, 2020 WL 4251360

at *11. Legislative and Executive Defendants would do well to

work with Defendant Bell to address any uncertainty in

recruiting poll workers, if it exists, immediately.

The court finds Plaintiffs have not shown a likelihood of

success on the merits as to this claim.

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 d. Uniform Hours Requirement

Plaintiffs challenge the Uniform Hours Requirement, N.C.

Gen. Stat. § 163-227.6(c), on the basis that it, along with the

County Residency Requirement, will cause further consolidation

and elimination of precincts for the November General Election,

resulting in confusion, increased travel times, long lines, and

crowds that will put voters at greater risk of contracting

COVID-19, thus creating an undue burden on the right to vote in

violation of the First and Fourteenth Amendments. (Pls.’ Br.

(Doc. 10) at 50–51; Second Am. Compl. (Doc. 30) ¶¶ 110–12.)

Further, Organizational Plaintiffs will have to divert resources

towards recruiting poll workers, alerting members about precinct

closures, and advocating for more early voting days. (Pls.’ Br.

(Doc. 10) at 51.)

The parties disagree over whether this law “severely

burdens” the right to vote. (Compare Pls.’ Br. (Doc. 10) at 50,

with Leg. Defs.’ Resp. (Doc. 51) at 47–50; Exec. Defs.’ Resp.

(Doc. 58) at 12, 30–31).) As the court has already noted, it

“need not reach that decision,” and will assume, without

deciding, that the Anderson-Burdick balancing test applies, as

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opposed to strict scrutiny. 28 See Andino, 2020 WL 2617329, at

*18-19.

Plaintiffs point to the closure of 64 different precincts

from the most recent Republican primary in June in North

Carolina as evidence that this threat is real. (Pls.’ Br. (Doc.

10) at 49.)

Executive Defendants argue any consolidation will be

communicated to affected voters “at least 30 days before the

election,” in accordance with N.C. Gen. Stat. § 163-128(a).

(Exec. Defs.’ Resp. (Doc. 58) at 37–38.) Executive Defendants

further “acknowledge that the uniform hours requirement may

reduce the flexibility of county boards of elections to respond

to exigences that may occur in light of the COVID-19 pandemic.”

(Id. at 30.) They contend Plaintiffs fail to demonstrate why the

COVID-19 pandemic would change the burden of this requirement,

because Plaintiffs “have not provided information sufficient to

understand the nature of the burdens to voters resulting from

the confluence of the COVID-19 pandemic and uniform one-stop

hours.” (Id. at 31.)

28It does not appear that this requirement directly

disenfranchises or threatens to disenfranchise any voter, nor
does it appear to unfairly affect any constitutionally-protected
group. On the evidence presented, and for the purposes of this
motion only, the court does not find this to be a severe burden.

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 Legislative Defendants also argue that Plaintiffs’ failure

to demonstrate any consolidation due to the Uniform Hours

Requirement will result in confusion or long lines or that the

Uniform Hours Requirement has led to “increased travel time” for

any registered voter. (Leg. Defs.’ Resp. (Doc. 51) at 48.)

Indeed, Legislative Defendants argue the “Uniform Hours

Requirement is designed to expand access to one-stop early

voting,” but that even if it does not achieve that goal and

instead ends up burdening the right to vote, the State’s

interests in “avoiding voter confusion by promoting uniformity

and promoting administrative convenience by making it easier for

counties to publicize early voting hours” justifies any such

burden. (Id. at 49-50.) Further, Legislative Defendants offer

the declaration of Linda Devore, the Secretary of the Cumberland

County Board of Elections, who asserted that the Uniform Hours

Requirement “ensure[s] that all voters in a county have the same

opportunity to vote,” because it “eliminates (or at least

substantially reduces) partisan decision-making on where and

when to allow early voting.” (Devore Decl. (Doc. 51-4) ¶ 8.)

Plaintiffs point to Defendant Bell’s March 2020 letter to

the Executive Branch and the General Assembly, in which she

requests the government consider changing the Uniform Hours

Requirement, because “[c]ounty boards of elections need

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flexibility to determine hours because they are affected

differently by, and respond differently to, the COVID-19

pandemic.” (Doc. 12-7 at 6.) She repeated this request in her

April 2020 letter. (Id. at 13.)

In conducting the Anderson-Burdick balancing test, the

court first notes that Defendants articulate strong interests on

behalf of the State in maintaining the Uniform Hours Requirement

— expanding access to one-stop voting, avoiding voter confusion,

promoting administrative convenience, preventing discriminatory

poll hours — all of which are reasonable.

Concerning the burden on Plaintiffs, the court finds the

evidence does not demonstrate that the Uniform Hours Requirement

will lead to the closing of polling places. While the court

acknowledges Mr. Lopez’s experience with election law, the court

did not find that he was qualified as an expert to opine on the

costs of the Uniform Hours Requirement, given he failed to

“provide any basis upon which to conclude his opinion is based

on personal knowledge or that he is otherwise competent to offer

this opinion.” (Doc. 116 at 33.) Thus, the court assigns little

weight to his opinions regarding the Uniform Hours Requirement.

The court finds the increased number of days during which

early one-stop voting is available in addition to uniform hours

do not create a burden on voting. Because the Uniform Hours

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Requirement does not create a burden on voting, the State’s

interest justifies the Uniform Hours Requirement.

The court finds Plaintiffs have not demonstrated a

likelihood of success in their challenge of the Uniform Hours

Requirement.

e. Lack of Curing Mechanism

Because the court finds Plaintiffs have shown a likelihood

of success on their procedural due process claim, see Part

II.A.5, the court will not address their challenge to a lack of

curing mechanism under the Anderson-Burdick framework.

f. Affirmative Requests

In addition to Plaintiffs’ requests for the court to enjoin

Defendants from administering and enforcing several specific

North Carolina voting and election laws, Plaintiffs further

request the court to order Defendants engage in a myriad of

actions not directly related to the requested injunctive relief

based on specific North Carolina laws, under the argument that

not doing these actions will create an unconstitutional burden

on the right to vote under the First and Fourteenth Amendments:

a. Expanding voter registration via online portals

available through DHHS services;

b. Establishing contactless drop boxes for absentee

ballots;

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 c. Establishing a mechanism for requesting absentee
ballots by phone;

d. Permitting election officials to accept any proof

of residency document acceptable under the Help
America Vote Act (HAVA) as acceptable forms of
identification with absentee ballot requests;

e. Establishing mechanisms to cure deficient absentee

ballot requests and absentee ballots;

f. Permitting mail-in absentee voters to cast a

downloadable Federal Write-in Absentee
Ballot(“FWAB”), if their timely-requested absentee
ballot does not arrive in sufficient time to ensure
the ballot will be counted;

g. Establishing a more accessible, centralized way in

which voters and advocates can monitor precinct
consolidation.

(Pls.’ Am. Mot. (Doc. 31) at 6–7; Second Am. Compl. (Doc. 30)

¶¶ 92–93, 97, 101–03, 113.)

While the court does not comment upon the efficacy or

wisdom of each request, it is not the court’s role to rewrite

North Carolina’s election law.

[T]he federal Constitution provides States — not

federal judges — the ability to choose among many
permissible options when designing elections. And
because that’s where the decision-making authority is,
federal courts don’t lightly tamper with election
regulations. These concerns are magnified here where
the new election procedures proffered by Plaintiffs
threaten to take the state into unchartered waters.

Thompson v. Dewine, 959 F.3d 804, 812 (6th Cir. 2020).

Plaintiffs’ proposed injunctive relief concerning

contactless drop boxes, permitting mail-in absentee voters to

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use a FWAB as a back-up, expanding online portals for voter

registration, and establishing another way for voters to monitor

precinct consolidation are all procedures that “threaten to take

the state into unchartered waters.” To order these actions on

the eve of this election would supplant the legislative process

with the court’s own policymaking; these decisions should be

left to the legislature. Plaintiffs have also failed to show a

likelihood that these measures can be implemented. The court

finds that Plaintiffs fail to demonstrate a likelihood of

success on these issues.

g. First and Fourteenth Amendments and the Right

to Vote Conclusion

The court finds Plaintiffs have failed to establish a

likelihood of success on the merits as to each of their First

and Fourteenth Amendment Right to Vote claims asserted for the

reasons stated. The court has also considered whether the

challenged laws, collectively, present an unconstitutional

burden under the circumstances created by the COVID-19 pandemic

and finds they do not. The court finds, alternatively, that even

if the court did share Plaintiffs’ concern, it is not for this

court to undertake a wholesale revision of North Carolina’s

election laws. Many of these laws have been in place for

extended periods of time. As the Supreme Court in Purcell v.

