STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE

COUNTY OF WARE 13?: 13-33 SUPERIOR COURT DIVISION
:31. 18 CVS 15292

JABARI HOLMES, FRED CULP,
DANIEL E. SMITH, BRENDON A
JADEN PEAY, SHAKOYA CARRIE
BROWN, and PAUL KEARNEY, SR.,

Plaintiffs,
v.

TIMOTHY K. MOORE in his official
capacity as Speaker of the North
Carolina House ofRepresentatives;
PHILLIP E. BERGER in his omcial
capacity as President Pro empore of
the North Carolina Senate; DAVID R.
LEWIS, in his of?cial capacity as
Chairman of the House Select
Committee on Electionsfor the 2018
Third Extra Session; RALPH E. HISE,
in his of?cial capacity as Chairman of
the Senate Select Committee on Election
for the 2018 Third Extra Session; THE
STATE OF NORTH and
THE NORTH CAROLINA STATE
BOARD OF ELECTIONS,

Defendants.

 

THIS MATTER CAME BEFORE THE Court for hearing on March 4, 2019 pursuant to motions
?led by Plaintiffs and Defendants, including Plaintiffs? Motion to Transfer pursuant to NC. Gen.
Stat. Section ?l-267.1 and NC. R. Civ. P. Present in the courtroom for Plaintiffs were
Allison Riggs, and John Carella. Present in the courtroom for Legislative Defendants was David

Thompson. Present for the State of NC was Olga E. Vysotaskaya de Brito.

After considering the pleadings, the Motions by all parties, the briefs submitted by the parties, and
the arguments of counsel for all parties, it is hereby ORDERED that Plaintiffs? Motion to Transfer
is GRANTED and the Legislative Defendants Motion to Dismiss pursuant to 12(b)(1) be DENIED

as to Claims I and II and GRANTED as to Claim 

In support of this Order, this Court states as follows:

CASE HISTORY

On December 19, 2018, Plaintiffs Jabari Holmes, Fred Culp, Daniel E. Smith, Brendon
Jaden Peay, Shakoya Carrie Brown and Paul Kearney, Sr. (?Plaintiffs?) ?led their Veri?ed
Complaint (?Complaint?) against Timothy K. Moore, Phillip E. Berger, David R. Lewis and Ralph
E. Hise (?Legislative Defendants?) and the State of North Carolina and the North Carolina State
Board of Elections (?State Defendants?).

Plaintiffs Complaint sought a declaratory judgment and injunction against N.C. Session
Law 2018-144, SB 824 {?An Act to Implement the Constitutional Amendment Requiring
Photographic Identification to Vote") (the ?Act?) under the North Carolina Constitution, on the
grounds that it:

I. purposefully discriminates against and disproportionally impacts minority voters in
violation of the Equal Protection Clause in Article 1, 19;
II. unduly burdens the fundamental right to vote, in violation of the Equal Protection
Clause in Article 1, 19;
creates separate classes of voters, in violation ofthe Equal Protection Clause in Article
1, 19;
IV. imposes a cost on voting, in violation ofthe Free Elections Clause in Article I, 10;
V. imposes a property requirement for voting, in violation of the Property Quali?cations
Clause in Article I, 11; and,
VI. impedes the ability of voters to engage in political expression and speech, in violation
of their Right ofAssembly and Petition and Freedom of Speech as afforded by Article
I, 12 and 14.

(Compl at 45-52)

Plaintiffs alleged that they challenge the Act "both on its face and as-applied to Plaintiffs and
those similarly situated North Carolina-quali?ed, registered voters that lack acceptable 
(Compl at 52-53) On the cover page of the Complaint, Plaintiffs requested assignment of the case
to a three-judge panel pursuant to N.C.G.S. l-267.1. Additionally, Plaintiffs ?led a motion for

preliminary injunction on the same day they filed the Complaint.

