IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA Civil Action No.: 2:19-CV-37 BILLY JOE BREWSTER, JR., LARRY E. NORMAN, and THOMAS L. HILL, on behalf of themselves and others similarly situated, Plaintiffs, v. PHILLIP E. BERGER, in his official capacity as Speaker Pro Tempore of the North Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives, DAMON CIRCOSTA. STELLA ANDERSON, JEFF CARMON III, DAVID C. BLACK , KEN RAYMOND AND KAREN BRINSON BELL, in their official capacities as officers or members of the North Carolina State Board of Elections, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) COMPLAINT FOR DECLARATORY RELIEF, INJUNCTION, AND FOR ATTORNEY FEES FOR VIOLATION OF CIVIL RIGHTS UNDER SECTION 1983 NOW COME the Plaintiffs, by and through undersigned counsel, and complaining of Defendants, do hereby allege as follows: INTRODUCTION This is a complaint for declaratory and injunctive relief under Section 1983 of the Civil Rights Act of 1964 for violation of the right to vote and participate in an electoral structure to protect the integrity of the election process. The Plaintiffs are voters and a Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 1 of 25 candidate in the upcoming primary elections for congress in North Carolina. North Carolina voters have been subjected to a decade of lawsuits regarding their election districts. This litigation has instituted a dizzying array of actual and threatened lastminute changes to the election process. (A listing of the cases is provided below.) In the elections of 2016, a three-judge panel in Greensboro in Harris vs. McCrory, 159 F. Supp. 3rd 600 (MDNC, 2016) required the North Carolina General Assembly to redraft the congressional districts for the 2016 Congressional Elections. This remedial action led to the passage of Session Law 2016-1 promulgating new congressional districts. Subsequently, the maps were approved and modified then used for the 2018 congressional elections and current congressional incumbents were elected under these maps. In Common Cause vs. Rucho, (No. 18-422, 588 U.S. ___, 139 S.Ct. 2484 (2019)). Plaintiffs brought a political gerrymandering case claim challenging the congressional districts under novel political science theories regarding “fairness” of the congressional districts. However, on June 30, 2019, the United States Supreme Court held such claims to be non-justiciable and rejected the novel political science theories advanced therein and adopted by the district court as a justiciable ground for federal equal protection challenges. On November 18, 2018, in Common Cause vs Lewis (18 CVS 14001), a different set of voters filed a state action challenging only state legislative districts against the defendant Board and the State Legislature using substantially similar political science theories rejected by the Supreme Court in Rucho, claiming the Constitution of North Carolina permitted such claims and theories. These theories were successful and resulted in a judgment issued on September 3, 2019 in which the North 2 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 2 of 25 Carolina Legislature redrew state legislative districts to eliminate partisan gerrymandering. On September 27, 2019, new plaintiffs have filed a state constitutional political gerrymandering claim to the districts drawn as a remedy provided to the plaintiffs in Harris vs Lewis (19 CVS 12667). A preliminary injunction has been entered forbidding the State Board or the Legislative Defendants to use the 2016 plan for elections in 2018. (A copy of the Preliminary Injunction is attached hereto as Exhibit 1 and incorporated herein as if fully set out.) Plaintiffs and those whom they associate have a right to vote for candidates for congress arising under the Article I of the United States Constitution. This right to vote is “the right to participate in an electoral structured to protect the integrity of the electoral process. Burdick vs. Takuski, 504 U.S. 428, 442 (1972). The plaintiffs, and the candidates they support, have relied upon the federal decision in Cooper vs Harris, 581 U.S. ___, 137 S. Ct. 1455 (2017), and Harris vs. McCrory, Id. to base their political associations and begin campaigns including fundraising and electioneering for congress since the elections started in 2016. The political parties for example, organize themselves based upon congressional districts which recruit candidates and fundraise for congress. Candidates, should they become congressmen, provide constituent services based upon their residences within the congressional districts so that voters can hold congressmen accountable for their actions. Candidates communicate with voters based upon voter lists which have been geocoded to reflect the congressional district in which the voter lives. Candidates have been communicating with these voters based upon these lists for many months and have 3 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 3 of 25 expended large amounts of money and resources in these communications. Voters in these districts have received these communications and have become familiar with potential candidates in their districts. Likewise, noncandidate committees have also been engaged in expenditures inside of these districts communicating directly with voters in associating specific candidates with issues which the noncandidate committees support. Thus, these parties and others, electioneer and campaign based upon the congressional maps as passed by the General Assembly in 2016. For example, Plaintiff Brewster has established a campaign committee, hired consultants, published videos solicited donations and communicated directly with identified voters within his district in his effort to become a party nominee in the March, 2020 primary. Voters receive almost all of their information regarding who the candidates are in the district and the positions associated with them from the candidates themselves and from various non-candidate committees. This direct communication with the voters relies upon an accurate list of geocoded voters within a district provided by the North Carolina State Board of Elections. Under the current schedule, and with the changes contemplated in the congressional map, the State Board will be unable to provide political organizations such a list until mere weeks before votes will begin to be received by the State Board. This is simply not an adequate amount of time in which to engage in this crucial campaign communication process. Broader based communication methods are also affected. Advertising needs to be purchased well in advance of its publication or broadcast date. As the date becomes closer, there is less advertising time and space available and it becomes more expensive. However, many of these decisions cannot be made in a timely fashion due to the fact the candidates and 4 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 4 of 25 committees are unaware of the configurations of the districts. The financial ability to communicate is also directly affected, many candidate contributions, if not most, are solicited and provided from individuals who live within the district. Contributors are less likely to contribute if they do not know whether they will be able to vote for that candidate in the upcoming election. Other contributors are more or less likely to contribute based on the perceived likelihood of the candidates’ success. Confusion as to the configuration of the districts inhibits the candidates’ ability to raise funds with which to engage in the crucial communication process. Placing this process on pause will leave far too little time for candidates and noncandidate committees to adequately communicate with the voters prior to votes being received. This effect on the candidate and noncandidate committees directly affects the rights of the individual voters. The voters have been receiving communications from these committees for some months now based upon the current configurations of the congressional districts. The voters have identified candidates who they support or are considering supporting, who they believe are running in the districts in which they vote. They have identified these candidates in large part based upon what they perceive as candidate support of issues which the voter also supports. These decisions by the voters are largely based upon the communications they have received from the candidate and noncandidate committees. Moving blocks of voters from districts where they have already received substantial amounts of communication from candidate and noncandidate committees will significantly confuse the voters particularly when they are essentially denied that same level of communication regarding the candidates and issues in the new 5 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 5 of 25 districts to which they are moved. This is the essence of voter confusion and can only be eliminated by maintaining the stability of the election process in the period immediately preceding an election. Ironically, the North Carolina Supreme Court has already recognized this factual predicate in Pender County v. Bartlett, 361 N.C. 491, 510 (2007) “We also realize that candidates have been preparing for the 2008 election in reliance upon the districts as presently drawn. Accordingly, to minimize disruption to the ongoing election cycle, the remedy explained above shall be stayed until after the 2008 election.” This decision by the North Carolina Supreme Court was determined over seven months prior to the scheduled primary election not mere weeks as is the case here. The United States Constitution Article I, Section 4 grants to the state legislatures the power to establish the time, manner and place of elections, which the state legislature has done in passing Session Law 2018-21 to change the primary dates for elections as March 3, 2020 and the filing deadlines beginning on December 2, 2019 and ending on December 20, 2019. Early voting and the first ballots cast will begin on January 13, 2020. Furthermore, the North Carolina Board of Elections has previously stated that it must have final redistricting maps prior to December 5, 2019 in order to have the ability to properly geocode voters into their districts prior to January 13, 2020. The United States Supreme Court has recognized in Purcell vs. Gonzales, 549 U.S. 1 (2006), the principle that late changes to the election process will, at a certain point, rise to a level that the confusion engendered will violate the voters and candidates rights assured under the due process and equal protection clauses as well as the First Amendment of the United States Constitution. Plaintiffs assert that in North Carolina this point has already 6 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 6 of 25 been passed and request the court issue a declaratory judgment to protect the integrity of the electoral process and to enjoin the defendants from making any significant changes to the election procedures which fails to comport with this federal standard. PARTIES 1. Plaintiff Larry E. Norman is a registered voter who regularly participates in primary and general elections, donates to political candidates and associates with others to support and Campaign for candidates for the Congress of the United States from North Carolina. Mr. Norman resides in the Eastern District of North Carolina in Nash County and is an attorney licensed to practice law in the State of North Carolina. Mr. Norman resides in the Eastern District of North Carolina. 