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Gonzalez, 549 U.S. 1 (2006), warned, “[c]ourt orders affecting

elections, especially conflicting orders, can themselves result

in voter confusion and consequent incentive to remain away from

the polls. As an election draws closer, that risk will

increase.” Id. at 4–5.

2. Unconstitutional Conditions Argument

Plaintiffs put forth the argument that, given the COVID-19

pandemic, forcing voters to vote under the current election law

regime will force voters to choose between their

“constitutionally-protected right to bodily integrity” and

exercising their constitutionally-protected right to vote, in

violation of the unconstitutional conditions doctrine. (Pls. Br.

(Doc. 10) at 56–58.) In particular, Plaintiffs argue the One-

Witness Requirement forces Individual Plaintiff Bentley to risk

her right to bodily integrity in order to vote absentee. (Id. at

62.) And voting in person is also “not a viable alternative” for

an at-risk voter like Bentley. (Id.)

Under the unconstitutional conditions doctrine, “the

government may not deny a benefit to a person because he

exercises a constitutional right.” Koontz v. St. Johns River

Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (quoting Regan v.

Taxation with Representation of Wash., 461 U.S. 540, 545

(1983)). The Supreme Court has summarized the principle behind

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the doctrine as one which “vindicates the Constitution’s

enumerated rights by preventing the government from coercing

people into giving them up.” Koontz, 570 U.S. at 604. In other

words, “the government may not require a person to give up a

constitutional right . . . in exchange for a discretionary

benefit conferred by the government.” Dolan v. City of Tigard,

512 U.S. 374, 385 (1994). The Supreme Court has found that the

following constitute “unconstitutional conditions”:

[The Supreme Court] held that a public college would

violate a professor’s freedom of speech if it declined
to renew his contract because he was an outspoken
critic of the college’s administration. [Perry v.
Sindermann, 408 U.S. 593 (1972).] And in Memorial
Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct.
1076, 39 L.Ed.2d 306 (1974), [the Supreme Court]
concluded that a county impermissibly burdened the
right to travel by extending healthcare benefits only
to those indigent sick who had been residents of the
county for at least one year.

Koontz, 570 U.S. at 604.

Plaintiffs claim that the State may not require voters to

give up their constitutional right to bodily integrity in

exchange for being able to vote.

Legislative Defendants argue Plaintiffs’ argument is

unavailing “because the State has not conditioned the provision

of any government benefit on Plaintiffs agreeing to forgo

exercise of their constitutional rights.” (Leg. Defs.’ Resp.

(Doc. 51) at 50.) The court will assume, without deciding, that

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the State conditions the provision of a government benefit,

here, voting, on voters procuring a witness for their absentee

ballot.

In determining whether the State has impermissibly

conditioned Plaintiffs’ rights to vote on forgoing their right

to bodily integrity, the court applies the typical standards of

review attendant associated with the rights at issue: here, the

fundamental right to bodily integrity. See, e.g., Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ____, ____,

137 S. Ct. 2012, 2022 (2017) (if the government disqualifies

benefit recipients based on their religious character, “such a

policy imposes a penalty on the free exercise of religion that

triggers the most exacting scrutiny” (emphasis added)); Hobbie

v. Unemployment Appeals Comm. of Florida, 480 U.S. 136, 141–42

(1987); McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994).

The court finds an overview of right to bodily integrity is

helpful.

The fundamental right to bodily integrity is recognized

under the Fourteenth Amendment. See Ingraham v. Wright, 430 U.S.

651, 673–74 (1977); Guertin v. State, 912 F.3d 907, 918 (6th

Cir. 2019) (“[B]odily integrity [is] an indispensable right

recognized at common law as the ‘right to be free from . . .

unjustified intrusions on personal security’ and ‘encompass[ing]

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freedom from bodily restraint and punishment.’” (quoting

Ingraham, 430 U.S. at 673–74)); Doe v. Rosa, 795 F.3d 429,

436-37 (4th Cir. 2015) (“Under established precedent, these

constitutional rights include a Fourteenth Amendment substantive

due process right against state actor conduct that deprives an

individual of bodily integrity.”); Meeker v. Edmundson, 415 F.3d

317, 321 n.2, 323 (4th Cir. 2005) (recognizing the right to

bodily security protected by substantive due process). As a

fundamental right, the right to bodily integrity is subject to

strict scrutiny. See Bostic, 760 F.3d at 377 (“Strict scrutiny

applies only when laws significantly interfere with a

fundamental right.”); see also Guertin v. State, 912 F.3d at

919–20 (summarizing the history of the fundamental right to

bodily integrity and noting “individuals possess a

constitutional right to be free from forcible intrusions on

their bodies against their will, absent a compelling state

interest” (quoting Planned Parenthood Sw. v. Ohio Region v.

Dewine, 696 F.3d 490, 506 (6th Cir. 2012))).

The court next must determine whether Plaintiffs’ right to

bodily integrity is actually at risk here. If the court finds

that potentially being exposed to COVID-19 is a violation of

bodily integrity, then Plaintiffs will have demonstrated that

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the State is forcing them to forgo their right to bodily

integrity in order to vote.

The court is mindful that the Due Process Clause of the

Fourteenth Amendment “does not apply to ordinary governmental

neglect, bad policy or inaction, but rather ‘only the most

egregious official conduct can be said to be arbitrary in the

constitutional sense.’” J.S. ex rel. Simpson v. Thorsen, 766 F.

Supp. 2d 695, 704 (E.D. Va. 2011) (quoting Waybright v.

Frederick Cty., Md., 528 F.3d 199, 204 (4th Cir. 2008)). Thus,

“the Supreme Court has, for half a century now, marked out

executive conduct wrong enough to register on a due process

scale as conduct that ‘shocks the conscience,’ and nothing

less.” Waybright, 528 F.3d at 205 (quoting Cty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998)); see also Cty. of Sacramento,

523 U.S. at 846 (noting the Supreme Court had previously “found

the forced pumping of a suspect’s stomach enough to offend due

process as conduct ‘that shocks the conscience’ and violates the

‘decencies of civilized conduct’”).

Plaintiffs point to Guertin v. State, 912 F.3d 907 (6th

Cir. 2019), for a comparison for their bodily integrity claim.

Guertin dealt with the Flint Water Crisis, in which Flint public

officials switched the city’s water supply from Detroit’s water

system to the Flint River, processed by an outdated water

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treatment plant, without adding chemicals to counter “the river

water’s known corrosivity.” Id. at 915. This resulted in

dangerous levels of lead in the blood of the children in Flint,

along with a host of other health problems. Id. The Sixth

Circuit observed that “[t]he crisis was predictable, and

preventable.” Id. The court found that “[i]nvoluntarily

subjecting nonconsenting individuals to foreign substances with

no known therapeutic value — often under false pretenses and

with deceptive practices hiding the nature of the interference —

is a classic example of invading the core of the bodily

integrity protection,” and held that the government had

committed an “egregious violation of the right to bodily

integrity.” Id. at 920–21, 935.

Legislative Defendants would have the court construe

Plaintiffs’ claim as one for a substantive due process violation

concerning the fundamental right to bodily integrity, as opposed

to an unconstitutional conditions claim, wherein Plaintiffs

would be forgoing one right in order to exercise another. (Leg.

Defs.’ Resp. (Doc. 51) at 52.) The court disagrees. Taking as

true Plaintiffs’ claim, the State would, through the One-Witness

Requirement, force Plaintiff Bentley to give up her right to not

be exposed to COVID-19 in order to receive the benefit of voting

by absentee ballot.

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 Legislative Defendants would also have the court follow

DeShaney v. Winnebago County Department of Social Services, 489

U.S. 189 (1989), and its progeny in the Fourth Circuit,

concerning the State’s role in the fundamental right of bodily

integrity. (Leg. Defs.’ Resp. (Doc. 51) at 52.) Under DeShaney,

the Supreme Court held that the Fourteenth Amendment Due Process

Clause does not “generally confer [an] affirmative right to

governmental aid, even where such aid may be necessary to secure

life, liberty, or property interests of which the government

itself may not deprive the individual.” Id. at 196; see also

Stevenson ex rel. Stevenson v. Martin Cty. Bd. of Educ., 3 F.

App’x 25, 31 (4th Cir. 2001) (“Failing to provide protection

from danger does not implicate the state in the harm caused by

third parties.”). For liability to attach, there must be

“affirmative misconduct by the state.” Pinder v. Johnson, 54

F.3d 1169, 1175 (4th Cir. 1995). Thus, Legislative Defendants

argue, because COVID-19 is a natural phenomenon not caused by

the State, Plaintiffs cannot establish a due process violation

because the Constitution does not “require the State to protect

Plaintiffs from a pandemic when voting.” (Leg. Defs.’ Resp.

