North Carolina State Conference of the NAACP v. McCrory

214 F. Supp. 3d 466, 2016 WL 5956011
Procedural entryThis page is a short order in North Carolina State Conference of the NAACP v. McCrory. Read the opinion of the Court — 156 F. Supp. 3d 683
District Court, M.D. North Carolina·Decided October 13, 2016·No. 1:13CV658; 1:13CV660; 1:13CV861·Published

Opinion

ORDER

Thomas D. Schroeder, United States District Judge

Before the court is the “Emergency Motion to Enforce The Injunction” filed by the “Duke Intervenor” Plaintiffs in these consolidated cases. (Doc. 439.)1 Duke In-tervenors also seek an order to show cause why Defendants should not be held in contempt of court. (Doc. 440 at 20.) No other Plaintiff has joined in the motion or seeks this relief. Defendants filed an expedited response, at the court’s direction. (Doc. 444.) No party sought oral argument, but the court held an expedited telephonic hearing at 5:00 p.m. on October 11, 2016. The motion is now ready for consideration.

I. BACKGROUND

Duke Intervenors’ motion is asserted to rely on this court’s July 29, 2016 judgment and injunction effectuating the Fourth Circuit’s decision invalidating certain provisions of North Carolina Session Laws 2013-381 and 2015-103. (Doc. 434.) Pertinent here, the injunction reinstated the State’s pre-2013 early (one-stop, absentee) elections law, which requires each County Board of Elections (“CBOE”) to make available early voting starting the third Thursday before Election Day, continuing to 1:00 p.m. the Saturday before Election Day. See N.C. Gen. Stat. § 163-227.2(b) (2002). This effectively extends early voting from 10 to 17 days.

Following the court’s order, the State’s 100 CBOEs held immediate hearings to reconfigure their early voting plans, many of which had already been developed under the prior law and approved by the State Board of Elections (“SBOE”).2 (Doc. 444-1 at 4.) On August 4, the SBOE directed all CBOEs to redraw their plans to comply with the reinstated State law by August 19. (Id at 14.) The SBOE instructed that five options were available under law: (1) extend the previously submitted plan to the entire 17-day early voting period; (2) retain the previous plan but add an early voting site at the CBOE, as provided by statute; (3) adopt a new plan for the CBOE site and additional sites; (4) adopt a new plan at the CBOE site only; and (5) in case no CBOE action is taken, the default plan will be that all early voting will occur at the CBOE site only during regular business hours and on the last Saturday until 1:00 p.m., as per statute. (Id. at 15.) SBOE reminded all CBOEs that 56% of all voters were expected to vote early and that State law required at a minimum the default plan noted above. (Id. at 14-15.)

Sixty-seven CBOEs adopted unanimous early voting plans that were not appealed to the SBOE. (Id. at 4-6.) Thirty-three CBOE plans adopted by divided (2 to 1) votes were appealed. (Id.)

On September 6, counsel for Duke In-tervenors and Plaintiffs in these consolidated cases co-signed a letter to the SBOE to set forth various concerns about 24 counties’ CBOE plans. (Doc. 442-8.) The letter noted that the lawyers were moni[471] toring the SBOE for compliance with State law and this court’s injunction. (Id.) The parties also threatened to seek “immediate emergency judicial relief’ if the alleged “obvious intentional discrimination” represented by the plans was not rectified. (Id.)

On September 8, the SBOE held twelve hours of hearings on contested plans, during which partisans representing all factions appeared, and announced decisions as to each challenged county plan. (Doc. 444-1 at 5-6.) In 19 of 83 challenged plans, the SBOE adopted either the majority or minority plan. (Id.) In the remaining 14 counties, the SBOE created its own plans. (Id. at 6.) The SBOE memorialized the plans September 13, 2016. (Id.)

On September 21, counsel representing Duke Intervenors and the NAACP Plaintiffs wrote the SBOE requesting changes to three early voting plans (including those of Forsyth and Guilford Counties). (Doc. 442-10 at 2-4.) All of these voting plans were unanimously adopted by the CBOEs and approved by SBOE. (Doc. 444-1 at 6.) SBOE responded on September 23 that those plans had been administratively approved, as per “long-standing” SBOE practice, and, moreover, it was too late to make changes because State law requires counties to publish election notices, including information about one-stop early voting plans, by September 24. (Doc. 442-11); see N.C. Gen. Stat. § 163-128(a).

Duke Intervenors filed their present motion October 1 (a Saturday) challenging 5 of the 100 plans approved by the SBOE. (Doc. 439.) The court entered an order the next business day for expedited response. (Doc. 443.) Defendants filed their response on October 7 (Doc. 444), and the court held a telephonic hearing the next business day (after Columbus Day).

II. ANALYSIS

A. Timing

Defendants raise as a threshold matter the significant question of timing. (Id. at 11.) Early voting commences in one week, on October 20, 2016. (Doc. 442-2 at 2.) Duke Intervenors’ motion comes more than five weeks after the unanimous Guil-ford and Forsyth CBOE plans were submitted to the SBOE on August 24, and twenty-three days after the SBOE’s September 8 hearing during which it announced its ruling on the other 3 plans challenged here. (See Doc. 444-1 at 4, 30.)3 As noted by the SBOE’s executive director, State law required the publication of early voting locations (as well as other precinct information) no later than forty-five days before the election — in this case, September 24, 2016. See N.C. Gen. Stat. § 163-128(a) (“Upon adoption of a resolution establishing, altering, discontinuing, or creating a precinct or voting place, the board shall give 45 days’ notice thereof prior to the next primary or election.”). Thus, all CBOEs and the SBOE were under a very tight time frame to implement the Fourth Circuit’s decision.

Defendants have provided evidence that attempting to alter the location of early voting sites would be difficult and cause disruption at this late date. (See Doc. 444-1 at 12-13 (Declaration of SBOE Executive Director Kim Westbrook Strach noting need to republish notices, unplanned efforts to staff early voting sites, and coordination with third-party property owners).) Added to this are concerns about establishing secure electronic voting equipment at each site. (Doc. 444-2, ¶ 3(g) (describing “difficult and time-consuming process” required to set up secure computer and in[472] formation technology networks).) Counsel for the State reiterated these same concerns during the October 11 hearing, explaining that at this stage the changes are “probably logistieally impossible.”

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North Carolina State Conference of the NAACP v. McCrory, 214 F. Supp. 3d 466, 2016 WL 5956011 (M.D.N.C. 2016).

214 F. Supp. 3d 466 (North Carolina State Conference of the NAACP v. McCrory) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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