2. Billy Joe Brewster, Jr. is a registered voter who regularly participates in primary and general elections, donates to political candidates and associates with others to support and campaign for candidates for the Congress of the United States from North Carolina. He is an announced candidate for election to Congress in the 12 th Congressional District and plans to file for this office on or about December 2, 2019, when the filing period opens and to run in the primary elections to be held in March 2020. 3. Plaintiff Thomas L. Hill is a registered voter who regularly participates in primary and general elections, donates to political candidates and associates with others to support and campaign for candidates for the Congress of 7 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 7 of 25 the United States from North Carolina. Mr. Hill resides in the Eastern District of North Carolina. 4. The Plaintiffs bring this complaint on behalf of themselves and those residents, voters and taxpayers that associate with them and are similarly situated and those persons who exercise their rights to free speech, right to petition, right to enjoy open courts and otherwise associate with them to elect candidate for congress and other officials. 5. Defendant Timothy K. Moore is the Speaker of the North Carolina House of Representatives. Defendant Moore is sued in his official capacity only. 6. Defendant Philip E. Berger is the President Pro Tempore of the North Carolina Senate. Defendant Berger is sued in his official capacity only. 7. Defendant Damon Circosta is the Chairman of the State Board of Elections (hereinafter “State Board”) and is sued in his official capacity only. 8. Defendants Stella Anderson, Jeff Carmon III, David C. Black and Ken Raymond are members of the State Board and are sued in their official capacity only. 9. Defendant Karen Brinson Bell is the executive director of the State Board and is sued in her official capacity only. 8 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 8 of 25 10. Josh Stein is the Attorney General of North Carolina and is not a defendant but is being served to give notice of this civil action pursuant to federal law. 11. The North Carolina State Board of Elections is an independent agency of the State of North Carolina and it and its officials are responsible for conducting elections throughout North Carolina, including for the election to Congress. Its principal office is in Wake County, North Carolina 12. No Plaintiff in this action has been a party in any of the matters previously decided by state or federal courts and their specific, individualized interests in the integrity of the elections were not adequately addressed in the current state litigation. Plaintiffs make no claim that the current redistricting plan as enacted by the General Assembly is unconstitutional. JURISDICTION 13. This action in part arises under the Elections Clause of Article II and the First, Fifth and Fourteenth Amendments to the United States Constitution, the Federal Declaratory Judgment Act, 42 U.S.C. Section 1983 and the All Writs Act, 28 U.S.C. Section 1651, 14. This court has jurisdiction over this action pursuant to 28 U.S.C. Sections 1331, 1243(a)(3), 1357 and 1367. 15. This court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. Sections 2201 and 2202. 9 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 9 of 25 16. Venue in this district is proper pursuant to 28 U.S.C. Section 1391(b). 17. This matter involves an actual case or controversy arising under federal law and the United States Constitution as set forth below. 18. Defendant does not possess immunity under the Eleventh Amendment of the United States Constitution because of its direct role in enforcing the election laws of North Carolina. 19. This matter is timely and ripe for determination in that the filing for election is less than 40 days away and is necessary to allow an orderly election process. Crucial electoral decisions of potential contestants and voters including the Plaintiffs and those similarly situated have to be made in the next few weeks. Unless this court intervenes these decisions will be required to be made with inadequate information which will degrade the electoral process in violation of the Plaintiffs and those similarly situated constitutional rights under the First and Fourteenth Amendments. These decisions will need to be made by candidates with respect to the December filing of notices of candidacy, as well as by voters for the election to be conducted from January 13 to March 3 of 2020. Intervention to prevent violation of civil rights actions are an expressly authorized exception to the Anti-Injunction Act, 38 U.S.C. Section 2283. 20. The Plaintiffs are electors in North Carolina federal elections and have standing to bring this action on behalf of themselves and similarly situated 10 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 10 of 25 citizens. They and those similarly situated are personally aggrieved by any changes at this late date in at least one of the following ways: A. Abridging the Plaintiffs the right to vote by creating an election structure which does not insure electoral integrity. B. Abridging Plaintiffs right to free speech and associate by so shortening the campaign times available that candidates and others do not have sufficient time to campaign and fundraise or to effectively communicate with the voters. C. Abridging the Plaintiffs right to free speech and association by so shortening the campaign times available that voters are unable receive adequate information based on a reasonable opportunity to communicate so as to make an informed choice in the casting of their ballot. D. Violating voters and potential candidates rights to equal protection by being moved from their current districts to districts where they have no familiarity with the candidates and potential candidates within that district, these voters are at a substantial disadvantage to those voters who have remained in the district and have a more complete opportunity to identify and communicate with candidates and issuebased committees regarding the candidates and their new districts. 11 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 11 of 25 E. Abridging minimum electoral due process to candidates, parties, and the public so that the voters will have adequate notice of when the actual elections process will begin. F. Impairing the ability of candidates to raise funds when districts are uncertain and donors cannot assess a candidates’ chances of election. FACTS History of Recent Election Litigation in North Carolina 2010 to 2019 21. Following the return of the 2010 decennial census, the North Carolina Legislature enacted Session Law 2011- 40, known as the “Rucho-Lewis Congress 3” plan. This plan was used in the 2012 and 2014 elections to congress. Following its enactment, this plan and successive plans have been the subject of state and federal litigation set forth hereinafter. Dickson vs Rucho 22. On 3 November 2011, Margaret Dickson and forty-five other registered voters filed a complaint, asking the state courts to declare Rucho-Lewis Congress Plan 3 invalid on both constitutional and statutory grounds. On 4 November 2011, the North Carolina State Conference of Branches of the NAACP and others filed a complaint seeking similar relief, subsequently a panel of three superior court judges convened to hear these actions, pursuant to N.C.G.S. § 1267.1. On 19 December 2011, the three-judge panel ("the trial court") consolidated these cases. Throughout the Dickson case, Plaintiffs contended North Carolina was afflicted with legally significant racially polarized voting 12 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 12 of 25 and the state court so found. This case is hereinafter referred to as Dickson vs. Rucho litigation. 23. The election of congress in November 2012 was held using the Rucho- Lewis Congress 3 redistricting plan. 24. Dickson vs Rucho was tried on June 4 and 5, 2013, and subsequently on 8 July 2013, the trial court issued its unanimous "Judgment and Memorandum of Decision" denying plaintiffs' relief. Plaintiffs appealed and the North Carolina Supreme Court. 25. The election of congress in November 2014 was held using the Rucho- Lewis Congress 3 Plan. 26. The North Carolina Supreme Court affirmed the judgment of the three- judge panel's ruling. Dickson v. Rucho, 367 N.C. 542, 766 S.E.2d 238 (2014). 27. The plaintiffs appealed the state supreme court’s ruling to the U.S. Supreme Court, the Supreme Court vacated the North Carolina Supreme Court's opinion and remanded the case to the North Carolina Supreme Court for further consideration in light of its recent decision in Alabama Legislative Black Caucus v. Alabama, ___ U.S. ___, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015) (Alabama). Dickson v. Rucho, ___ U.S. ___, 135 S.Ct. 1843, 191 L.Ed.2d 719 (2015) (mem.). On remand, North Carolina’s Supreme Court again affirmed the trial court’s rulings, Dickson v. Rucho, 781 S.E.2d 404 (2015). 13 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 13 of 25 28. The Plaintiffs again filed for certiorari which was granted and subsequently, the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Cooper v. Harris, 581 U.S. ___ (2017). 29. On February 11, 2018, the Wake County state three judge panel entered a judgment in the case stating that challenged districts in the 2011 congressional and legislative plan were unconstitutional but holding that no further remedy could be offered by the court since the 2011 maps had already been redrawn. The court declared all of the plaintiffs’ remaining claims moot. Harris vs McCrory 30. Concurrently with the Dickson case, Plaintiffs David Harris and others brought a federal court action on October 24, 2013, alleging, among other things, that North Carolina used the VRA’s section 5 preclearance requirements as a pretext to pack African–American voters into North Carolina’s Congressional Districts 1 and 12, and reduce those voters' influence in other districts. Plaintiffs sought to enjoin the State from conducting elections for the U.S. House of Representatives based on the 2011 enacted First and Twelfth Congressional Districts. Id. at 19. A three-judge panel was appointed and after a three-day bench trial which began on October 13, 2015, the court found for the plaintiffs. Plaintiffs in Harris asserted and the court found there was no legally significant racially polarized voting. 14 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 14 of 25 31. On February 5, 2016, the plan struck down the 2011 Plan as racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause. See Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016). 32. The 2016 remedial plan was not used until the election of 2018. 33. Following the courts order the General Assembly enacted on February 19, 2016, Session Law 2016-1 a contingency plan pending the States appeal of the three judge panel’s decision. Probable jurisdiction was noted in June 2016, and argument was heard in the United States Supreme Court on December 5, 2016. Covington v North Carolina 34. In a lawsuit filed in May 2015, thirty-one North Carolina voters sued the state board of elections, contending that Republican lawmakers had packed AfricanAmerican voters into nine Senate districts and 19 House districts in violation of the Equal Protection Clause of the Fourteenth Amendment. In August 2016, the panel unanimously agreed with the plaintiffs and entered its opinion in Covington vs North Carolina, 283 F.Supp.3d 410 (M.D.N.C. 2016). Plaintiffs argued and the court held there was no legally significant racially polarized voting. 