On January 22, 2019, the Legislative Defendants filed their Motion to Dismiss pursuant to
Rules 12(b)(l) and 12(b)(6) ofthe North Carolina Rules of Civil Procedure. On February 21, 2019,
the State Defendants ?led their answer and to the Motion to Dismiss made pursuant to Rule
12(b)(6) of the North Carolina Rules of Civil Procedure. Legislative Defendants argue that

Plaintiffs? claims fail on the merits, and that, contrary to Plaintiffs? assertions, the vast majority of

those challenges are as applied rather than facial challenges to SB. 824 and focus on the law?s
application to certain subsets of voters, such as those who do not currently possess a form of voter
ID recognized by the statute. In particular, Legislative Defendants direct this Court?s attention to
Claims II through VI in Plaintiffs? Complaint and contend that this Court must resolve Claims 11
through VI before transferring Claim I to a three-judge panel and granting Plaintiff 3 Motion to
Transfer.

Additionally, Legislative defendants contend that insufficient facts have been alleged to
support certain claims and Plaintiffs should not be allowed to proceed on these claims in part under
Legislative Defendants Motion pursuant to 

1. Legislative Defendants argue that the Court must dismiss Claim I to the extent that it
purports to state claims on behalf of Native Americans because no Plaintiff has alleged
that he or she is Native American.

2. In Claim II, Legislative Defendants argue that Plaintiffs? allegations of ?longer lines?
and ?undue delay? are not concrete and that the terms are vague and undefined?and
do not invoke legally protected interests. Legislative Defendants argue the court must
dismiss a ?portion of? Plaintiffs? second claim for relief, because the allegations in the
Complaint that voters will be unduly burdened are too speculative. (Leg. Defs.? Br. 19~
20.)

3. Legislative Defendants additionally contend that the Court must dismiss the portion of
Claim that purports to bring a claim on behalf of voters under sixty-?ve for lack of
subject matter jurisdiction, because no Plaintiff has standing to bring this claim.
Legislative Defendants argue that Plaintiffs? Count 111 claim that SB. 824 draws
impermissible classifications between younger and older voters, must be dismissed
either because Plaintiffs under 65 have suffered no injury in fact, or because their

claims are not yet ripe.

On February 7, 2019, all parties were informed by the Wake County Trial Court
Administrator of the necessity to provide information regarding the case and to complete a Status
Request addressing assignment to a three-judge panel pursuant to Wake County?s internal
procedures. On February 12, following a request from the Trial Court Administrator, the parties

filed a Joint Status Report, in which the parties addressed whether this Court must review and

resolve any as-applied challenge before transferring the matter to a three-judge panel. See Parties?

Joint Status Report at 2?9.

ANALYSIS:

MOTION TO TRANSFER

. ?It has long been understood that it is the duty of the courts to determine the meaning of the
requirements of our Constitution.? See, e. Mitchell v. NC. Indus. Dev. in. Auth, 273
NC. 137, 144, 159 745, 750 (1968); Exparte Schenck, 65 NC. 353, 367 (1871); Bayard
v. Singleton, 1 NC. 5, 6-7 (1787).

?When a government action is challenged as unconstitutional, the courts have a duty to determine
whether that action exceeds constitutional limits.? See Maready v. City of Winston-Salem, 342
NC. 708, 716, 467 615, 620 (1996)

. ?An individual challenging the facial constitutionality of a legislative act ?must establish that no
set of circumstances exists under which the act would be valid." Salerno, 481 US. at 745, 95 L.
Ed. 2d at 707. The fact that a statute "might operate unconstitutionally under some conceivable set

of circumstances is insuf?cient to render it wholly invalid.? State v. Thompson, 349 NC. 483

In addressing facial challenges to the validity of an act of the NC. General Assembly, the relevant
text Civ. P. 42(b)(4) provides that:
?Pursuant to GS. 1-267.1, any facial challenge to the validity of an act of the
General Assembly . . . . shall be heard by a three?judge panel in the Superior Court
of Wake County if a claimant raises such a challenge in the claimant's complaint or
amended complaint 
The North Carolina Supreme Court has provided clear guidance on analyzing statutory language.
?When the language of a statute is clear and without ambiguity, it is the duty of this Court to give
effect to the plain meaning of the statue, and judicial construction of legislative intent is not
required.? In re R.L.C., 361 NC. 287, 292, 643 920, 923 (2007).
. This Court determines that the plain and unambiguous meaning of the term ?raises? is ?initiates.?
Plaintiffs raise a facial challenge in the Complaint as to each claim.
Plaintiffs have chosen to label their challenges to the Act as both facial and as-applied. However,

rather than solely asking the Court to prevent application of ?the Act? to themselves, Plaintiffs

10.