(Doc. 51) at 52–53.) Legislative Defendants alternatively argue

Plaintiffs’ injuries fall outside the scope of the Supreme

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Court’s conception of the fundamental right of “bodily

integrity.” (Id. at 54.)

The court disagrees with Legislative Defendants’ framing of

the State’s role here; the State is plainly affirmatively

requiring action for those wishing to vote absentee — have

someone witness their ballot. Unlike in DeShaney, in which the

government failed to intervene in a father beating his child,

here, the State requires that, in order to vote, a voter must

potentially expose themselves to contracting COVID-19. The

Fourth Circuit’s analysis in Meeker is persuasive here: dealing

with facts involving a coach encouraging other teammates to beat

up the plaintiff, the court distinguished DeShaney, stating, “if

[the plaintiff] can prove, as he alleges, that [the defendant]

‘instituted, permitted, endorsed, encouraged, [and] facilitated’

the beatings, [the defendant] cannot escape liability simply

because he did not administer the beatings with his own hands.”

Meeker, 415 F.3d at 322. So too here: the State cannot escape

liability simply because it does not administer COVID-19 to

voters with its own hands; as long as it “permitted” and

“facilitated” the contraction of COVID-19 with its requirements,

it can be held liable if the court were to find that such

facilitation “shocks the conscience.”

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 However, given the court’s findings as to the risk of

contracting COVID-19, as discussed supra Part II.E.1.a.i, the

court cannot say that Plaintiffs have demonstrated a likelihood

of success on the merits that requiring a voter to procure a

witness for an absentee ballot when all of the precautionary

measures are taken “shocks the conscience” such that the One-

Witness Requirement constitutes a violation of bodily integrity.

The court notes that the State is not requiring anyone to

interact with anyone suspected to have COVID-19.

Further, regarding voting in person, Dr. Plush, whose

testimony this court credits due to his history of treating

patients with COVID-19, testified that he does “not believe that

there is significant risk [from in-person voting] if the --

guidance from the CDC, including physical distancing, wearing a

face mask, diligent hand hygiene, and environmental

decontamination is followed, then the risk to the individual is

very low and can approach zero.” (Doc. 111 at 37.) Dr. Plush

compared voting to going to the grocery store. (Id. at 38.)

Regarding high-risk voters, Dr. Plush nevertheless testified

that it would be preferable for those voters to take advantage

of absentee voting. (Id.)

In light of this evidence, the court finds that the

possibility of contracting COVID-19 is not sufficient to

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establish a violation of bodily integrity. Plaintiffs have

failed to demonstrate a likelihood of success on the merits on

their unconstitutional conditions claim.

3. Freedom of Association Claim

Plaintiffs further argue the Request Assistance Ban “stymie

the Organizational Plaintiffs and their members’ core political

speech and expressive conduct to engage potential voters and

encourage them to vote by assisting voters with requesting and

submitting absentee ballot requests.” (Pls.’ Br. (Doc. 10) at

64; see also Second Am. Compl. (Doc. 30) ¶¶ 126–29.) Plaintiffs’

free association claim thus relates only to the completing and

submitting of absentee ballot request forms, not absentee

ballots themselves. The relevant North Carolina law Plaintiffs

seek to enjoin is N.C. Gen. Stat. § 163-230.2, which 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.

(Pls.’ Br. (Doc. 10) at 67; see also Second Am. Compl. (Doc. 30)

¶¶ 126–29.)

Plaintiffs contend there is ambiguity “in what constitutes

‘completing’ a request form,” which “will inevitably ‘chill’

Plaintiffs’ expressive conduct.” (Pls.’ Reply (Doc. 74) at 36.)

They further argue that the assistance of voters is itself “an

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expression of Plaintiffs’ view that the act of voting and

helping others to vote promotes democracy.” (Id.)

In response, Legislative Defendants contend the Request

Assistance Ban does not violate Plaintiffs’ free speech and free

association rights, because it “does not touch on protected

speech or association at all.” (Leg. Defs.’ Resp. (Doc. 51) at

56.) Legislative Defendants argue Plaintiffs are free to “say

anything they want to any registered voter regarding absentee

ballot requests. Indeed, they can stand over the shoulder of a

voter and explain step-by-step how to correctly fill out the

absentee ballot request.” (Id. at 57.)

The parties also disagree over whether Plaintiffs’ proposed

actions are expressive conduct which implicates the First

Amendment.

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, “we cannot

accept the view that an apparently limitless variety of conduct

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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).

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 (alterations in original) (internal quotation

marks omitted). 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). As

Plaintiffs’ point out, 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),

reconsidered on separate grounds, No. CIV 08-0702 JB/WDS, 2010

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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 Conference of N.A.A.C.P. 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” under Meyer v. Grant, 486 U.S. 414 (1988)

and Buckley v. American Constitutional Law Foundation, 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, rather than strict

scrutiny. Id. at 1213–18.

Further, a district court in Michigan recently dealt with a

similar set of prohibitions on assisting voters in requesting,

completing, and returning absentee ballots. Priorities USA, 2020

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WL 2615766, at *7–8. 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 *5. 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 *11. 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,” thus strict scrutiny applied. Id. at *8, *13.

Defendants, however, are also correct in noting 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. Az. 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

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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, 1333–34 (S.D. Fl. 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).

The court sees assisting voters in registering to vote as

analogous to assisting voters in filling out a request form for

an absentee ballot, and further finds the reasoning of the

Priorities USA court persuasive. The court therefore finds that

assisting voters in filling out a request form for an absentee

ballot is “expressive conduct” which implicates the First

Amendment. Regarding the delivering of the absentee ballot

requests, however, the court will follow the Fifth and Ninth

Circuits in finding that the collecting and delivering of

absentee ballot request forms is not expressive conduct and

therefore does not implicate the First Amendment. The court will

next examine each of these restrictions under the respective

levels of scrutiny.

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 a. Assistance in Filling Out a Ballot Request
Form

Although the court finds assisting voters in filling out

ballot request forms is subject to the First Amendment, the

Anderson-Burdick balancing test, instead of strict scrutiny,

likely applies. 29 See Thompson v. Dewine, 959 F.3d 804, 811 (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).

Legislative Defendants contend the State’s interests in

combating election fraud are weighty, (Leg. Defs.’ Resp. (Doc.

51) at 59); it points to the Dowless Scheme as evidence that

“absentee ballots are particularly susceptible to fraud,” (id.

at 37). Legislative Defendants also submit evidence that “at

29The district court in Tennessee State Conference of

N.A.A.C.P., 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 noting 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. at 701.
Nevertheless, the court finds the reasoning set forth in Herrera
regarding what standard to apply persuasive and adopts it here.
See Herrera, 690 F. Supp. 2d at 1213–15.

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least 1,265 voters” voted in both North Carolina and another

state in the 2016 general election. (Id. at 37; Doc. 51-2 ¶ 11.)

Plaintiffs’ interests are in exercising their core

political speech. (Pls.’ Br. (Doc. 10) at 66.) However, as

Legislative Defendants note, Plaintiffs are not barred from

talking with voters about absentee voting, or even talking them

through the process of filling out a request form. “Indeed,

[Plaintiffs] can stand over the shoulder of a voter and explain

step-by-step how to correctly fill out the absentee ballot

request.” (Leg. Defs.’ Resp. (Doc. 51) at 57.) Thus, it appears

to the court, that Plaintiffs experience almost no burdening or

restriction of their political speech, as long as they do not

mark the voter’s request form themselves.

The court finds that the burdens on Plaintiffs’ First

Amendment speech and association rights are justified by the

State’s interest in preventing fraud; Plaintiffs have failed to

demonstrate a likelihood of success on the merits with respect

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to the prohibition on assisting a voter in filling out an

absentee ballot request form. 30

b. 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) (“[S]ince

we hold . . . that the Act does not violate appellee’s right of

free exercise of religion, we have no occasion to apply to the

challenged classification 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

30The court finds that even if this restriction were

subject to strict scrutiny, it would still survive. To survive
strict scrutiny, the restriction must “be narrowly drawn to
advance a state interest of compelling importance.” Marcellus v.
Va. State Bd. of Elections, 849 F.3d 169, 175 (4th Cir. 2017)
(citation omitted). Here, Plaintiffs are allowed to “explain
step-by-step” how to correctly fill out an absentee ballot
request; the only expressive conduct that is prohibited is the
physical filling out of the request form. This prohibition
serves the “compelling” state interest of preventing fraudulent
absentee ballot requests. The court finds this law is therefore
“narrowly drawn to advance a state interest of compelling
importance.”

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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. Id. at 315.