35. Subsequent the State appealed the panel’s ruling to the U.S. Supreme Court, arguing that the legislature drew the districts to avoid violating the Voting Rights Act. While the lawmakers’ appeal to the Supreme Court was pending, the panel ordered the General Assembly to create a remedial state house map by March 15, 2017, and to hold a special election in fall 2017 using the new districts. The state petitioned the 15 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 15 of 25 Supreme Court to stay the district court’s remedy pending the resolution of the state’s earlier appeal. The Court granted the stay, issuing an order temporarily blocking the lower court’s remedial order and putting the 2017 special elections on hold. North Carolina vs Covington 138 S. Ct 974, 200 L.Ed.2d 216 (2018). 36. On June 5, 2017, the Supreme Court summarily affirmed the decision of the trial court. The Court also vacated the order staying implementation of a remedy and 2017 special elections, with instructions to the trial court to re-weigh the balance of equities in determining whether special elections in 2017 were appropriate. On June 28, the Supreme Court affirmed in part the lower court’s order, 37. upholding changes made to remedy racial gerrymandering but reversing the changes made to two state districts redrawn by the legislature in other parts of the state. Covington vs North Carolina, 138 S.Ct. 2548, 201 L.E.d2d 993 (2018). Rucho vs Common Cause 38. On August 5, 2016 plaintiffs filed a “political gerrymandering claim” in federal court asserting North Carolina’s remedial 2016 congressional map – adopted by the North Carolina legislature after the previous map was struck down as a racial gerrymander. The plaintiffs argue that the remedial map favored some voters and penalized others for their political party memberships and affiliations, thereby affecting the state government’s ability to maintain political neutrality when distributing political representation and power. 16 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 16 of 25 39. On January 9, 2018, the court struck down the map as an unconstitutional partisan gerrymander and blocked the state from using the plan for future elections. The court directed that the North Carolina legislature be given until January 24 to adopt a remedial plan and directed that any such plan be filed with the court by January 29. Because of upcoming election deadlines, the court also ordered that the parties propose special masters to redraw the map in the event the court rejects any legislatively enacted remedial map. 40. On January 11, the legislative defendants filed an emergency motion to stay the remedial map drawing process pending the Supreme Court’s decisions in Gill v. Whitford and Benisek v. Lamone. On January 16, the district court denied the defendants’ emergency motion to stay. 41. On January 12, the legislative defendants filed an emergency application with the Supreme Court asking the court to stay proceedings at the district court pending appeal. 42. On January 18, the 3 judge panel issued an order staying the its decision, including the remedial map process, pending appeal. 43. On June 25, the United States Supreme Court vacated and remanded the three judge panel’s decision on the merits for further consideration in light of Gill v. Whitford. 17 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 17 of 25 44. On August 27, the three-judge panel issued a new opinion, ruling for the plaintiffs on all of their claims: the 14th Amendment Equal Protection Clause, the First Amendment, and Article I of the Constitution. 45. On August 31, the legislative defendants filed a motion to stay the opinion pending Supreme Court review. On September 12, the panel granted that motion. 46. On January 4, 2019, the Supreme Court agreed to hear the legislative defendants' appeal. The Court heard oral argument on March 26. 47. On June 27, 2019, in Rucho vs. Common Cause, Id. the Court vacated the decision below and remanded the case for dismissal, holding that partisan gerrymandering claims are nonjusticiable. 48. On September 5, 2019, the court dismissed the case for lack of jurisdiction. Common Cause vs Lewis 49. Common Cause, the North Carolina Democratic Party, and a group of voters filed a lawsuit on November 13, 2018, in North Carolina Superior Court, challenging the state's legislative maps on partisan gerrymandering grounds. The legislature drew these maps in 2017 after the federal courts—in Covington v. North Carolina—threw out the prior plans for racial gerrymandering. According to the plaintiffs, the Republican legislative leadership created the 2017 plans to entrench lasting Republican majorities. The plaintiffs contended that the new plans violate several 18 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 18 of 25 provisions of North Carolina’s constitution: the Equal Protection Clause; the Free Elections Clause; and the Freedom of Speech and Freedom of Assembly Clauses. 50. Trial took place from July 15 to 26. On September 3, 2019, the state court struck down the maps as unconstitutional and enjoined their use in future elections. The court ordered the North Carolina General Assembly to redraw the maps by September 19. The General Assembly submitted maps to the court, and on September 27, plaintiffs filed objections to the proposed remedial house plan. The court on the court approved the remedial plans on October 39, 2019. Harper vs Lewis 51. On September 27, 2019, Fourteen North Carolina voters filed a lawsuit in state court challenging North Carolina’s current 2016 congressional map on partisan gerrymandering grounds following the theories affirmed by the trial court in Common Cause vs. Lewis. The 2016 map, argue plaintiffs, was drawn with express intent to maximize and entrench Republican party advantage in the state’s congressional delegation. The plaintiffs contend that the 2016 remedial congressional map violates several provisions of North Carolina’s constitution: the Free Elections Clause; the Equal Protection Clause; and the Freedom of Speech and Freedom of Assembly Clauses. 52. The plaintiffs are asking the court to declare the map unconstitutional under the North Carolina Constitution and to enjoin the state from using the current map in any further elections. The plaintiffs are also asking the court to order the state to adopt a new plan that complies with the North Carolina Constitution. 19 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 19 of 25 53. On October 9, three Republican members of the North Carolina congressional delegation filed a motion to intervene as defendants. 54. On October 14, the defendants removed the case from state court to a federal district court. 55. On October 22, the district court ordered the case be remanded. 56. On October 24, the state court granted the congressional motion to intervene. 57. On October 28, the panel granted the plaintiffs’ motion for preliminary injunction, preventing the use of the 2016 plan in upcoming elections, pending the ultimate resolution of the lawsuit. (See Exhibit 1.) The state court’s decision in granting the preliminary injunction was over the objections of the State Legislative Defendants raising issues of laches, timeliness, and prior opportunity to raise this issue before September 27, 2019. 58. On information and belief, it is alleged at the present time, the North Carolina General Assembly is meeting to consider whether to appeal the decision regarding the trial court’s preliminary injunction decision or to draw a new congressional plan. 59. During the hearings on the motion for preliminary injunctions, the trial court received an affidavit from the Executive Director of the State Board of Elections outling the time line needed for any new plan to be incorporated into the administrative 20 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 20 of 25 process necessary for voters to participate in the currently scheduled filing period and primary elections. (A copy of this affidavit is attached hereto and incorporated herein as Exhibit 2.) COUNT I CONSTITUTIONAL INFRINGEMENT 60. Plaintiffs allege and incorporate the foregoing paragraphs of this Complaint as if fully set forth herein. 61. In anticipation of the 2020 congressional elections being conducted using existing congressional maps, Plaintiff Brewster in January 2019, began a campaign for congress under the existing 12 th Congressional District. 62. Plaintiff Brewster’s campaign activities include, personally soliciting voters, conducted meet and greets and coffees with voters, establishing a campaign webpage, hiring a political and media consultant, starting a facebook page and other social media to contact voters in the Charlotte area. 63. Plaintiff Brewster is not an incumbent congressman and has fewer financial resources than the incumbent congresswoman to electioneer and campaign. His campaign will be disadvantaged by a change in the electoral districts together with a shortening of the primary or general election campaign because he must depend on his free speech rights and personal campaigning to persuade voters to vote for him. Similarly affected will be his volunteers and party supporters who must electioneer on his behalf. 21 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 21 of 25 64. Plaintiff Brewster, unlike his opponent incumbent, must rely primarily on small donations to fund his campaign. Changing or shortening the campaign period will impair the progress he has made in creating a donor base and require him to start his campaign over in a new district. Any change in the geography of the districts would force him and congressional candidates similarly situated to expend significant funds in order to reach new constituents while simultaneously depriving them of the necessary time to raise. 65. Plaintiff Larry E. Norman is currently a voter in the 2nd congressional district whose congressman he has relied upon for constituent services for the past ten years .He regularly votes for and donates to his congressman and associates with others to help his re-election efforts. The district as presently composed is a swing district in which the congressman has won elections in the past but is not assured of winning in the future. The district congressman has obtained seniority in Congress on Committees which consider legislation which impact the Plaintiff and others like him and such influence will be lost if the Legislature or the courts redraws the district boundaries. 66. Defendant Hill, serves on his political party’s congressional district committee. His party organizes itself by congressional districts for purposes of its internal governance in electing members to its executive and central committees. 67. Currently Defendant Hill is a county chairman in his political party and is recruiting candidates to run against an incumbent congressman and such 22 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 22 of 25 candidates will need to know the names addresses and voting history of the voters in order to conduct an effective campaign and fundraising. 68. Should changes be made by the state legislature or state board of elections in the congressional districts, the costs of campaigning will rise and plaintiffs will need to employ expensive advertising to reach voters in areas which are not currently contained in their districts. Grassroots efforts including door to door canvassing, telephone banks, community coffees and precinct walks require candidates are less expensive than advertising available to incumbents. The lack of direct voter contact destroys the benefits of an electoral campaign and focuses on party affiliation rather than a comparison of the individual merits of candidates, harming democracy and placing focus on only well-funded candidates. 