IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEMOCRACY NORTH CAROLINA, THE
LEAGUE OF WOMEN VOTERS OF NORTH
CAROLINA, DONNA PERMAR, JOHN P.
CLARK, MARGARET B. CATES, LELIA
BENTLEY, REGINA WHITNEY EDWARDS,
AND ROBERT K. PRIDDY II,
Plaintiffs,
Civil Action No. 20-cv-457

vs.
THE NORTH CAROLINA STATE BOARD OF
ELECTIONS; DAMON CIRCOSTA, in his official
capacity as CHAIR OF THE STATE BOARD OF
ELECTIONS; STELLA ANDERSON, in her
official capacity as SECRETARY OF THE STATE
BOARD OF ELECTIONS; KEN RAYMOND, in
his official capacity as MEMBER OF THE STATE
BOARD OF ELECTIONS; JEFF CARMON III, in
his official capacity as MEMBER OF THE STATE
BOARD OF ELECTIONS; DAVID C. BLACK, in
his official capacity as MEMBER OF THE STATE
BOARD OF ELECTIONS; KAREN BRINSON
BELL, in her official capacity as EXECUTIVE
DIRECTOR OF THE STATE BOARD OF
ELECTIONS; THE NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION; J.
ERIC BOYETTE, in his official capacity as
TRANSPORTATION SECRETARY; THE
NORTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES; MANDY
COHEN, in her official capacity as SECRETARY
OF HEALTH AND HUMAN SERVICES,
Defendants.
COMPLAINT

1

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 Plaintiffs Democracy North Carolina, the League of Women Voters of North
Carolina (together with Democracy North Carolina, the “Organizational Plaintiffs”), and
Donna Permar, John P. Clark, Margaret B. Cates, Lelia Bentley, Regina Whitney Edwards,
and Robert K. Priddy II, individuals (“Individual Plaintiffs,” together with the
Organizational Plaintiffs, the “Plaintiffs”), bring this civil rights action under 42 U.S.C.
§ 1983, the First and Fourteenth Amendments, Title II of the Americans with Disabilities
Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., and Section 504 of the Rehabilitation Act,
29 U.S.C. § 794, for preliminary and permanent declaratory and injunctive relief against
the Defendants the North Carolina State Board of Elections; Damon Circosta, in his official
capacity as Chair of the State Board of Elections; Stella Anderson, in her official capacity
as Secretary of the State Board of Elections; Ken Raymond, Jeff Carmon III, and David C.
Black, all in their official capacities as Members of the State Board of Elections; Karen
Brinson Bell, in her official capacity as Executive Director of the State Board of Elections
(together the “SBE Defendants”); Defendants the North Carolina Department of
Transportation and J. Eric Boyette, in his official capacity as Secretary of the Department
of Transportation (the “DOT Defendants”); and Defendants the North Carolina Department
of Health and Human Services and Dr. Mandy Cohen, in her official capacity as Secretary
of Health and Human Services (the “DHHS Defendants”). Plaintiffs allege as follows:
NATURE OF ACTION
1.

The COVID-19 pandemic presents an unprecedented challenge to our nation.

Caused by a novel coronavirus and transmitted by asymptomatic, otherwise-healthy
individuals as well as the symptomatic, this disease threatens the health of millions of
2

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 Americans, especially elderly people and those with pre-existing medical conditions. As
infection and death rates continue to climb, the fallout from COVID-19 has severely
strained health care systems, the economy, and all levels and branches of government.
2.

This public health crisis has also endangered the machinery of our democracy

by threatening massive disruptions in election administration, especially in a presidential
election year that was on track for exceptionally high registration rates and turnout. Many
states have already taken drastic measures to counteract the spread of COVID-19 and
ensure that eligible voters can cast their ballots safely. North Carolina, however, has failed
to act: it has not altered its statutory electoral scheme in order to allow for safe and
accessible voting. As a result, millions of North Carolinians will likely either lose their
right to vote or be forced to compromise their health in order to access the franchise.
3.

At present, North Carolina’s election code imposes numerous restrictions—

on voter registration, mail-in absentee ballots, in-person early voting, and Election Day
administration—that, in light of the COVID-19 pandemic, unduly burden Plaintiffs’ right
to vote in violation of the First and Fourteenth Amendments. With respect to voter
registration, the pandemic has already caused registration rates to plummet in comparison
with previous election years. North Carolina election code and registration practices can
be altered to address the voter registration crisis with reasonable accommodations that
make registering to vote easier and safer during this public health crisis. For example,
North Carolina law requires voters to submit their registration applications at least 25 days
prior to the election, or else, register in-person at an early voting site, therefore potentially
exposing themselves or their families to infection via COVID-19. By preventing voters
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 from registering in the three weeks leading up to the election, the 25-day registration
requirement unconstitutionally burdens the right to vote. Voters cannot be required by their
government to choose between registering to vote and preserving their health. Likewise,
online voter registration opportunities could be easily expanded to allow voters to register
to vote from the safety of their home.
4.