Here, Legislative Defendants contend 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.’ Resp. (Doc. 51) at 59.) The court

finds that this restriction is related to a legitimate

governmental purpose and will likely be upheld.

The court finds Plaintiffs have not demonstrated a

likelihood of success on the merits regarding their challenge to

the Request Assistance Ban, N.C. Gen. Stat. § 163-230.2, under a

First Amendment freedom of association theory.

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 4. Procedural Due Process

The court finds Plaintiffs have demonstrated a likelihood

of success as to their procedural due process claim with regard

to absentee ballots.

Plaintiffs argue the State’s election laws do not afford

mail-in absentee voters any notice of, or opportunities to cure,

material defects in either their absentee ballot request forms

or the absentee ballots themselves, resulting in the deprivation

of Plaintiffs’ right to vote by mail. (Pls.’ Br. (Doc. 10) at

70.) As the court noted supra Part II.A.5, Plaintiffs only have

standing to challenge a lack of process regarding absentee

ballots, not absentee ballot requests. The court will therefore

only address absentee ballots in its analysis.

To state a § 1983 claim for a procedural due process

deprivation, a plaintiff must demonstrate: “(1) a cognizable

liberty or property interest; (2) the deprivation of that

interest by some form of state action; and (3) that the

procedures employed were constitutionally inadequate.” Accident,

Injury & Rehab., PC v. Azar, 943 F.3d 195, 203 (4th Cir. 2019)

(quoting Iota Xi Chapter of Sigma Chi Fraternity v. Patterson,

566 F.3d 138, 145 (4th Cir. 2009)). “To assess the

constitutional adequacy of an opportunity to be heard, courts

consider (1) the private interest affected by the official

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action; (2) the risk of an erroneous deprivation of that

interest given the procedures used, as well as the probable

value, if any, of additional or substitute procedural

safeguards; and (3) the government’s interest,” id., “including

the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would

entail,” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

The court notes that most cases involving procedural due

process challenges involving absentee ballots arise from

signature matching procedures which result in erroneous

rejections of ballots. See, e.g., Self Advocacy Sols. N.D. v.

Jaeger, Case No. 3:20-cv-00071, ____ F. Supp. 3d ____, 2020 WL

2951012, at *8 (D.N.D. June 3, 2020); Martin, 341 F. Supp. 3d at

1329; Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H.

Aug. 14, 2018); Zessar v. Helander, No. 05 C 1917, 2006 WL

642646, at *2. (N.D. Ill. Mar. 13, 2006). Nevertheless, the same

concerns articulated in Self-Advocacy Solutions N.D. are present

here: “sufficient predeprivation process is the constitutional

imperative. On this front, North Dakota’s signature-matching

requirement is wholly deficient. Voters are simply never

notified or afforded any opportunity to respond if election

officials reject their ballots for a signature discrepancy.”

2020 WL 2951012, at *9.

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 The court construes Plaintiffs’ challenge as a facial

challenge, given they have not identified a voter to whom the

North Carolina statutes have been unconstitutionally applied.

See Martin, 341 F. Supp. 3d at 1337. “A facial challenge is

really just a claim that the law or policy at issue is

unconstitutional in all its applications.” Bucklew v. Precythe,

587 U.S. ___, 139 S. Ct. 1112, 1127 (2019). In addressing a

facial challenge, “[t]he proper focus of the constitutional

inquiry is the group for whom the law is a restriction, not the

group for whom the law is irrelevant.” City of L.A. v. Patel,

576 U.S. 409, 418 (2015) (quoting Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833, 894 (1992)). The court

will therefore direct its focus on voters who make a material

error on their ballot that is capable of being remedied, such as

witness contact information, or a signature mismatch.

Legislative Defendants argue first, that the right-to-vote

absentee is not a protected interest, and second, even if it is

a protected interest, the burden of adopting the added safeguard

in the form of a curing procedure on the State is too heavy and

thus the State may reject such a procedure. (Leg. Defs.’ Resp.

(Doc. 51) at 60–61.) Legislative Defendants also argue that some

county boards of elections already have curing procedures in

place, which they argue Plaintiffs do not address. (Id. at 62.)

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 Executive Defendants argue Plaintiffs fail to demonstrate

that the lack of a standardized cure process places an undue

burden on voters. (Exec. Defs.’ Resp. (Doc. 58) at 35.)

The court will examine whether Plaintiffs have demonstrated

a cognizable interest, the deprivation of that interest, and

that the procedures employed were constitutionally inadequate.

a. Cognizable Liberty Interest

The court begins by determining whether the right to vote

by absentee ballot is a constitutionally protected liberty

interest.

The right to vote is a constitutionally protected liberty

interest. See Burdick, 504 U.S. at 433 (“[V]oting is of the most

fundamental significance under our constitutional structure.”);

Self Advocacy Sols. N.D, 2020 WL 2951012, at *8. While there is

no federal constitutional right to vote by absentee ballot, see

McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802,

807-08 (1969), “[c]ourts around the country have recognized that

‘[w]hile it is true that absentee voting is a privilege and a

convenience to voters, this does not grant the state the

latitude to deprive citizens of due process with respect to the

exercise of this privilege.’” Martin, 341 F. Supp. 3d at 1338

(quoting Raetzel v. Parks/Bellemont Absentee Election Bd., 762

F. Supp. 1354, 1358 (D. Ariz. 1990)). “[O]nce the state creates

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an absentee voting regime, they ‘must administer it in

accordance with the Constitution.’” Id. (quoting Zessar, 2006 WL

642646, at *6); see Self Advocacy Sols. N.D., 2020 WL 2951012,

at *8; Saucedo, 335 F. Supp. 3d at 217 (acknowledging that the

privilege of absentee voting is afforded due process

protections); see also Ga. Muslim Voter Project v. Kemp, 918

F.3d 1262, 1270–73 (11th Cir. 2019) (denying request for stay of

injunction) (Pryor, J., concurring). These cases dealt with

erroneous rejections based on the voters’ signatures not

matching. Martin, 341 F. Supp. 3d at 1331 (quoting Raetzel, 762

F. Supp. at 1358; see also Self Advocacy Sols. N.D., 2020 WL

2951012, at *2; Saucedo, 335 F. Supp. 3d at 205–06.

As Plaintiffs correctly observe, North Carolina law vests

registered North Carolina voters with the right to vote by

mail-in absentee ballot. N.C. Gen. Stat. § 163-226(a). Thus,

North Carolina, having “authorized the use of absentee ballots,”

must afford appropriate due process protections to the use of

the absentee ballots. Legislative Defendants’ first argument is

therefore without merit; Plaintiffs have demonstrated a

protected liberty interest in the counting of their votes when

submitted through absentee voting.

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 b. Deprivation of Constitutionally-Protected
Liberty Interest

Having determined Plaintiffs allege a constitutionally-

protected liberty interest, the court now must determine whether

“the challenged statutes facially effect a deprivation of the

right to vote without due process.” Self Advocacy Sols. N.D.,

2020 WL 2951012, at *9.

For instance, in Raetzel, the district court in Arizona

addressed a challenge to Arizona’s procedure for disqualifying

absentee ballots if the Absentee Election Board challenged an

absentee ballot on the basis that the voter was not a “qualified

elector of the voting precinct,” or if the voter’s accompanying

affidavit was “insufficient.” 762 F. Supp. at 1357. The voter

was given no direct notice if their ballot was challenged and

disqualified, only the county chairman of each political party

were given notice. Id. The court found that “due process is not

provided when the election procedures do not give some form of

post-deprivation notice to the affected individual so that any

defect in eligibility can be cured and the individual is not

continually and repeatedly denied so fundamental a right.” Id.

at 1358.

Similarly, in Zessar, the district court in Illinois found

that the Illinois statutory procedure constitutionally

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deficient. 2006 WL 642646, at *2. Under the Illinois procedure,

election judges would open absentee ballots on election day and

determine whether the ballot should be counted. Id. Reasons for

rejecting a ballot included mismatched signatures, failing to

fill out the certification envelope completely, and incorrect

information on the certificate, among others. Id. If the

election judges agreed to reject a ballot, they would fill out a

“Notice of Challenge” card the night of the election, which

would then be mailed to the voter. Id. at *2–3. If a ballot is

rejected, the voter has “no opportunity to oppose the rejection

or to demonstrate that it was erroneous. Her vote simply does

not count in the election.” Id. at *6. The district court found

that, under this procedure, absentee “voters risk the

deprivation of their vote, a liberty interest, based on factual

issues relating to their ballot.” Id.