69. Given the possibility of state court action changing the districts, the Plaintiffs will be damaged by any delay in the current districts including the possibility of a disappointed litigant seeking appellate review, adding further confusion and uncertainty for the voters and the candidates. Furthermore, the candidates may be faced with bifurcated primaries in which fewer voters participate in the elections for congress than do in single primaries. 70. Based upon the foregoing harms, the Plaintiffs ask the court to declare the rights of the parties as follows: 23 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 23 of 25 (1) If the election cycle begins on December 2, 2020, under current state law, will any changes to the election districts necessarily violate the Constitutional rights of the Plaintiff and those similarly situated? PRAYER FOR RELIEF WHEREFORE the Plaintiffs pray the court to grant the following relief: 1. Award temporary and permanent injunctive relief enjoining the Defendants, its agents, officer and employees from enforcing implementing or giving any effort to enforce a congressional election based on a map or plan different from that currently enacted by the State Legislature. 2. Award Plaintiffs their costs, disbursement and reasonable attorneys’ fees incurred in bringing this action pursuant to 42 U.S.C. Section 1988. 3. Tax the costs of this action against Defendants; and 4. Grant such other relief as this court seems just and proper. This 31 day of October, 2019. /s/ Robert Neal Hunter, Jr. Robert Neal Hunter, Jr. (NCSB 5679) HIGGINS BENJAMIN, PLLC 301 N Elm Street, Suite 800 Greensboro, North Carolina 27401 Telephone: (336) 273-1600 Facsimile: (336) 274-4650 Email: rnhunterjr@greensborolaw.com 24 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 24 of 25 Conrad Boyd Sturges, III (NCSB 22342) DAVIS, STURGES & TOMLINSON, PLLC P.O. Drawer 708 Louisburg, NC 27549 Telephone: (919) 496-2137 Facsimile: (919) 496-6291 Email: bsturges@dstattys.com Attorneys for Plaintiffs 25 Case 2:19-cv-00037-D Document 1 Filed 10/31/19 Page 25 of 25 EXHIBIT 1 Case Document 1-1 Filed 10/31/19 Page 1 of 21 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE WAKE COUNTY SUPERIOR COURT DIVISION 19 CVS 012667 REBECCA HARPER, et al. Pla-iniif?s, v. ORDER ON INJUNCTIVE RELIEF Representative DAVID R. LEWIS, in his official capacity as Senior Chairman of the House Standing Committee on Redistricting, et 01., Defendants. THIS MATTER came on for hearing on October 24, 2019, before the undersigned three-judge panel upon Plaintiffs? Motion for Preliminary Injunction, filed September 30, 2019. All adverse parties to this action received the notice required by Rule 65 of the North Carolina Rules of Civil Procedure. Procedural On February 19, 2016, the current North Carolina congressional districts (hereinafter ?2016 congressional districts?) were established by an act of the General Assembly, N.C. Sess. Laws 2016-1 (hereinafter 2016?1?), as a result of litigation in federal court over the congressional districts originally drawn in 2011. On September 2'7, 2019, Plaintiffs filed a verified complaint in Superior Court, Wake County, seeking a declaration that the 2016 congressional districts violate the rights of Plaintiffs and all Democratic voters in North Carolina under the North Carolina Constitution?s Free Elections Clause, Art. I, 10; Equal Protection Clause, Art. I, 19; and Freedom of Speech and Freedom of Assembly Clauses, Art. I, 12 14. Plaintiffs seek to enjoin the future use of the 2016 congressional districts. On September 30, 2019, this action was assigned to the undersigned panel by the Chief Justice of the Supreme Court of North Carolina. Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 2 of 21 On September 30, 2019, Plaintiffs ?led a motion for a preliminary injunction seeking to bar Defendants from administering, preparing for, or moving forward with the 2020 primary and general elections in North Carolina for the United States House of Representatives using the 2016 congressional districts. Plaintiffs also filed a motion fo:r expedited brie?ng and resolution of Plaintiffs? motion for a preliminary injunction. On October 2, 2019, Defendants North Carolina State Board of Elections and its members (collectively hereinafter ?State Defendants?) noti?ed the Court that, among other things, candidate filing for congressional primaries is set to begin on December 2, 2019. On October 9, 2019, a motion to intervene was ?led by three incumbent Congressional Representatives seeking to intervene in this action in both their capacity as Representatives and as residents and voters in three of the congressional districts challenged in Plaintiffs? veri?ed complaint. On October 10, 2019, the Court granted in part Plaintiffs? motion for expedited brie?ng, establishing a briefing schedule on Plaintiffs motion for preliminary injunction and setting for hearing Plaintiffs? motion for preliminary injunction and the motion to intervene. On October 14, 2019, Defendants Representative David R. Lewis, Senator Ralph E. Hise, Jr., Speaker Timothy K. Moore, President Pro Tempore Philip E. Berger, Senator Warren Daniel, and Senator Paul Newton (hereinafter ?Legislative Defendants?) removed this case to the United States District Court for the Eastern District of North Carolina. On October 21, 2019, State Defendants and Legislative Defendants each ?led in federal court a brief in response to Plaintiffs? motion for preliminary injunction in accordance with the Court?s October 10, 2019 order. Plaintiffs noti?ed and provided to the Court the Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 3 of 21 Defendants? briefs on October 22, 2019, and, on the same date, the federal court remanded this case to state court. On October 22, 2019, the Congressional Representatives seeking to intervene in this case submitted a brief in response to Plaintiffs? motion for preliminary injunction. On October 23, 2019, Plaintiffs ?led a motion to strike the Congressional Representatives? response brief, the Congressional Representatives submitted a response brief to Plaintiffs? motion, and Plaintiffs submitted a brief in reply to that response brief. Additionally, on October 23, 2019, Plaintiffs submitted a brief in reply to Legislative Defendants? brief in response to Plaintiffs? motion for preliminary injunction. These matters came on to be heard on October 24, 2019, during which time the Court granted the Congressional Representatives (hereinafter ?Intervenor-Defendants?) permissive intervention and noti?ed the parties that Intervenor-Defendants? response brief would be considered by the Court in its discretion. Plaintiffs? motion for preliminary injunction was taken under advisement. The Court, having considered the pleadings, motions, briefs and arguments of the parties, supplemental materials submitted by the parties, pertinent case law, and the record proper and court file, hereby finds and concludes, for the purposes of this Order, as follows. Political (lucstinn Doctrine Legislative Defendants contend Plaintiffs? claims?challenges to the validity of an act of the General Assembly that apportions or redistricts the congressional districts of this State?present non-justiciable political questions. Such claims are within the statutorily- provided jurisdiction of this three-judge panel, .C.G.S. 1-267 .1, and the Court concludes that partisan gerrymandering claims speci?cally present justiciable issues, as Case Document 1-1 Filed 10/31/19 Page 4 of 21 distinguished from non-justiciable political questions. Such claims fall within the broad, default category of constitutional cases our courts are empowered and obliged to decide on the merits, and not within the narrow category of exceptional cases covered by the political question doctrine. Indeed, as the Supreme Court of the United States recently explained, partisan gerrymandering claims are not ?condemn[ed] . . . to echo in the void,? because although the federal courthouse doors may be closed, ?state constitutions can provide standards and guidance for state courts to apply.? Rucho U. Common Cause, 139 S. Ct. 2484, 25'07 Standing of Plaintiffs Legislative Defendants and Intervenor-Defendants contend that Plaintiffs lack standing to pursue their claims in this action. The North Carolina Constitution, howeVer, provides: ?All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.? N.C. Const. art. I, 18. ?[B]ecause North Carolina courts are not constrained by the ?case or controversy? requirement of Article of the United States Constitution, our State?s standing jurisprudence is broader than federal law.? Davis v. New Zion, Baptist Church, 811 725, 727 (NC. Ct. App. 2018) (quotation marks omitted); accord Goldsion, v. State, 361 NC. 26, 35, 637 876, 882 (2006) (?While federal standing doctrine can be instructive as to general principles . . . and for comparative analysis, the nuts and bolts of North Carolina standing doctrine are not coincident with federal standing doctrine?). Likewise, Legislative Defendants? and Intervenor-Defendants? contentions that federal law?Le, the Elections clause and Supremacy clause of the United States Constitution?serves as a bar in state court to Plaintiffs? action seeking to enjoin the 2016 congressional districts on state constitutional grounds is equally unavailing. Our state courts have jurisdiction to hear and decide claims that acts of the General Assembly apportioning or redistricting the congressional districts of this State run afoul of the North Carolina Constitution. Case Document 1-1 Filed 10/31/19 Page 5 of 21 The North Carolina Supreme Court has broadly interpreted Article I, 18 to mean that a general matter, the North Carolina Constitution confers standing on those who suffer harm.? Mangum. U. Raleigh. Bd. ofi-idjustment, 362 N.C. 640, 642, 669 279, 281 (2008). The ?gist of the question of standing? under North Carolina law 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 presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.? Goldston, 361 N.C. at 30, 637 at 879 (quoting Stanley L). Dep?t of Conservation. Dem, 284 N.C. 15, 28, 199 641, 650 (1973)). Although the North Carolina Supreme Court ?has declined to set out specific criteria necessary to show standing in every case, [it] has emphasized two factors in its cases examining standing: (1) the presence of a legally cognizable injury; and (2) a means by which the courts can remedy that injury.? Davis, 811 at 727-28. Plaintiffs in this case have standing to challenge the congressional districts at issue because Plaintiffs have shown a likelihood of ?a personal stake in the outcome of the controversy,? Goldston, 361 N.C. at 30, 637 at 879, and a likelihood that the 2016 congressional districts cause them to ?suffer harm,? Mangum, 362 N.C. at 642, 669 at 281. r?lnnlimlile Legal Htandangs At its most basic level, partisan gerrymandering is de?ned as: ?the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.? Ariz. State Legislature U. Ariz. Indep. Redistricting Comm?n, 135 S. Ct. 2652, 2658 (US. 2016). Partisan gerrymandering operates through vote dilution?the devaluation of one citizen?s vote as compared to others. A mapmaker draws district lines to Ci] Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 6 of 21 ?pack? and ?crack? voters likely to support the disfavored party. See generally Gill u. Whitford, 138 S. Ct. 1916 (2018). Plaintiffs claim the 2016 congressional districts are partisan gerrymanders that violate the rights of Plaintiffs and all Democratic voters in North Carolina under the North Carolina Constitution?s Free Elections Clause, Art. I, 10; Equal Protection Clause, Art. I, 19; and Freedom of Speech and Freedom of Assembly Clauses, Art. I, 12 14. Extreme partisan gerrymandering violates each of these provisions of the North Carolina Constitution. See Common Cause u. Lewis, 18-CVS-014001, slip. op. at 298-331 (N.C. Sup. Ct. Sept. 3, 2019). Free Elections Clause The North Carolina Constitution, in the Declaration of Rights, Article I, 10, declares that ?