11.

12.

13.

seek a statewide injunction to allow all "qualified, registered voters without acceptable photo ID
at the polls to cast regular ballots.? (Compl at 53)

As part of the Joint Status Report submitted on February 12, 2019, Plaintiffs indicated that they
"pleaded this action as a facial challenge to the constitutionality of Senate Bill 824, S.L. 201 8-144,
under several different provisions of the North Carolina Constitution. See Pls.? Compl. ?l 
(Joint Status Report at 2)

A facial challenge asserts that an enacted statute ?on its face" contravenes a provision of the: North
Carolina Constitution. NC. State Bd. ofEduc. v. State, 371 NC. 170, 190, 814 67, 80
(2018) (holding that ?the enactment of Session Law 2016-126 does not, at least on its face,
contravene the Constitution of North Carolina).

Plaintiffs here have pleaded that SB 824 is unconstitutional because it

I. "purposefully discriminates" against minority voters, (Compl at 45 11 174);
II. "creates an undue burden on the fundamental right to vote," (Compl at 48 11 183);
treats "persons similarly situated differently with reSpect to the exercise of their
fundamental right to vote,? (Compl at 48 185);
IV. "imposes on voters costs" violating the Free Elections Clause, (Compl at 50 11 190? 191);
V. subjects voters to ?an unconstitutional property (Compl at 51 11 196); and
VI. violates constitutional free speech guarantee of minority and young voters, (Compl at 52
1111200-201).
The nature and the breadth of these challenges, each of which seeks invalidation of SB 824 in its
entirety, strongly indicates that Plaintiffs' action is a facial challenge.
challenges represents a plaintiff?s protest against how a statute was applied in the
particular context in which plaintiff acted or proposed to act, while a facial challenge represents a
plaintiff?s contention that a statute is incapable of constitutional application in any context." Town
ofBeech Mt. v. Genesis Wildlifo Sanctuary, Inc, 247 NC. 786 335,347
(2016), affd per curiam, 369 NC. 722,799 61 1 (2017) (citing Frye v. City ofKannapolis,
109 F. Supp. 2d 436, 439 (M.D.N.C. 1999)).
"Generally, as-applied challenges question the manner with which a defendant may apply the
otherwise constitutional statute, to the claimant?s constitutional rights. See Id. (citing Cornell Cos.,
Inc. v. Borough ofNew Morgan, 512 F. Supp. 2d 238, 256 (ED. Pa.2007)). Here, Plaintiffs neither

allege that SB 824 is constitutional under some circumstances, nor argue that they only challenge

the application of SB 824 to themselves.

14. Although denominated, in part, as an "as-applied" challenge, Plaintiffs attack SB 824's application
not only to themselves, but to all similarly situated voters who lack acceptable photo ID. (Compl
at 53)

15. Although these claims include both a facial and an as applied challenge, each must be referred to

a three-judge panel for consideration.

MOTION TO DISMISS PURSUANT TO 12(b)(1)
CLAIM I

16. court must dismiss a claim under Rule 12(b)(1) when the court ?[l]ack[s] . . .jurisdiction over
the subject matter,? N.C. R. CIV. P. including when the plaintiffs lack standing or the
issues are not ripe for review. ?As the party invoking jurisdiction, plaintiffs have the burden of
proving the elements of standing.? Neuse River Found, Inc. v. Smith?eld Foods, Inc, 574 
48, 51 (NC. Ct. App. 2002); see Manger v. State, 689 230, 235 (NC. Ct. App. 2010).

7. ?The general rule is that ?a person who is seeking to raise the question as to the validity of a
discriminatory statute has no standing for that purpose unless he belongs to the class which is
prejudiced by the statute.? 16 Am. Jur. 2d, Constitutional Law, 123 (1964). One recognized
exception to this rule allows an affected party to allege discrimination when no member of a class
subject to the alleged discrimination is in a position to raise the constitutional question.? In re
Appeal ofMartz'n, 286 NC. 66, 75, 209 766, 773 (1974) citing Quong Ham Wah Co. v.
[ndustrz'alAca Com, 184 Cal. 26, 192 P. 1021 (1920), writ dismissed, 255 US 445, 65 723,
41 373 (1921); cf State v. Mems, supra.