Thus, when the ballot is rejected for a reason that is

curable, such as incomplete witness information, or a signature

mismatch, and the voter is not given notice or an opportunity to

be heard on this deficiency, the court finds this “facially

effect[s] a deprivation of the right to vote.” Self Advocacy

Sols., N.D., 2020 WL 2951012, at *9.

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 c. Whether Procedures in Place are
Constitutionally Adequate

Turning to the adequacy of the procedures in place in North

Carolina, the court is compelled to find that the complete lack

of statewide curing procedure is constitutionally inadequate.

The “deprivation of a protected interest warrants some sort

of notice and opportunity to be heard.” Rockville Cars, LLC v.

City of Rockville, 891 F.3d 141, 145–46 (4th Cir. 2018); see

Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (“Parties whose rights

are to be affected are entitled to be heard; and in order that

they may enjoy that right they must first be notified.”). In

determining whether the procedures are adequate, the court will

balance the private interest, the risk of erroneous deprivation,

and the government’s interest. Mathews, 424 U.S. at 335.

First, the private interest of a voter being able to vote

absentee is weighty, see Self Advocacy Sols. N.D., 2020 WL

2951012, at *9; Martin, 341 F. Supp. 3d at 1338, particularly in

the circumstances present with this pandemic.

Second, turning to the risk of erroneous rejection of a

ballot, the court finds there is a risk of erroneous rejection.

There are currently no procedures in place statewide that would

either notify a voter that their absentee ballot has a material

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error nor allow such a voter to be heard in challenging such a

rejection. (See Evidentiary Hr’g Tr., vol. 2 (Doc. 113) at 122.)

In examining the data submitted by Plaintiffs as to why

absentee ballots were rejected in the March 3, 2020 North

Carolina primary, (Doc. 73-7 at 10), the court finds that the

reasons for rejecting ballots, such as “signature different,”

and “witness info incomplete,” pose a risk of erroneous

rejection, even though the comparative numbers are relatively

low. “While the Court recognizes that the risk of an erroneous

deprivation is by no means enormous, permitting an absentee

voter to resolve an alleged signature discrepancy nevertheless

has the very tangible benefit of avoiding disenfranchisement.

Accordingly, the probative value of additional procedures is

high in the present case.” Martin, 341 F. Supp. 3d at 1339

(internal citation omitted).

Finally, the court considers the State’s interest and the

fiscal and administrative burdens on the State in providing

pre-rejection process to voters applying for absentee ballots

and voting absentee.

Legislative Defendants argue that the burden of adopting

the added safeguard in the form of a curing procedure on the

State is too heavy and thus the State may reject such a

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procedure. 31 Given Defendant Bell testified that the State BoE is

working on implementing a curing procedure, (Evidentiary Hr’g

Tr., vol. 2 (Doc. 113) at 54), and that several counties have

processes in place already, (id. 121–22), the court finds this

argument without merit. 32

The court finds the burden on the State at this point is

minimal.

d. Due Process Conclusion

Under the Mathews factors, Plaintiffs have demonstrated a

likelihood of success that the current process available to

absentee voters is constitutionally inadequate; Plaintiffs have

therefore demonstrated a likelihood of success on their

procedural due process claim. The court finds an injunction

should issue prohibiting the State BoE from disallowing or

rejecting absentee ballots without due process as to those

31The court also finds Legislative Defendants’ reliance on

Kendall v. Balcerzak, 650 F.3d 515 (4th Cir. 2011) inapposite.
That case dealt with the invalidation of signatures on a
petition, not absentee ballots. Id. at 529. Further, the
government entity there gave the petition’s sponsor notice and
an opportunity to be heard. Id. Given the differences between
the present facts and that case, the court does not find Kendall
persuasive.

32It concerns the court that up until this point, there was
no uniform curing process issued by the State BoE; North
Carolinians should not be subject to disparate due process
protections based on the county in which they reside.

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ballots with a material error that is subject to remediation,

such as a signature mismatch or deficient witness contact

information.

5. Americans with Disabilities Act and

Rehabilitation Act

The court next determines whether Plaintiffs have shown a

likelihood of success on their ADA and Rehabilitation Act

claims. Only Plaintiff Hutchins has standing to bring an ADA/RA

claim. See supra Part II.B. Plaintiff Hutchins is ninety-one

years old and is blind. (Hutchins’s Decl. (Doc. 11-9) ¶¶ 1–2.)

He presently resides in a locked-down nursing facility where

residents are required to social distance. (Id. ¶¶ 6–7.) Under

current laws and circumstances, Plaintiff Hutchins is not able

to vote, as will be explained hereafter.

Plaintiff Hutchins brings both disparate impact and failure

to provide reasonable accommodations claims under Title II of

the Americans with Disabilities Act and Section 504 of the

Rehabilitation Act. (Second Am. Compl. (Doc. 30) ¶¶ 144–78.) He

seeks an injunction against the One-Witness Requirement under

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N.C. Gen. Stat. § 163-231(a), 33 and the prohibition on assistance

from nursing home workers, owners, and managers under N.C. Gen.

Stat. §§ 163-226.3(a)(4)–(6), 163-230.2(e)(4), and 163-

231(b)(1). (Pls.’ Br. (Doc. 10) at 76–77; Pls.’ Am. Mot. (Doc.

31) at 5.) As the court found, supra Part II.B, that while

Plaintiff Hutchins has standing to bring an ADA/RA challenge, he

does not have standing to challenge N.C. Gen. Stat. § 163-

230.2(e)(4), regarding assistance in requesting an absentee

ballot. The court will therefore not consider § 163-230.2(e)(4)

in its analysis.

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132.

Section 504 of the RA also provides that “[n]o otherwise

qualified individual with a disability in the United States,

33While Plaintiffs’ memorandum in support of their motion

for preliminary injunction discusses the two-witness
requirement, (see Pls.’ Br. (Doc. 10) at 77), Plaintiffs adopted
the memorandum as part of their amended motion for preliminary
injunction against the One-Witness Requirement, (Pls.’ Am. Mot.
(Doc. 31) at 5, 8.) The court will therefore construe
Plaintiffs’ arguments against the two-witness requirement as
against the One-Witness Requirement.

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. . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity

receiving Federal financial assistance . . . .” 29 U.S.C.

§ 794(a). The court is mindful that the ADA has a “broad scope

of protection.” ADA Amendments Act of 2008, Pub. L. No. 110-325,

§ 2(b)(1), 122 Stat. 3553 (2008).

To prevail on Title II and Section 504 claims, 34 “plaintiffs

must show: (1) they have a disability; (2) they are otherwise

qualified to receive the benefits of a public service, program,

or activity; and (3) they were denied the benefits of such

service, program, or activity, or otherwise discriminated

against, on the basis of their disability.” Nat’l Fed’n of the

Blind v. Lamone, 813 F.3d 494, 502-03 (4th Cir. 2016). A

plaintiff need not be wholly-barred from receiving the benefits

of the service, program or activity; it is enough that service,

program, or activity is not “readily accessible.” 28 C.F.R.

§ 35.150(a).

34As Plaintiffs note, the Fourth Circuit considers Title II

and Section 504 claims together. Nat’l Fed’n of the Blind v.
Lamone, 813 F.3d 494, 502 n.4 (4th Cir. 2016) (noting Section
504 and Title II claims “can be combined for analytical
purposes” (quoting Seremeth v. Bd. of Cty. Comm’rs Frederick
Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012))).

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 The Fourth Circuit has interpreted Title II as imposing “an

affirmative obligation to make ‘reasonable modifications to

rules, policies, or practices, the removal of architectural,

communication, or transportation barriers, or the provision of

auxiliary aids and services’ to enable disabled persons to

receive services or participate in programs or activities.’”

Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 488 (4th Cir. 2005) (quoting 42 U.S.C. § 12131(2)).

Plaintiffs bring disparate impact and failure to provide

reasonable accommodations claims. Specifically, Plaintiffs

allege Plaintiff Hutchins will be disparately impacted by the

One-Witness Requirement, due to being quarantined in his nursing

home. (Second Am. Compl. (Doc. 30) ¶¶ 166, 168, 174, 176.)

Plaintiffs also allege Plaintiff Hutchins has not been provided

with reasonable accommodations given he is prohibited from

asking staff or nurses at his nursing home to help him mark,

complete, and submit his absentee ballot, and neither his wife

nor a MAT may assist him, due to his nursing home being on

lockdown. (Id. ¶¶ 150–51, 160–61.)

The State BoE receives Federal financial assistance in

carrying out elections. (See, e.g., Second Am. Compl. (Doc. 30)

¶ 173.) The State BoE is therefore subject to Section 504 of the

RA, which Defendants do not contest.