[a]ll elections shall be free.? Our Supreme Court has long recognized the fundamental role of the will of the people in our democratic government: ?Our government is founded on the will of the people. Their will is expressed by the ballot.? People ex rel. Van Bokkelen v. Canaday, 7 3 NC. 198, 220 (1875). In particular, our Supreme Court has directed that in construing provisions of the Constitution, ?we should keep in mind that this is a government of the people, in which the will of the people--the majority--legally expressed, must govern.? State ex rel. Quinn 1). Lattimore, 120 NC. 426, 428, 26 SE. 638, 638 (1897) (citing .C. Const. art. I, 2). Therefore, our Supreme Court continued, because elections should express the will of the people, it follows that ?all acts providing for elections, should be liberally construed, that tend to promote a fair election or expression of this popular will.? Id. air and honest elections are to prevail in this state.? McDonald 0. Morrow, 119 NC. 666, 673, 26 SE. 132, 134 (1896). Moreover, in giving meaning to the Free Elections Clause, this Court?s construction of the words contained therein must Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 7 of 21 therefore be broad to comport with the following Supreme Court mandate: ?We think the object of all elections is to ascertain, fairly and truthfully, the will of the people--the qualified voters.? Hill 0. Skinner, 169 NC. 405, 415, 86 SE. 351, 356 (1915) (quoting R- R. U. Comrs., 116 NC. 563, 568, 21 SE. 205, 207 (1895)). As such, the meaning of the Free Elections Clause is that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people. In contrast, extreme partisan gerrymandering?namely redistricting plans that entreneh politicians in power, that evince a fundamental distrust of voters by serving the self- interest of political parties over the public good, and that dilute and devalue votes of some citizens compared to others?is contrary to the fundamental right of North Carolina citizens to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people. See Common Cause, 18-CVS-014001, slip. op. at 298-307. Equal Protection Clause The Equal Protection Clause of the North Carolina Constitution guarantees to all North Carolinians that person shall be denied the equal protection of the laws." N.C. Const, art. I, 19. Our Supreme Court has held that North Carolina?s Equal Protection Clause protects ?the fundamental right of each North Carolinian to substantially equal votingpower.? Stephenson v. Bartlett, 355 NC. 3511, 379, 562 377, 394 (2002) (emphasis added). "It is well settled in this State that ?the right to vote on equal terms is a fundamental right.? Id. at 378, 562 at 393 (quoting Northampton Cnty. Drainage Dist. No. One v. Bailey, 326 NC. 742, 747, 392 352, 356 (1990) (emphasis added)). Although the North Carolina Constitution provides greater protection for voting rights than the federal Equal Protection Clause, our courts use the same test as federal courts in evaluating the constitutionality of challenged classi?cations under an equal ?1 Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 8 of 21 protection analysis. Duggins v. N. C. State Bd. of Certified Pub. Accountant Examine, 294 NC. 120, 131, 240 406, 413 (1978); Richardson U. N. C. Dep?t of Corn, 345 NC. 1 28, 134, 478 501, 505 (1996). Generally, this test has three parts: (1) intent, (2) effects, and (3) causation. First, the plaintiffs challenging a districting plan must prove that state officials? ?predominant purpose? in drawing district lines was to "entrench [their party] in power? by diluting the votes of citizens favoring their rival. Ariz. State Legis, 135 S. Ct. at 2658. Second, the plaintiffs must establish that the lines drawn in fact have the intended effect by ?substantially? diluting their votes. Common. Cause u. Rucho, 318 F. Supp. 3d 777, 861 (M.D.N.C. 2018). Finally, if the plaintiffs make those showings, the State must provide a legitimate, non-partisan justification that the impermissible intent did not cause the effect) to preserve its map. Rucho, 139 S. Ct. at 2516 (Kagan, ., dissenting). Generally, partisan gerrymandering runs afoul of the State?s obligation to provide all persons with equal protection of law because, by seeking to diminish the electoral power of supporters of a disfavored party, a partisan gerrymander treats individuals who support candidates of one political party less favorably than individuals who support candidates of another party. Cf. Lehr U. Robertson, 463 US. 248, 265, 103 S. Ct. 2985 (1983) (?The concept of equal justice under law requires the State to govern impartially?) As such, extreme partisan gerrymandering runs afoul of the North Carolina Constitution?s guarantee that no person shall be denied the equal protection of the laws. See Common. Cause, 18-CVS-014001, slip. op. at 307?17. Freedom of Speech and Freedom of Assembly Clauses The Freedom of Speech Clause in Article I, 14 of the North Carolina Constitution provides that ?[?reedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.? The Freedom of Assembly Clause in Article I, 12 Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 9 of 21 provides, in relevant part, that ?[t]he people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances.? ?There is no right more basic in our democracy than the right to participate in electing our political leaders??including, of course, the right to ?vote.? McCatcheon U. FEC, 572 US. 185, 191, 134 S. Ct. 1434, 1440 (2014) (plurality ?[P]olitical belief and association constitute the core of those activities protected by the First Amendment.? Elrod U. Burns, 427 US. 347, 356, 96 S. Ct. 2673, 2681 (1976). In North Carolina, the right to assembly encompasses the right of association. Feltman v. City of Wilson, 238 NC. App. 246, 253, 767 615, 620 (2014). Moreover, ?citizens form parties to express their political beliefs and to assist others in casting votes in alignment with those beliefs.? Libertarian Party ofN. C. v. State, 365 NC. 41, 49, 707 199, 204-05 (2011). And ?for elections to express the popular will, the right to assemble and consult for the common good must be guaranteed.? John V. Orth, The North Carolina State Constitution 48 (1995). It is ?axiomatic? that the government may not infringe on protected activity based on the individual?s viewpoint. Rosenberger U. Rector Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S. Ct. 2510, 2516 (1995). The guarantee of free expression ?stands against attempts to disfavor certain subjects or viewpoints.? Citizens United v. FEC, 558 US. 310, 340, 130 S. Ct. 876, 898 (2010). Viewpoint discrimination is most insidious where the targeted speech is political; ?in the context of political Speech, . . . [b]oth history and logic? demonstrate the perils of permitting the government to ?identif[y] certain preferred speakers? while burdening the speech of ?disfavored speakers.? Id. at 340-41, 130 S. Ct. at 899. Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 10 of 21 The government may not burden the ?speech of some elements of our society in order to enhance the relative voice of others? in electing of?cials. McCutcheon1450; see also Winborne u. Easley, 136 NC. App. 191, 198, 523 149, 154 (1999) (?political speech? has ?such a high status? that free speech protections have their ?fullest and most urgent application? in this context (quotations marks omitted)). The government also may not retaliate based on protected speech and expression. See McLaughlin, 240 NC App. at 172, 771 at 579-80. Courts carefully guard against retaliation by the party in power. See Elr?od, 427 US. at 356, 96 S. Ct. at 2681; Branti u. Finlael, 4-45 US. 507, 100 S. Ct. 1287 (1980); Rutan U. Republican. Party ofIll., 497 US. 62, 110 S. Ct. 2729 (1990). When patronage or retaliation restrains citizens? freedoms of belief and association, it is ?at war with the deeper traditions of democracy embodied in the First Amendment.? Elrod, 4-27 US. at 357, 96 S. Ct. at 2682 (quotation marks omitted). When a legislature engages in extreme partisan gerrymandering, it identifies certain preferred speakers Republican voters) while targeting certain disfavored speakers Democratic voters) because of disagreement with the views they express when they vote. Then, disfavored speakers are packed and cracked into legislative districts with the aim of diluting their votes and, in cracked districts, ensuring that these voters are significantly less likely, in comparison to favored voters, to be able to elect a candidate who shares their views. Moreover, a legislature that engages in extreme partisan gerrymandering burdens the associational rights of disfavored voters to ?instruct their representatives, and to apply to the General Assembly for redress of grievances.? N.C. Const. art. I, 12. As such, extreme partisan gerrymandering runs afoul of these important guarantees in the North Carolina Constitution of the freedom of speech and the right of the people of our State to assemble together to consult for their common good, to instruct their 10 Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 11 of 21 representatives, and to apply to the General Assembly for redress of grievances. See Common Cause, 18-CVS-014001, slip. op. at 317?31. Injunctive?l?ge?.P ?It is well settled in this State that the courts have the power, and it is their duty in proper cases, to declare an act of the General Assembly unconstitutional?but it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.? City of Asheville v. State, 369 NC. 80, 87-88, 794 759, 766 (2016) (quoting Glenn 1). Bd. ofEduc., 210 N.C. 525, 529-30, 187 SE. 781, 784 (1936)); State ex rel. Martin v. Preston, 325 NC. 438, 449, 385 473, 478 (1989). ?The purpose of a preliminary injunction is ordinarily to preserve the status quo pending trial on the merits. Its issuance is a matter of discretion to be exercised by the hearing judge after a careful balancing of the equities.? State ex rel. Edmisten v. Fayetteuille Street Christian School, 299 NC. 351, 357, 261 908, 913 (1980). A preliminary injunction is an ?extraordinary remedy? and will issue ?only (1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff's rights during the course of litigation.? A.E.P. Industries, Inc. U. McClure, 308 NC. 393, 401, 302 754, 759-60 (1983) (emphasis in original); see also N.C.G.S. 1A-1, Rule 65(b). When assessing the preliminary injunction factors, the trial judge ?should engage in a balancing process, weighing potential harm to the plaintiff if the injunction is not issued against the potential harm to the defendant if injunctive relief is granted. In effect, the harm alleged by the plaintiff must satisfy a 11 Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 12 of 21 standard of relative substantiality as well as irreparability.? Williams U. Greene, 36 NC. App. 80, 86, 243 156, 160 (1978). Status Quo The 2011 congressional districts, enacted by the General Assembly on July 28, 2011, were struck down as unconstitutional racial gerrymanders and ordered to be redrawn on February 5, 2016. See Harris 0. McCrory, 159 F. Supp. 3d 600, 627 (M.D.N.C. 2016). As a result, the 2016 congressional districts were then enacted by the General Assembly on February 19, 2016. NC. Sess. Laws 2016-1. Plaintiffs? challenge to the 2016 congressional districts is a challenge to S.L. 2016-1 as enacted; hence, the status quo which Plaintiffs desire to preserve is the existing state of affairs prior to the enactment of S.L. 2016-1. Therefore, the existing state of affairs?ale, the status quo?prior to the enactment of S.L. 2016-1 was the period in which no lawful congressional district map for North Carolina existed absent the enactment of a remedial map by the General Assembly. Plaintiffs are Likely to Succeed on the Merits Quite notably in this case, the 2016 congressional districts have already been the subject of years-long litigation in federal court arising from challenges to the districts on partisan gerrymandering grounds. See Rucho, 318 F. Supp. 3d 777. As such, there is a detailed record of both the partisan intent and the intended partisan effects of the 2016 congressional districts drawn with the aid of Dr. Thomas Hofeller and enacted by the General Assembly. See Rucha, 318 F. Supp. 3d at 803-10 (detailing the history of the drawing and enactment of the 2016 congressional districts); see also Declaration of Elisabeth S. Theodore (attaching as exhibits a number of documents from the record in federal court); Rucho, 139 S. Ct. at 2491-93. 