18. Here, ?[o]nly injunctive relief is sought, and for that only one plaintiff with standing is required.?
Crawford v. Marion County Election Bd., 553 US. 181

19. The absence from the Complaint of an American-Indian plaintiff does not bar Plaintiffs from
pursuing their claim in Count I that SB. 824 intentionally discriminates against African-American
and American-Indian voters.

CLAIM II

20. ?The Supreme Court has rejected the argument that an injury must be ?signi?cant? a small injury,

?an identi?able tri?e,? is suf?cient to confer standing. United States v. Students Challenging

21.

22.

23.

24.

25.

Regulatory Agency Procedures (SCRAP), 412 US. 669, 689 n.14, 93 S. Ct. 2405, 2417 n-14, 37
L. Ed. 2d 254 (1973).

Long lines and undue delay caused by the implementation ofSB 824 are facts alleged by Plaintiffs
as part of a claim that Plaintiffs ultimately will have the opportunity and burden to prove; they

form no free-standing ?portion? ofa claim that can be dismissed under Rule 

CLAIM 

The NC. Supreme Court analyzed the question of standing in Stanley v. Department of
Conservation and Dev, 284 NC. 15, 199 641 (1973). The Court stated:

?Under our decisions ?[o]nly those persons may call into question the validity of a
statute who have been injuriously affected thereby in their persons, property or
constitutional rights.? . . . The rationale of this rule is that only one with a genuine
grievance, one personally injured by a statute, can be trusted to battle the issue. ?The
'gist of the question of standing? is whether the party seeking relief has 'alleged such a
personal stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentations of issues upon which the court so largely depends
for illumination of difficult constitutional questions.?

party who is not personally injured by a statute is not permitted to assail its validity;"
Yarborough v. Park Commission, 196 NC. 284, 288, 145 SE. 563.
Four of the Plaintiffs in this case (Plaintiffs Holmes, Smith, Peay, and Brown) have alleged that
they are under sixty-?ve. (Compl. 10, 18, 20, 23.) None of them have alleged that they possess
an in-state ID that has been expired for over a year?and thus would qualify them to vote if they
were sixty-five or older. None of them have alleged that they possess an in-state ID that has been
expired for over a year?and thus would qualify them to vote if they were sixty-five or older.
The Court considers as suggestive authority Northeast Ohio Coalition for the Homeless v. Brunner,
652 F. Supp. 2d 871, in its discussion of Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th
Cir. 2009). In Northeast, the court directed that:

?to demonstrate standing [Plaintiffs] had to plead or otherwise to establish that at least

one of their members fell within the category of voters who were potentially affected

by the alleged lack of uniformity. . . Plaintiffs had not ?identi?ed any of their members

who would be affected by the disparate identi?cation [requirements] of the Voter ID

Law? . . . [and] had not claimed ?that any of their members would have attempted to
use any of the categories of identification that were alleged to be de?ned [as unequal.]?

26.

27.

When plaintiffs ?[fail] to allege or show that any of their members [fall] within the category of
voters who [are] potentially affected by the alleged lack of uniformity. . . [T]he Court's dismissal
for lack of standing [is] proper.? ?Even assuming (without deciding) that [the allegation] causes
injury . . . [Plaintiffs] have pointed to no evidence tending to show that they have suffered that
injury.? United States v. Hays, 515 US 737, 745, 115 S. Ct. 2431, 132 L. Ed. 2d 635 (1995)

The Court thus must dismiss this claim because no Plaintiff has personally been injured by this

provision or is a member of an injured under-sixty-?ve classification.

BASED UPON THE FOREGOING, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that:

1. Legislative Defendants Motion to Dismiss pursuant to 12(b)(1) as to Claims I be DENIED.
2. Legislative Defendants Motion to Dismiss pursuant to 12(b)(1) as to Claims II be DENIED

3. Legislative Defendants Motion to Dismiss pursuant to 12(b)(1) as to Claims 1111 be
GRANTED.

4. Plaintiffs? Motion to Transfer is GRANTED.
5. Legislative Defendants? Motion to Dismiss pursuant to 12(b)(6) shall be heard by the

assigned three-j udge panel.

so ORDERERED, this the 12th day of March, 2019.



Vince M. Rozier, Jr.
Superior Court Judge Presiding