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 Having determined that only Plaintiff Hutchins has standing

to challenge North Carolina’s absentee voting laws under the

ADA/RA, see supra Part II.B, the court will move ahead in

determining whether Plaintiffs have established a likelihood of

success on the merits as to the ADA/RA claims for Plaintiff

Hutchins. See Lamone, 813 F.3d at 505 (determining Maryland’s

absentee voting program was the appropriate subject of the

court’s ADA analysis because the plaintiffs challenged

Maryland’s absentee ballot accommodations).

Defendants do not contest Plaintiff Hutchins has a

disability, nor do they contest Plaintiff Hutchins is “otherwise

qualified to receive the benefits of a public service, program

or activity,” namely, absentee voting. Executive Defendants only

challenge the third element — that Plaintiff Hutchins was

“denied the benefits of such service, program, or activity” on

the basis of his disability. (Exec. Defs.’ Resp. (Doc. 58) at

26.) Executive Defendants argue the restrictions do not deny

voters assistance altogether, but that they “merely limit the

number of people who are permitted to come into contact with

absentee ballot requests to reduce the chance of voter fraud.”

(Id.) Plaintiffs, in Executive Defendants’ view, therefore fail

to demonstrate that Plaintiff Hutchins has been “denied the

franchise.” (Id.)

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 Legislative Defendants argue Plaintiff Hutchins can be

helped or assisted by another nursing home resident, thus

“[t]here is no scenario in which Hutchins will be

disenfranchised by the prohibition on nursing home staff

assisting him.” (Leg. Defs.’ Resp. (Doc. 51) at 64.) Legislative

Defendants also argue the ADA and the RA only entitle Plaintiff

Hutchins to “meaningful access” to the opportunity to cast an

absentee ballot, which, they contend, he has under the current

absentee ballot framework. (Id.)

The court first notes Executive Defendants misstate the

law; the standard is not whether Plaintiff Hutchins has been

“denied the franchise,” but whether the franchise is “readily

accessible” to Plaintiff Hutchins. In other words, the court

must determine whether he has been denied “meaningful access” to

absentee voting. See Lamone, 813 F.3d at 507. To the extent

Executive Defendants’ argument is predicated on Plaintiff

Hutchins needing to have been “altogether” denied the right to

vote, that argument is not persuasive.

The court turns to whether the current laws deny Plaintiff

Hutchins “meaningful access” to absentee voting.

Under the current laws, Plaintiff Hutchins is not able to

have any “owner, manager, director, [or] employee” of his

nursing home, assist him by witnessing his absentee ballot,

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marking or assisting in marking his absentee ballot, or helping

return his absentee ballot, even if he is not able to obtain

assistance from a near relative, legal guardian, or MAT. N.C.

Gen. Stat. § 163-226.3(a)(4)–(5). While he may receive

assistance from another resident, he may only do so after

demonstrating he is not able to obtain assistance from a near

relative, legal guardian, or MAT if it is not available to

assist him within seven days of his request. Id. § 163-

226.3(a)(4).

Regarding marking and completing his ballot, Plaintiff

Hutchins’s declaration belies that he could receive assistance

from another resident, a near relative, or a MAT. Due to his

disability, Plaintiff Hutchins needs hands-on assistance in

voting: he states that, in the 2018 election, his wife “recited

the candidates and when I informed her of my choice, she would

position my hand so that I could mark my ballot.” (Hutchins’s

Decl. (Doc. 11-9) ¶ 5.) But the nursing home in which he resides

is on lockdown and no visitors, including family members, are

allowed in, it does not appear he has a legal guardian in the

nursing home, and the residents are told to maintain at least

six feet of distance from each other; thus, there is no person

available to assist Mr. Hutchins under § 163-226.3(a)(4). (Id.

¶¶ 5–7.)

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 Because the law explicitly prohibits Hutchins from seeking

assistance from any employees of his nursing home, he has only

his fellow residents for help, but given their mutual

vulnerabilities, 35 and the strict social distancing measures in

place, it does not seem to the court that this constitutes

“meaningful access” to voting under § 163-226.3(a)(4).

The court finds that but for his blindness, Plaintiff

Hutchins would be able to fill out an absentee ballot on his

own. Though the statute preventing the employees of the nursing

home in which he resides from helping him is not based on his

disability, that statute has the effect of depriving Plaintiff

Hutchins of “meaningful access” to absentee voting due to his

disability. He asserts in his unrebutted declaration that he

“would like The Davis Community staff members to be permitted to

assist me in voting and returning my absentee ballot, and . . .

to serve as my witnesses. Otherwise, my blindness will prevent

me from completing and returning my absentee ballot and voting

in the upcoming November election.” (Hutchins’s Decl. (Doc. 11-

35This facility is described as a nursing home, a term

defined in N.C. Gen. Stat. § 131E-101. A nursing home is defined
as “a facility . . . for the express or implied purpose of
providing nursing or convalescent care for three or more persons
. . . .” Id. § 131E-101(6). “A ‘nursing home’ provides care for
persons who have remedial ailments or other ailments, for which
medical and nursing care are indicated.” Id.

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9) ¶¶ 11-12.) If the staff cannot help Plaintiff Hutchins, he

will be completely disenfranchised.

Legislative Defendants’ argument that other residents could

help him fill out an absentee ballot is unpersuasive. Plaintiff

Hutchins asserts that the “residents at Davis community [where

Plaintiff Hutchins resides] are told to maintain at least 6 feet

of distance from each other.” 36 (Id. ¶ 7.) Given Plaintiff

Hutchins needs hands-on assistance in filling out his ballot,

the court cannot conceive of how a resident is supposed to abide

by the social distancing requirements and provide Plaintiff

Hutchins the hands-on assistance he needs in voting. Further,

Plaintiff Hutchins states that he “would like The Davis

Community staff members to be permitted to assist me in voting

and returning my absentee ballot, and only if necessary, to

serve as my witnesses.” (Id. ¶ 11.) Indeed, when Dr. Plush was

asked if someone placing their hand on Mr. Hutchins in order to

assist him in marking his ballot would present a risk, Dr. Plush

stated that even with many precautions taken, such as wearing

gloves, a face shield, and a gown, such hands-on assistance

would present an elevated risk. (Doc. 111 at 39–40.)

36The court directs Legislative Defendants’ attention to

the definition of nursing home. N.C. Gen. Stat. § 131E-101(6).

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 Regarding the One-Witness Requirement, as the court noted,

supra n.9, that Plaintiffs have failed to put forth evidence

tending to prove Plaintiff Hutchins will be unduly burdened by

the One-Witness Requirement such that an injunction should

issue.

Further, while the court is still concerned with respect to

the ability of Plaintiff Hutchins in being able to procure

another resident to witness his ballot, the court cannot say

that any difficulty he may have in procuring a witness is due to

his disability, but instead is because he resides in a locked-

down nursing home. Plaintiffs have not demonstrated that but for

his disability, Plaintiff Hutchins would be able to procure a

witness. Put simply, it appears it is the lockdown status, not

the disability, that creates an issue for witnessing. The court

will not enjoin § 163-226.3(a)(4) insofar as it prohibits

nursing home staff from serving as a witness for an absentee

ballot under the ADA/RA.

Likewise, the court cannot say that § 163-231(b)(1), which

restricts who may return an absentee ballot to a county board of

elections, deprives Plaintiff Hutchins of “meaningful access” to

voting because of his disability. Plaintiffs submitted no

evidence tending to show Plaintiff Hutchins cannot mail his

absentee ballot to the county board of elections because he is

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blind. The court declines to enjoin § 163-231(b)(1) under the

ADA/RA.

Finally, the court, recognizing that the purpose of

§ 163-226.3(a)(4) is to prevent undue influence on vulnerable

people, is satisfied that there are other statutes providing for

criminal penalties for those who unlawfully influence or

interfere with elections in a variety of ways. See N.C. Gen.

Stat. §§ 163-237, 163-274, 163-275.

The court finds that the evidence shows Plaintiff Hutchins

will be disenfranchised under these circumstances; Plaintiffs

have demonstrated a likelihood of success for their ADA/RA claim

regarding N.C. Gen. Stat. §§ 163-226.3(a)(4)–(6), insofar as

these laws deprive him from receiving assistance from staff in

filling out an absentee ballot.

6. Section 208 of the Voting Rights Act

Plaintiffs finally seek an injunction against the absentee

ballot regulations concerning who may assist a voter in both

requesting a ballot as well as completing and returning a

ballot. (Pls.’ Am. Mot. (Doc. 31) at 5, 7–8.) Plaintiff Hutchins

is the only Plaintiff with standing to bring a claim under

Section 208 of the Voting Rights Act, alleging N.C. Gen. Stat.