12 Case 2:19-cv-00037-D Document 1-1 Filed 10/31/19 Page 13 of 21 For instance, Dr. Hofeller was directed by legislators ?to use political data precinct-level election results from all statewide elections, excluding presidential elections, dating back to January 1, 2008 in drawing the remedial plan,? and was further instructed to ?use that political data to draw a map that would maintain the existing partisan makeup of the state's congressional delegation, which, as elected under the racially gerrymandered plan, included 10 Republicans and 3 Democrats.? Rucho, 318 F- Supp. 3d at 805 (internal citations omitted). As another example, the redistricting committee approved several criteria for the map?drawing process, including the use of past election data (11.9., ?Political Data?) and another labeled ?Partisan Advantage,? which was defined as: ?The partisan makeup of the congressional delegation under the enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable efforts to construct districts in the 20 16 Contingent Congressional Plan to maintain the current partisan makeup of North Carolina's congressional delegation.? Id. at 807. In explaining these two criteria, Representative David Lewis ?acknowledged freely that this would be a political gerrymander,? which he ?3 maintained was ?not against the law, id. at 808 (citation omitted), while also going on to state that he ?propose[d] that [the Committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible to draw a map with 11 Republicans and 2 Democrats,? id. (alterations in original). Moreover, when drawing the 2016 congressional districts, Dr. Hofeller used ?an aggregate variable he created to predict partisan performance? all while ?constantly aware of the partisan characteristics of each county, precinct, and Id. at 805-06. Finally, the redistricting committee, and ultimately the General Assembly as a whole, approved the 2016 congressional districts by party-line vote. Id. at 809. 13 Case Document 1-1 Filed 10/31/19 Page 14 of 21 In light of the above, this Court agrees with Plaintiffs and finds there is a substantial likelihood that Plaintiffs will prevail on the merits of this action by showing beyond a reasonable doubt that the 2016 congressional districts are extreme partisan gerrymanders in violation of the North Carolina Constitution?s Free Elections Clause, Art. I, 10; Equal Protection Clause, Art. I, 19; and Freedom of Speech and Freedom of Assembly Clauses, Art. I, 12 14. Plaintiffs Will Suffer Irreparable Loss Unless the Injunction is Issued The loss to Plaintiffs? fundamental rights guaranteed by the North Carolina Constitution will undoubtedly be irreparable if congressional elections are allowed to proceed under the 2016 congressional districts. As discussed above, Plaintiffs? have shown a likelihood of succeeding on the merits of their claims that these districts violate multiple fundamental rights guaranteed by the North Carolina Constitution. And as Defendants have emphasized, the 2020 primary elections for these congressional districts?the final congressional elections of this decade before the 2020 census and subsequent decennial redistricting?are set to be held in March of 2020 with the ?ling period beginning December 2, 2019. As such, this Court ?nds that Plaintiffs are likely to sustain irreparable loss to their fundamental rights guaranteed by the North Carolina Constitution unless the injunction is issued, and likewise, issuance is necessary for the continued protection of Plaintiffs? fundamental rights guaranteed by the North Carolina Constitution during the course of the litigation; A Balancing of the Equities Weighs in Favor of Plaintiffs On one hand, Legislative Defendants contend a general harm to them will result from issuing the injunction because the General Assembly will be prevented from 14 Case Document 1-1 Filed 10/31/19 Page 15 of 21 effectuating an act of the General Assembly. On the other hand, Plaintiffs? and all North Carolinians? fundamental rights guaranteed by the North Carolina Constitution will be irreparably lost, as discussed above, if the injunction is not granted. Simply put, the people of our State will lose the opportunity to participate in congressional elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people. The Court finds that this Specific harm to Plaintiffs absent issuance of the injunction outweighs the potential harm to Legislative Defendants if the injunction is granted. Legislative Defendants and lntervenor Defendants also contend the issuance of the injunction will result in disruption, confusion, and uncertainty in the electoral process for them, candidates, election officials, and the voting public. But, again, such a proffered harm does not outweigh the specific harm to Plaintiffs from the irreparable loss of their fundamental rights guaranteed by the North Carolina Constitution. Moreover, while State Defendants would prefer not to move elections or otherwise change the current schedule for the 2020 congressional primary election, they recognize that proceeding under the 2016 congressional districts ?would require the Board to administer an election that violates the constitutional rights of North Carolina voters? and acknowledge that the election schedule can be changed if necessary. State Defs. Response Brief at 2. In that vein, State Defendants agree with Plaintiffs that ?it would be appropriate for this Court to issue an injunction that relieves the Board of any duty to administer elections using an unconstitutionally gerrymandered congressional redistricting plan.? Id. Finally, Legislative Defendants and Intervenor-Defendants contend Plaintiffs simply waited too long to bring their challenge to the 2016 congressional districts in state court. Plaintiffs, however, ?led this action in state court only a matter of months after litigation reached its conclusion in federal court, at a time still prior to the candidate filing 15 Case Document 1-1 Filed 10/31/19 Page 16 of 21 period. While the timing of Plaintiffs? action does weigh against Plaintiffs, the Court does not ?nd that the timing of Plaintiffs? filing-of this action should bar them from seeking equitable relief in the form of the requested preliminary injunction. Consequently, after weighing the potential harm to Plaintiffs if the injunction is not issued against the potential harm to Defendants if injunctive relief is granted, this Court concludes the balance of the equities weighs in Plaintiffs? favor. Indeed, the harm alleged by Plaintiffs is both substantial and irreparable should congressional elections in North Carolina proceed under the 2016 congressional districts. Conclusion Under these circumstances, the Court, in its discretion and after a careful balancing of the equities, concludes that the requested injunctive relief shall issue in regard to the 2016 congressional districts. The Court further concludes that security is required of Plaintiffs pursuant to Rule 65(0) of the North Carolina Rules of Civil Procedure to secure the payment of costs and damages in the event it is later determined this relief has been improvidently granted. This Court recognizes the significance and the urgency of the issues presented by this litigation, particularly when considering the impending 2020 congressional primary elections and all accompanying deadlines, details, and logistics. This Court also is mindful of its responsibility not to disturb an act of the General Assembly unless it plainly and clearly, without any reasonable doubt, runs counter to a constitutional limitation or prohibition. For these reasons, the Court will, upon the forthcoming filing of Plaintiffs? motion for summary judgment, provide for an expedited schedule so that Plaintiffs? dispositive motion may be heard prior to the close of the filing period for the 2020 primary election. 16 Case Document 1-1 Filed 10/31/19 Page 17 of 21 This Court observes that the consequences, as argued by Legislative Defendants and Intervenor-Defendants, resulting from a delay in the congressional primary?cg, decreased voter turnout, additional costs and labor for the State Board of Elections??would be both serious and probable should the primary schedule be adjusted as a result of this Order and Plaintiffs? ultimate success on the merits of this action. But as discussed above, should Plaintiffs prevail through motion or trial, these consequences pale in comparison to voters of our State proceeding to the polls to vote, yet again, in congressional elections administered pursuant to maps drawn in violation of the North Carolina Constitution. This Court, however, notes that these disruptions to the election process need not occur, nor may an expedited schedule for summary judgment or trial even be needed, should the General Assembly, on its own initiative, act immediately and with all due haste to enact new congressional districts. This Court does not presume, at this early stage of this litigation, to have any authority to compel the General Assembly to commence a process of enacting new Congressional districts, and this Court recognizes that such a decision is wholly within the discretion of a co-equal branch of government. The General Assembly, however, has recently shown it has the capacity to enact new legislative districts in a short amount of time in a transparent and bipartisan manner, and that the resulting legislative districts, having been approved by this Court, are districts that are more likely to achieve the constitutional objective of allowing for elections to be conducted more freely and honestly to ascertain, fairly and truthfully, the will of the people. See Common Cause Lt. Lewis, 18-CVS-014001 (N.C. Sup. Ct., October 28, 2019). The Court respectfully urges the General Assembly to adopt an expeditious process, as it did in response to this Court?s mandate in the September 3, 2019, Judgment in Common Cause U. Lewis, that ensures full transparency and allows for bipartisan participation and consensus to create new 17 Case Document 1-1 Filed 10/31/19 Page 18 of 21 congressional districts that likewise seek to achieve this fundamental constitutional objective. Accordingly, the Court, in its discretion and for good cause shown, hereby ORDERS that Plaintiffs? motion for preliminary injunction is GRANTED as follows: 1. Legislative Defendants and State Defendants, their of?cers, agents, servants, employees and attorneys and any person in active concert or participation with them are hereby enjoined from preparing for or administering the 2020 primary and general elections for congressional districts under the 2016 congressional districts established by S.L. 2016-1. 2. Security in an amount of $1,000 shall be required of Plaintiffs pursuant to Rule 65. 3. The Court retains jurisdiction to move the primary date for the congressional elections, or all of the State?s 2020 primaries, including for of?ces other than Congressional Representatives, should doing so become necessary to provide effective relief in this case. SO ORDERED, this the 28th day of October, 2019. Isl Paul C. Ridge_w_ay_ Paul C. Ridgeway, Superior Court Judge Isl Joseph N. Crosswhite Joseph N. Crosswhite, Superior Court Judge Isl Alma L. ?intgn Alma L. Hinton, Superior Court Judge 18 Case Document 1-1 Filed 10/31/19 Page 19 of 21 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the parties by emailing a copy thereof to the address below, in accordance with the October 10, 2019 Case Management Order: Burton Craige Narenda K. Ghosh Paul E. Smith PATTERSON HARKAVY LLP bcraige@pathlaw.com psmith@pathlaw.com Counsel for Plaintiffs R. Stanton Jones* Elisabeth S. Theodore? Daniel F. Jacobson? William Perdue? Sara Murphy D'Amico* Graham White* ARNOLD PORTER KAYE SCHOLER LLP Stanton.jones@arnoldporter.com Sara.DAmico@arnoldporter.com Graham.White@arnoldporter.com Counsel for Plaintiffs Phillip J. Strach Thomas A. Farr Michael McKnight Alyssa Riggins OGLETREE DEAKINS NASH SMOAK STEWART PC Phil.strach@ogletree.com Thomas.farr@ogletree.com Michael.mcknight@ogletree.com Alyssa.riggins@ogletree.com Counsel for Legislative Defendants *Admitted Pro Hac Vice 1 Case Document 1-1 Filed 10/31/19 Page 20 of 21 Amar Majmundar Stephanie A. Brennan Paul M. Cox NORTH CAROLINA DEPARTMENT OF JUSTICE amajmundar@ncdoj.gov sbrennan@ncdoj.gov pcox@ncdoj.gov Counsel for the State Board of Elections and members of the State Board of Elections Kieran l. Shanahan John E. Branch, Ill Nathaniel J. Pencook Andrew D. Brown SHANAHAN LAW GROUP PLLC kieran@shanahanlawgroup.com jbranch@shanahanlawgroup.com npencook@shanahanlawgroup.com abrown@shanahanlawgroup.com Counsel for Intervenor-Defendants This the 28th day of October, 2019. 111 1111111111 1? Trial Court Administrator 10th Judicial District kellie.z.myers@nccourts.org *Admitted Pro Hac Vice 2 Case Document 1-1 Filed 10/31/19 Page 21 of 21 EXHIBIT 2 Case Document 1-2 Filed 10/31/19 Page 1 of 21 STATE OF NORTH CAROLINA i L11- 3 IN THE GENERAL COURT OF JUSTICE r, SUPERIOR COURT DIVISION COUNTY OF WAKE . 18 cvs. 14001 COMMON CAUSE, et al., I ll Plaintiffs, NOTICE OF FILING: v. AFFIDAVIT OF KAREN BRINSON BELL REPRESENTATIVE DAVID LEWIS in his of?cial capacity as Senior Chairman of the House Select Committee on Redistricting; et al., Defendants. NOW CONIES Defendants the North Carolina State Board of Elections and its members (collectively ?State Defendants?), by and through the undersigned counsel, and hereby submit the attached Af?davit of Karen Brinson Bell in support of State Defendants? Memorandum on Election Administration and Deadlines. A copy of that Memorandum is being delivered to the Court via email to the Trial Court Administrator, pursuant to the Case Management Order in this action. Mn. Respect?ally submitted this Li? day of October, 2019. NC. DEPARTMENT OF JUSTICE gamma-W Amar Majmundar Senior Deputy Attorney General State Bar No. 24668 Stephanie A. Brennan Special Deputy Attorney General State Bar No. 35955 Paul M. Cox Special Deputy Attorney General State Bar No. 49146 Case Document 30-1 Filed 10/21/19 Page 1 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 2 of 21 North Carolina Dept. of Justice Post Of?ce Box 629 Raleigh, NC. 27602 Emails: amajmundar@ncdoj .gov sbrennan@ncdoj . gov pcox@ncdoj .gov Tel: (919) 716-6900 Fax: (919) 716-6763 Attorneys for State Defendants Case Document 30-1 Filed 10/21/19 Page 2 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 3 of 21 CERTIFICATE OF SERVICE This is to certify that the undersigned has this day served the foregoing document in the above titled action upon all parties to this cause by depositing a copy by email and addressed as follows: Edwin M. Speas, Jr. Caroline P. Mackie crnaekie @novnersn ruill .com Poyner Spruill LLP PO. Box 1801 Raleigh NC 27602-1801 Counsel for Common Cause, the North Carolina Democratic Party, and the Individual Plainti?fs R. Stanton Jones David P. Gersch David.gerseh@arnoldporter.coin Elisabeth S. Theodore Elisabeth theodoreralamoldnorternom Daniel F. Jacobson Arnold Porter Kaye Scholer, LLP 601 Massachusetts Ave. NW Washington DC 20001-3743 Counsel for Common Cause and the Individual Plainti??fs Mark E. Braden mbradent?lbakerlaweorn Richard Raile rrailet?albakerlawnom Trevor Stanley tstanlev@bakerlaw.eom Baker Hostetler, LLP Washington Square, Suite 1100 1050 Connecticut Ave., NW Washington, DC 20036-5403 Counsel for Legislative Defendants Marc E. Elias meliasf?l.nerkinsuuienom Aria C. Branch abrancht?dlnerkinseoleeom Perkins Coie, LLP 700 13th Street NW Washington DC 20005-3960 Counsel for Common Cause and the Individual Plainti?s Abha Khanna akhannat??tnercinseoienom Perkins Coie, LLP 1201 Third Ave. Suite 4900 Seattle WA 89101-3099 Counsel for Common Cause and the Individual Plainti?s Phillip J. Strach Michael McKnight Michaelmeknight@ogletree.com Alyssa Riggins Alvssasigginsf?logletreecom Ogletree, Deakins et al. 4208 Six Forks Rd., St. 1100 Raleigh, NC 27609 Counsel for Legislative Defendants John E. Branch, ibranch?i?gsh anahanmcdougalnorn H. Denton Worrell Nathaniel J. Pencock npeneoek@shanahamnedougal.eom Shanahan McDougal, PLLC 128 E. Hargett Street, Suite 300 Raleigh, NC 27601 Attorneys for De?ndant?Intervenors Case Document 30?1 Filed 10/21/19 Page 3 of 11 Case Document 1-2 Filed 10/31/19 Page 4 of 21 This the day of October, 2019. . ?64" ?j??ww at Stephanie A. Brennan Special Deputy Attorney General Case Document 30-1 Filed 10/21/19 Page 4 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 5 of 21 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 18 CVS 14001 COMMON CAUSE, et aI., Plaintiffs, v. AFFIDAVIT OF KAREN BRINSON BELL REPRESENTATIVE DAVID LEWIS in his official capacity as Senior Chairman of the House Select Committee on Redistricting; et 31., Defendants. 1, Karen Brinson Bell, swear under penalty of perjury, that the following information is true to the best of my knowledge and state as follows: 1. I am over 18 years old. I am competent to give this af?davit, and have personal knowledge of the facts set forth in this af?davit. I have consulted with senior staff at the State Board in the preparation of this af?davit. 2. I currently serve as the Executive Director of the North Carolina State Board of Elections (the ?State Board?). I became Executive Director of the State Beard effective June 1, 2019. My statutory duties as Executive Director include staf?ng, administration, and execution of the State Board?s decisions and orders. I am also the Chief State Elections Of?cial for the State of North Carolina under the National Voter Registration Act of 1993 and N.C.G.S. 163- 27 (2019 Spec. Supp.) As Executive Director, I am responsible for the administration of elections in the State of North Carolina. The State Board has supervisory responsibilities for the 100 county boards of elections, and as Executive Director, I provide guidance to the directors of the county boards. 3. In our state, the county boards of elections administer elections in each county, Case Document 30-1 Filed 10/21/19 Page 5 of 11 Case Document 1-2 Filed 10/31/19 Page 6 of 21 including,- among other things, providing for the distribution of voting systems, ballots, and pollbooks, training elections of?cials, conducting absentee and in?person voting, and tabulation and canvassing of results. The State Board is responsible for development and enhancement of our Statewide Elections Information Management System which includes managing functions that assign voters to their relevant voting districts, a process known as ?geocoding.? The State Board also supports the county boards and their vendors in the preparation and proo?ng of ballots. 4. For North ?Carolina House and Senate districts, the geocoding process starts when the State Board receives legislative district shape?les, which include geographic data setting the boundaries for legislative districts. The State Board?s staff then works with county board staff to use the shape?les to update the voting jurisdictions that are assigned to particular addresses in SEIMS. This process then allows the State Board to work with county board staff and ballot- preparation vendors to prepare ballots. The State Board must perform an audit of the geocoding to ensure its accuracy before ballot preparation. 5. The amount of time required for geocoding generally corresponds with the number of district boundaries that are redrawn within the counties. In this case, I understand that there are 37 counties that are subject to remedial redistricting, between the state House and Senate maps, and a signi?cant number of those counties are likely to have newly drawn district boundaries within the counties? borders. Staff estimates that, given what we currently know, geocoding would likely take between 17 and 21 days (including holidays and weekends) for the 2020 primary for state legislative of?ces, depending on the degree of change to intracounty district lines. . 6. Ballot preparation and proo?ng can begin after geocoding is complete and Case Document 30-1 Filed 10/21/19 Page 6 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 7 of 21 candidate ?ling closes. For the 2020 primary elections, candidate ?ling for state legislative districts occurs between noon on December 2, 2019, and noon on December 20, 2019. See N.C.G.S. The process of generating and proo?ng ballots is complex and involves multiple technical systems and quality-control checkpoints that precede ballot printing and the coding of voting machines. This includes proo?ng each ballot style for content and accuracy, ballot printing, and delivery of all ballot materials to county boards. Staff estimates that, given what we currently know, ballot preparation and proo?ng would likely take between 17 and 21 days (including holidays and weekends) for the 2020 primary for state legislative of?ces, depending on the number of ballot styles to prepare, which largely depends on the degree of change to intracounty district lines, and the number of contested nominations. 7. Geocoding and candidate ?ling may occur concurrently, although that is not ideal because the completion of geocoding permits candidates and county boards to verify if a candidate desiring to ?le for election lives in a particular district. It is possible, however, to check candidate eligibility while geocoding is still taking place. 8. Geocoding and ballot preparation must occur consecutively,-however, not concurrently. Ballots cannot be prepared until the proper geographical boundaries for voting districts are set in SEIMS. Additionally, the end?of?year holidays could pose dif?culties for available staff time for the State Board, county boards, and vendors. Therefore, the total time required for geocoding and ballot preparation is likely between 34 and 42 days (including holidays and weekends). 