§§ 163-226.3(a)(4)–(6), 163-230.2(e)(4), 163-231(b)(1) violate

Section 208 by impermissibly restricting who may assist voters

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to whom Section 208 applies. (Second Am. Compl. (Doc. 30) ¶

184.) As the court found, supra Part II.A.7, Plaintiff Hutchins

does not have standing to challenge N.C. Gen. Stat. § 163-

230.2(e)(4). The court’s analysis will therefore only apply to

the remaining laws at issue as they apply to absentee ballots,

not absentee ballot requests.

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).

The 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

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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.

Plaintiffs contend Defendants are violating Section 208 by

preventing 208-voters from selecting their assistor of choice

who is not their employer or union representative to assist them

in marking, completing, or submitting their absentee ballot.

(Pls.’ Br. (Doc. 10) at 79–80.) In particular, Plaintiffs argue

Plaintiff Hutchins, as a voter in need of assistance in marking

and completing his absentee ballot, and delivering it, is

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

union representative. (Id. at 80.)

Executive Defendants do not address this issue. Legislative

Defendants argue Plaintiff Hutchins could have his wife fill out

an absentee ballot request form on his behalf as a “near

relative” under N.C. Gen. Stat. § 163-226.3(c). (Leg. Defs.’

Resp. (Doc. 51) at 65–66.) Because the court is not addressing

the requesting of absentee ballots, this argument is inapposite.

Legislative Defendants further argue “Section 208 allows

blind, disabled, and illiterate voters to be ‘given assistance

by a person’ — not any person — ‘of [their] choice.’” (Id. at

66.) Legislative Defendants frame Section 208 as requiring

states only make “some method of voting with assistance

available to voters who are covered by the provision; North

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Carolina law is consistent with Section 208 so long as there is

at least one means by which Hutchins can cast his ballot with

help from a person of his choice.” (Id. at 67–68.) While

Legislative Defendants are correct that Plaintiff Hutchins’s

wife may fill out a request form for him — and indeed, she has

already done so — she cannot cast his absentee ballot for him.

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

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

that 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

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that Texas’s limitation on voter choice “impermissibly narrows

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

The 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 marking and completing of absentee ballots,

the court finds North Carolina essentially does not allow

Plaintiff Hutchins to choose the person who will assist him.

N.C. Gen. Stat. § 163-226.3(a)(4), also impermissibly restricts

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

clinic, nursing home or rest home,” especially considering the

current circumstances, in which Plaintiff Hutchins resides in a

locked-down nursing home. Section 163-226.3(a)(4) prohibits

anyone but a voter’s near relative, legal guardian, or a member

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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 suffers from a fatal constriction: 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

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.

N.C. Gen. Stat. § 163-226.3(a)(4). Thus, 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.

The court finds these regulations impermissibly narrow

Section 208’s dictate that a voter may be assisted “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. In the present circumstances, many nursing homes

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are locked down and will likely continue to have restricted

access for the foreseeable future; 208-voters in these type of

adult care facilities may only come into contact with “an owner,

manager, director, [or] employee” of their residence and

therefore may not have any options for assistance. More

significantly, it does not appear to this court that a 208-voter

— one who is blind, like Plaintiff Hutchins, can be prohibited

by state law from choosing the individual to assist them in

voting. With those facts in mind, the court is satisfied that

North Carolina’s laws violate Section 208.

Plaintiffs also challenge § 163-231(b)(1) and

§ 163-226.3(a)(5), both 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, or the voter’s near

relative, and § 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.” The

court finds that these restrictions suffer from the same fatal

constriction as § 163-226.3(a)(4); both delivery restrictions

impermissibly dictate who may assist a 208-voter in delivering

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their absentee ballot by only allowing a delineated list of

people to deliver an absentee ballot to the county board of

elections. “The unambiguous language of the VRA resolves” this

dispute. OCA-Greater Houston, 867 F.3d at 614.

The court also finds Legislative Defendants’ reliance on

Ray v. Texas, Civil Action No. 2-06-CV-385 (TJW), 2008 WL

3457021 (E.D. Tex. Aug. 7, 2008), inapposite. The court there

noted that 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 . . .

provided the challenged regulation does not unduly burden the

right to vote.” Id. at *7. The court in Ray dealt with a Texas

law limiting the number of times a person may witness another

voter’s absentee ballot. Id. That court held the law did not

contravene Section 208 as a reasonable restriction by the state.

Id. Here, as demonstrated, the State has chosen the person who

will assist the voter – their legal guardian or near relative.

This limitation is distinguishable from that in Ray. In Ray,

only a few people were off-limits to voters, leaving nearly

everyone else available to witness an absentee ballot, whereas

here, everyone but a few people are off limits. The court

therefore finds Ray unpersuasive.

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 The court finds Plaintiffs have demonstrated a likelihood

of success on the merits as to their VRA claim. The court will

enjoin the following provisions: N.C. Gen. Stat.

§ 163-226.3(a)(4)–(6), and § 163-231(b)(1), to the extent they

prohibit Plaintiff Hutchins, who “requires assistance to vote by

reason of [his] blindness, disability, or inability to read or

write” from receiving “assistance by a person of [Plaintiff

Hutchins’s] choice, other than [his] employer or agent of that

employer or officer or agent of the voter’s union,” 52 U.S.C. §

10508, in marking, completing, and returning his absentee

ballots.

7. Success on the Merits Conclusion

The court finds Plaintiffs have successfully shown a

likelihood of success on the merits as to the following claims:

Violation of Section 208 of the VRA, Title II of the ADA,

Section 504 of the RA, and procedural due process.

F. Irreparable Harm

In addition to a likelihood of success on the merits, a

plaintiff must also make a “clear showing that it is likely to

be irreparably harmed absent preliminary relief” in order to

obtain a preliminary injunction. UBS Fin. Servs., Inc. v.

Carilion Clinic, 880 F. Supp. 2d 724, 733 (E.D. Va. 2012)

(quoting Real Truth About Obama, Inc. v. Fed. Election Comm’n,

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575 F.3d 342, 347 (2009) (4th Cir. 2009)). Further, an injury is

typically deemed irreparable if monetary damages are inadequate

or difficult to ascertain. See Multi-Channel TV Cable Co. v.

Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551

(4th Cir. 1994), abrogated on other grounds by Winter, 555 U.S.

at 22. “Courts routinely deem restrictions on fundamental voting

rights irreparable injury.” League of Women Voters of N.C., 769

F.3d at 247. “[O]nce the election occurs, there can be no

do-over and no redress. The injury to these voters is real and

completely irreparable if nothing is done to enjoin th[ese]

law[s].” Id. And “[o]rganizations with core voter-advocacy

missions, like Plaintiffs in this case, are irreparably harmed

when ‘the defendant’s actions perceptibly impair[] the

organization’s programs, making it more difficult to carry out

its mission.’” N.C. State Conference of NAACP v. Cooper, 430 F.

Supp. 3d 15, 51 (M.D.N.C. 2019) (alteration in original)

(internal quotation marks omitted) (quoting Action NC v. Strach,

216 F. Supp. 3d 597, 642 (M.D.N.C. 2016)). And a “voting-rights

organization is also irreparably harmed when the right to vote

is wrongfully denied or abridged — whether belonging to its

membership or the electorate at large.” Id.

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 The court therefore finds Plaintiffs have demonstrated a

likelihood of irreparable injury regarding their ADA/RA, VRA,

and procedural due process claims.

G. Balance of Equities

The third factor in determining whether preliminary relief

is appropriate is whether the plaintiff demonstrates “that the

balance of equities tips in his favor.” Winter, 555 U.S. at 20.

The court notes Defendants have taken steps towards

remedying the issues posed by the COVID-19 pandemic by passing

and signing into law H.B. 1169. Regarding a curing procedure,

this tips in favor of an injunction of limited duration; it

appears Executive Defendants are on their way towards

implementing a curing procedure, thus an injunction against the

rejection of any absentee ballots until such time as Defendants

implement a plan or procedure to address material defects will

suffice. Further, enjoining the laws restricting assistance for

those in facilities, this tips in Plaintiff Hutchins’s favor.

See N.C. State Conference of NAACP, 430 F. Supp. 3d at 53.

H. Public Interest

Finally, the court must determine whether public policy

weighs in favor of granting preliminary relief.

By definition, “[t]he public interest . . .

favors permitting as many qualified voters to vote as
possible.” [Obama for Am. v.] Husted, 697 F.3d [423,]

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 437 [(6th Cir. 2012)]. See also Purcell v. Gonzalez,
549 U.S. 1, 4, 127 S. Ct. 5 (2006) (The public has a
“strong interest in exercising the fundamental
political right to vote.” (citations omitted)). And
“upholding constitutional rights serves the public
interest.” Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d
249, 261 (4th Cir. 2003).