9. Under N.C.G.S. the State Board must begin mailing absentee ballots 50 days prior to the primary election day, unless the State Board authorizes a reduction to 45 days or there is ?an appeal before the State Board or the courts not concluded, in which case Case 5:19-cv-00452-FL Document 30?1 Filed 10/21/19 Page 7 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 8 of 21 the board shall provide the ballots as quickly as possible upon the conclusion of such an appeal.? The federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires that absentee ballots that include elections for federal office be made available by 45 days before a primary election, see 52 U.S.C. 203 unless I request a waiver of this requirement based on a legal contest delaying the preparation of ballots (or another enumerated hardship), and that waiver is granted by the federal of?cial designated to administer UOCAVA, see id. 203 02(g). The state requesting a waiver must present a comprehensive plan that provides absentee UOCAVA voters sufficient time to receive and submit absentee ballots they have requested in time to be counted in the federal election.1 Based on the current primary date of March 3, 2020, for state legislative districts, 50 days before the primary election falls on January 13, 2020, and 45 days before the primary election falls on January 18, 2020. 10. In sum, the State Board would need to receive the shape?les for geocoding and ballot preparation between now and 34 to 42 days before the deadline for distributing absentee ballots. Currently, that deadline is January 13, 2020, which means the shape?les must arrive between now and December 2?10, 2019. If that deadline were moved to January 18, 2020, the shape?les would need to arrive between now and December 7?15, 2019. 11. If the deadlines for distributing absentee ballots were extended beyond what is required by UOCAVA, the State Board would also have to factor in additional administrative steps - that must be prepared before in?person voting occurs. Currently, early voting is set to begin on February 12, 2020 for the 2020 primary. 12. Before in-person voting occurs, the State Board must work with county boards to load data onto physical media cards that are placed in voting tabulation machines, a process called waiver guidancei?f. 4 Case 5:19-cv-00452-FL Document 30?1 Filed 10/21/19 Page 8 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 9 of 21 ?burning media.? The media cards ensure that the tabulators anticipate the layout of ballots and properly attribute votes based on the ballot markings. The county boards must also conduct logic and accuracy testing to ensure that tabulation machines accurately read ballots and to correct any errors in coding. Staff estimates that burning media, preparing ballot marking devices and tabulators, and logic and accuracy testing would likely take the counties 14 days. After that process, the State Board works with the county boards to conduct a mock election, which takes one day, and generally affords two weeks thereafter to remedy any technical problems identi?ed during the mock election. That two?week period could be reduced, but the State Board generally believes that the two?week period fully insures against risks associated with technical problems that may be identified in the mock election. 13. Accordingly, regardless of when the absentee ballot distribution deadline falls, allowing 29 days a?er ballots have been prepared to prepare for. in?person election voting is preferable. Under the current deadlines for distributing absentee ballots, which falls roughly a month before early voting begins, these processes can be accommodated. The time requirements for these processes would only become relevant if the absentee distribution deadline is shortened to less what is currently required by UOCAVA. 14. If the Court were to order a separate primary for state legislative districts, a different set of administrative requirements would be triggered. 15. First, it is not technically possible to perform geocoding while in-person voting is occurring, and it is difficult to perform geocoding during the canvass period after the election. This is because making changes in SEIMS related to geocoding inhibits the actual voting process. County canvass takes place 10 days following an election. Generally, at that point, geocoding may begin, assuming no recount has been ordered. Accordingly, we recommend that geocoding for any separate legislative primary not begin any earlier than_March 14, 2020. Relying on the aforementioned estimates, it would take between 34 and 42 days after March 14, 2020, to geocode and prepare 5 . Case Document 30-1 Filed 10/21/19 Page 9 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 10 of 21 ballots for a separate primary. Candidate ?ling could occur before or simultaneous with geocoding. 16. Second, state law regarding the deadline for distributing absentee ballots would again require 50 days? time prior to the primary election day, unless the State Board reduced that time to 45 days or there is ?an appeal before the State Board or the courts not concluded, in which case the board shall provide the ballots as quickly as possible upon the conclusion of such an appeal.? N.C.G.S. The federal UOCAVA deadline would not apply if the primary did not involve federal of?ces. 17. Third, one-stop early voting would have to begin 20 days before the primary election day under N.C.G.S. Accordingly, all of the administrative processes that must occur before in-person voting begins (geocoding, ballot preparation, burning media, preparingtouch-screen ballots, logic and accuracy testing, mock election, and technical ?x period, among other things), which are estimated to take between 63 and 71 days total, would need to occur between March 14, 2020, and 20 days before the date of the separate primary. 18. Fourth, there are additional administrative challenges that counties would face if a separate legislative primary were held (assuming that the legislative primary were not to coincide with a second primary that may need to be held in any event, due to an unresolved nomination contest ?om the March primary). Chief among these challenges would be recruiting poll workers and securing polling locations, along with the associated costs. Increasingly, county elections of?cials have found it necessary to spend more time recruiting early voting and election day poll workers, especially because of statutorily mandated early voting hours weekdays from 7 am. to 7 pm. and technological advances in many counties now require that elections workers be familiar with computers. Additionally, a large portion of precinct voting locations in the state are housed in places of worship or in schools, with still others located in privately owned facilities. Identifying and securing appropriate precinct voting locations and one-stop early 6 Case Document 30-1 Filed 10/21/19 Page 10 of 11 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 11 of 21 s1tes requlres advance work by county board of electlons staff and coordmatlon w?h the State Board. This concludes my af?dawt This the it?? of October 2019 $91211 Karen Bell, Executive Director N.C. State Board of Elections Sworn to and subscribed before me this i day of October 2019 Emanununm'm? 4? A?Sle?wan 5% L9 Iii? X. 91,1690 31*wa 'melt?ml'? Wtjav?w ?to 32 mu. ?u (Notary Public) mil? My expires: Fabf 7?5 9 ?4 Case 5 19 cv 00452 FL Document 30-1 Filed 10/21/19 Page 11 of 11 Case 2 19 cv-00037-D Document 1-2 Filed 10/31/19 Page 12 of 21 10/22/2019 Voter Search I New Search Voter Details A JAMES ELLIS NORMAN Il 11029 MASON RIDGE DR RALEIGH, NC 27614 County: WAKE Status: ACTIVE Voter Reg Num: 000100027438 NCID: BP40164 Party: REP Race: WHITE Ethnicity: UNDESIGNATED Gender: MALE Registration Date: 12/03/2007 Customer: Yes Election Day Polling Place A BRASSFIELD ELEMENTARY SCHOOL 2001 BRASSFIELD RD RALEIGH, NC 27614 Case Document 1-2 Filed 10/31/19 Page 13 of 21 Jurisdictions A Lkup/Voterlnfo/ 1/2 10/22/2019 Precinct: VTD: Congress: NC Senate: NC House: Superior Court: Judicial: Prosecutorial: County Commissioner: Municipality: School: Sample Ballots 10/08/2019 MUNICIPAL 11/05/2019 MUNICIPAL Voter History (14) Absentee Request (0) Voter Search PRECINCT 02-04 02-04 CONGRESSIONAL DISTRICT 2 NC SENATE DISTRICT 18 NC HOUSE DISTRICT 40 NC SUPERIOR COURT DISTRICT 10C NCJUDICIAL DISTRICT 10A 10TH PROSECUTORIAL COUNTY COMMISSIONER 6 UNINCORPORATED BOARD OF EDUCATION 3 Ballot(s) No eligible ballots. No eligible ballots. For more information, please contact the Wake County Board of Elections: 2014-2019 NC State Board of Elections Case Document 1-2 Filed 10/31/19 Page 14 of 21 2/2 10/22/2019 Voter Search New Search I Voter Details A THOMAS WILLIAM HILL 386 DANIELS RD CORAPEAKE, NC 27926 County: GATES Status: ACTIVE Voter Reg Num: 000000014515 NCID: BS13379 Party: REP Race: WHITE Ethnicity: UNDESIGNATED Gender: MALE Registration Date: 02/09/2012 Customer: Yes Election Day Polling Place A 4N SUNBURY SUB STATION #2 (CORAPEAKE), 250 PARKERS FORK RD CORAPEAKE, NC 27926 Case Document 1-2 Filed 10/31/19 Page 15 of 21 Jurisdictions A pNoterlnfo/ 1/2 10/22/2019 Precinct: VTD: Congress: NC Senate: NC House: Superior Court: judicial: Prosecutorial: Sample Ballots Voter History (10) Absentee Request (0) For more information, please contact the Gates County Board of Elections. 2014-2019 NC State Board of Elections Voter Search PRECINCT #4 NORTH 4N CONGRESSIONAL DISTRICT 1 NC SENATE DISTRICT 1 NC HOUSE DISTRICT 5 IST SUPERIOR COURT DISTRICT ISTJUDICIAL DISTRICT IST PROSECUTORIAL Case Document 1-2 Filed 10/31/19 Page 16 of 21 2/2 10/22/2019 Voter Search ?New Search Voter Details A WILLIAM DENNISON BREWSTERJR 8215 LONG CREEK CLUB DR 405 CHARLOTIE. NC 28216 County: MECKLENBURG Status: ACTIVE Voter Reg Num: 001000351952 NCID: CW1157083 Party: REP Race: WHITE Ethnicity: NOT HISPANIC or NOT LATINO Gender: MALE Registration Date: 09/22/2016 Customer: No Election Day Polling Place A HORNETS NEST ELEMENTARY SCHOOL 6700 BEATTIES FORD RD CHARLOTTE, NC 28216 Case Document 1-2 Filed 10/31/19 Page 17 of 21 Jurisdictions A 1/3 10/22/2019 Precinct: VTD: Congress: NC Senate: NC House: Superior Court: judicial: Prosecutorial: County Commissioner: Municipality: Ward: School: Sample Ballots 09/10/2019 PRIMARY 10/08/2019 PRIMARY 11/05/2019 GENERAL 05/14/2019 PRIMARY Voter History (2) Absentee Request (0) Election Voter Search PCT 211 211 CONGRESSIONAL DISTRICT 12 NC SENATE DISTRICT 38 NC HOUSE DISTRICT 107 SUPERIOR COURT 26F JUDICIAL DISTRICT 26F 37TH PROSECUTORIAL BOARD OF COMMISSIONERS DISTRICT 1 CHARLOTTE CITY COUNCIL DISTRICT 2 SCHOOL BOARD DIST 3 Ballot(s) No eligible ballots. No eligible ballots. M003 No eligible ballots. For more information, please contact the Mecklenburg County Board of Elections. (a 9014?701 NC State Board of Flatt-inn: Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 18 of 21 2/3 10/22/2019 Voter Search New Search Voter Details A LARRY ELLIS NORMAN 101 MAIN ST LOUISBURG, NC 27549 County: FRANKLIN Status: ACTIVE Voter Reg Num: 000000074632 NCID: DA83979 Party: REP Race: WHITE Ethnicity: UN DESIGNATED Gender: MALE Registration Date: 09/26/2014 Customer: Yes Election Day Polling Place A LOUISBURG POLICE TRAINING CENTER 104 WADE AVE LOUISBURG, NC 27549 Case 2:19-cv-00037-D Document 1-2 Filed 10/31/19 Page 19 of 21 Jurisdictions A 1/2 10/22/2019 Precinct: VTD: Congress: NC Senate: NC House: Superior Court: Judicial: Prosecutorial: County Commissioner: Municipality: School: Sample Ballots 11/05/2019 MUNICIPAL Voter History (37) Absentee Request (0) Voter Search LOUISBURG CITY 01 CONGRESSIONAL DISTRICT 2 NC SENATE DISTRICT 18 NC HOUSE DISTRICT 7 9TH SUPERIOR COURT 9TH JUDICIAL 11TH PROSECUTORIAL DISTRICT 1 SEAT 1 TOWN OF LOUISBURG SB DISTRICT 1 SEAT 1 Ballot(s) For more information, please contact the Franklin County Board of Eiections. 2014-2019 NC State Board of Elections ncsbe.gov/Reg LkupNoterInfo/ Case Document 1-2 Filed 10/31/19 Page 20 of 21 2/2 10/22/2019 Voter Search I-d' I-I'Ia-I-l'w-i? VI Case Document 1-2 Filed 10/31/19 Page 21 of 21 3/3