League of Women Voters of N.C., 769 F.3d at 247–48. Further, as

another judge in this district observed, “electoral integrity is

enhanced, not diminished, when all eligible voters are allowed

to exercise their right to vote free from interference and

burden unnecessarily imposed by others. The public interest is

also served by ‘upholding constitutional rights.’” N.C. State

Conference of NAACP, 430 F. Supp. 3d at 53 (quoting League of

Women Voters of N.C., 769 F.3d at 248).

Though “stability and consistency are also virtues” when it

comes to elections, id., the infringement of the fundamental

right to vote poses a far greater risk. The court finds the

public interest “weighs heavily” in Plaintiffs’ favor as to the

issues for which relief will be granted here. League of Women

Voters of N.C., 769 F.3d at 248.

I. Scope of Relief

The court makes the following findings with regard to the

scope of this injunction.

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 1. Procedural Due Process

The court finds that the State BoE should be enjoined from

the disallowance or rejection, or permitting the disallowance or

rejection, of any absentee ballots without due process as to

those ballots with a material error that is subject to

remediation until such time as the Legislative and Executive

Defendants, including the State BoE, implement a law or rule

which provides a voter with notice and an opportunity to be

heard before a delivered absentee ballot is disallowed or

rejected. This injunctive relief shall terminate upon the

passage or implementation of such a law or rule.

2. Plaintiff Hutchins

Regarding Plaintiff Hutchins, the court finds that an

injunction should issue as to N.C. Gen. Stat.

§§ 163-226.3(a)(4)–(6), -231(b)(1) to remediate Plaintiff

Hutchins’s disenfranchisement under the ADA, the RA, and

improperly limits his request for assistance under the VRA. This

injunction shall remain in force and effect through completion

of the November 3, 2020 General Election, including canvassing

and certification of election results, or until the Legislative

or Executive Defendants address these issues as explained.

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 a. The ADA/RA

First, under the ADA and the RA, Defendants shall be

enjoined from enforcing N.C. Gen. Stat. §§ 163-226.3(a)(4), to

the extent it prohibits Plaintiff Hutchins, a disabled

individual, from receiving assistance in marking and completing

his absentee ballot from an employee or staff member of the

nursing home in which he resides. This injunction shall remain

in effect through the November 3, 2020 General Election or until

The Davis Community allows outside visitors such that a MAT or

his wife could visit and assist him in marking and completing

his absentee ballot. The terms “employees” and “staff,” as used

herein, do not include an owner, manager, or director of the

nursing home. The terms of this injunction would permit staff or

employees of Plaintiff Hutchins’s nursing home to mark or assist

his ballot. The court notes and recognizes that should this

injunction remain in effect through the election, Legislative

Defendants and Executive Defendants remain free to implement

reasonable requirements to effect the terms of this injunction.

b. The VRA

Second, §§ 163-226.3(a)(4)–(a)(6), 37 -231(b)(1) are enjoined

under the VRA as applied to Plaintiff Hutchins until such time

37N.C. Gen. Stat. § 163-226.3(a)(6) is enjoined to the

extent it violates this injunction.

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as Defendants, including the State BoE, implement a law or rule

that permits the disabled individual, Plaintiff Hutchins, to

select his own person to assist him in marking, completing, and

submitting his absentee ballot in accordance with Section 208 of

the VRA.

3. Remaining Issues

The court turns to Legislative Defendants’ remaining

concerns. Legislative Defendants urge the court to heed the

Supreme Court’s warning that “lower federal courts should

ordinarily not alter the election rules on the eve of an

election,” Republican Nat’l Comm. v. Democratic Nat’l Comm., 589

U.S. ____, ____, 140 S. Ct. 1205, 1207 (2020) (per curiam), and

should thus abstain from enjoining the challenged laws, (Leg.

Defs.’ Resp. (Doc. 51) at 69–70).

The court is satisfied that its injunctive relief does not

run afoul of Republican National Committee and Purcell. The

Supreme Court in Purcell, in holding that an injunction against

voter identification procedures entered “just weeks before an

election” was done in error, cautioned that “[c]ourt orders

affecting elections . . . can themselves result in voter

confusion and consequent incentive to remain away from the

polls. As an election draws closer, that risk will increase.”

549 U.S. at 4–5.

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 The injunction prohibiting rejection of absentee ballots

simply requires due process before a mailed-in absentee ballot

is rejected. The State BoE has the statutory duty to “advise

[the county boards of elections] as to the proper methods of

conducting primaries and elections.” N.C. Gen. Stat. § 163-

22(c). The State BoE also has the final responsibility “to

tabulate the primary and election returns [and] to declare the

results.” Id. § 163-22(h). Given that the State BoE is already

working on a curing procedure for mail-in absentee ballots for

this election, this court does not find an injunction preventing

the rejection of absentee ballots without a curing procedure

will “alter the election rules”; the court is merely ensuring

all absentee voters will receive due process, regardless of when

their absentee ballot is delivered. Further, Executive

Defendants argued that September 4, 2020, is the “deadline to

administer absentee-by-mail.” (Evidentiary Hr’g Tr., vol. 2

(Doc. 113) at 35.) This injunction comes at a time when

Executive Defendants themselves are still finalizing the

absentee voting procedure, thus this injunction should not have

the effect of causing voter confusion and “consequent incentive

to remain away from the polls.” Purcell, 549 U.S. at 4–5.

Further, the court further finds, with respect to Plaintiff

Hutchins, that this court’s injunction does not constitute a

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last-minute alteration of election law likely to create voter

confusion; indeed, the absentee voting rules have yet to be

finalized, as absentee voting has not yet started. The court

finds that Purcell does not counsel a different result.

Finally, Legislative Defendants also argue Plaintiffs’

requested relief is overbroad. (Leg. Defs.’ Resp. (Doc. 51) at

72.) The court, however, is satisfied that the relief provided

by the scope of this Memorandum Opinion and Order is

appropriately limited by Purcell and the limits of this court’s

power under the Constitution and the laws of the United States.

III. CONCLUSION

For the foregoing reasons, the court finds that Plaintiffs’

motion for preliminary injunction should be granted in part and

denied in part. The court enjoins the statutes limiting

assistance by employees of the applicable facilities and the

applicable criminal provisions until such time as a plan exists

that would reasonably allow a disabled individual affected by

these statutes to vote. It also enjoins the State BoE from

allowing county boards of elections to reject a delivered

absentee ballot without notice and an opportunity to be heard

until the State BoE puts such a uniform procedure in place.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for

Preliminary Injunction, (Doc. 9), is DENIED AS MOOT and that

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Plaintiffs’ Amended Motion for Preliminary Injunction, (Doc.

31), is GRANTED IN PART AND DENIED IN PART. The Motion is

GRANTED as to N.C. Gen. Stat. §§ 163-226.3(a)(4)–(6), 163-

231(b)(1), and as to Plaintiffs’ procedural due process claim.

The Motion is DENIED as to the remainder of Plaintiffs’

requested relief.

IT IS ORDERED that Defendants, including the North Carolina

State Board of Elections, are PROHIBITED AND ENJOINED from the

disallowance or rejection, or permitting the disallowance or

rejection, of absentee ballots without due process as to those

ballots with a material error that is subject to remediation.

This injunction shall remain in force until such time as

Defendants implement a law or rule which provides a voter with

notice and an opportunity to be heard before an absentee ballot

with a material error subject to remediation is disallowed or

rejected.

IT IS ORDERED that Defendants, their agents, employees, and

state or local law enforcement are PROHIBITED AND ENJOINED from

enforcing, and enforcement of, N.C. Gen. Stat. § 163-226.3(a)(4)

to the extent those provisions of that statute prohibit

Plaintiff Hutchins from receiving assistance in marking and

completing his absentee ballot from an employee or staff member,

as those terms are defined herein, of the nursing home in which

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he resides. This injunction shall remain in effect through the

November 3, 2020 General Election or until The Davis Community

allows outside visitors such that a MAT or his wife could visit

and assist him in marking and completing his absentee ballot.

IT IS ORDERED that Defendants, their agents, employees, and

state or local law enforcement are PROHIBITED AND ENJOINED from

enforcing, and enforcement of, N.C. Gen. Stat.

§ 163-226.3(a)(4)–(6) and N.C. Gen. Stat. § 163-231(b)(1) as to

Plaintiff Hutchins until such time as Defendants, including the

North Carolina State Board of Elections, implement a law or rule

that permits the disabled individual, Plaintiff Hutchins, to

select his own person to assist him in marking, completing, and

submitting his absentee ballot in accordance with Section 208 of

the VRA.

This the 4th day of August, 2020.

__________________________________
United States District Judge

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