Several aspects of North Carolina’s cumbersome absentee vote-by-mail

regime are unconstitutional because they will require Plaintiffs to risk exposure to COVID19 and to violate public health social distancing requirements in order to successfully vote
by mail. For example, North Carolina requires mail-in absentee voters to complete the
ballot in the presence of two witnesses or a notary. To comply, the Individual Plaintiffs
will need to expose themselves to individuals outside of their household, thereby risking
their health. The two-witness requirement thus creates a severe and unjustified burden on
Plaintiffs’ right to vote.
5.

Finally, certain restrictions on the administration of in-person voting, both

during the one-stop absentee voting period (known more commonly as “early voting” and
so identified hereinafter) and on Election Day, will produce unsafe conditions for voters.
For example, North Carolina requires each county to maintain uniform hours across all
early voting sites, regardless of the capacity and demand at each site. This statutory
requirement, recently added in June 2018, resulted in a significant reduction in early voting
sites in the 2018 general election by inflating costs through the addition of unnecessary
hours. This will likewise result in reduced sites and days for early voting in the upcoming
2020 general election because counties will have to close numerous early voting sites to
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 comply with the law and still stay within their budgets. On Election Day, moreover, a
majority of poll workers must reside in the precinct where they serve. This “home precinct”
requirement will exacerbate shortages of poll workers and lead to precinct consolidation.
Both the uniform-hours requirement for early voting sites and the home-precinct
requirement for Election Day poll workers will produce unsafe conditions by reducing the
number of sites in which voters can cast an in-person vote, which will, in turn, result in
long lines and large crowds, as seen in the recent Wisconsin primary election. Further, it is
not possible for a state like North Carolina— where historically, the vast majority of voters
choose to cast their ballot in person—to shift entirely to vote-by-mail methods in mere
months. North Carolina simply lacks the infrastructure necessary to conduct an election
predominantly by mail without overwhelming both county election administration systems
and the local U.S. Postal Service infrastructure. Immediate steps must be taken to ensure
that in-person voting opportunities are preserved and conducted in accordance with public
health guidance.
6.

In short, with its high transmission and mortality rates, COVID-19 poses a

risk to all voters, especially those who could develop severe complications like some of
the Individual Plaintiffs. The pandemic has already decimated voter registration rates and
third-party voter registration initiatives, and makes it impossible for voters to comply safely
with certain requirements for mail-in absentee voting, including the two-witness or notary
requirement. In addition, election officials anticipate severe shortages of poll workers, who
justifiably fear contracting the disease, resulting in fewer polling sites. A number of states’
election officials, including in North Carolina, have already felt compelled to postpone
5

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 primary and other elections by weeks or months in the face of this unprecedented public
health emergency.
7.

As of the filing of this complaint, Defendants have failed to implement any

election-related measures to mitigate the impact of the COVID-19 crisis on North
Carolina’s upcoming general election and safeguard the voting rights of countless eligible
North Carolina voters. 1 This failure to act, leaving the current electoral structure in place,
imposes an undue burden and an unconstitutional condition on the right to vote in violation
of the First and Fourteenth Amendments to the U.S. Constitution and a violation of
procedural due process. In addition, the State’s failure to accommodate the needs of highrisk voters and others violates the ADA and the Rehabilitation Act.
8.

Judicial intervention is warranted now, in advance of the 2020 general

election, to ensure that the State has adequate time to implement the measures necessary to
ensure that the right to vote may be exercised safely during this global pandemic. North
Carolina law sets forth an inflexible calendar of pre-election administrative steps and
milestones. For example, mail-in absentee ballots, their container-return envelopes with
witness certifications and signature blocks, and instruction sheets must be available for use
60 days in advance of a statewide general election and 50 days in advance of all other
elections, which in this case would be September 4, 2020. See N.C. Gen. Stat. §§ 163-

1

Plaintiffs are aware of at least two bills that have been filed purporting to address a
small number of the issues identified in this litigation. Plaintiffs have no basis to believe
that either bill will be enacted into law, certainly not in a timely-enough fashion, and
even if they were, those bills are entirely inadequate to address the constitutional
violations implicated in this lawsuit.
6

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 227.10(a), 163-229(b), 163-229(c). This means that all the text and design for mail-in
absentee ballots must be finalized well in advance of the 60th or 50th day before an election
such that these materials can be timely printed, delivered, and distributed to voters.
Moreover, in “emphasiz[ing] that lower federal courts should ordinarily not alter the
election rules on the eve of an election,” the Supreme Court has suggested that challenges
to a state’s election administration should be brought as soon as possible. Republican Nat’l
Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).
9.

Election administration plans for the June 23, 2020 Republican second

primary in Congressional District 2 have unfortunately been irreversibly set in motion. But
it is not too late to safeguard the right to vote in November’s general election, when the
pandemic is expected to resurge and once again threaten the functioning of our democracy.
JURISDICTION AND VENUE
10.

This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C.

§§ 1331 and 1343 because this case arises under the U.S. Constitution and the laws of the
United States and seeks equitable and other relief for the deprivation of constitutional and
federal statutory rights under color of state law.
11.

This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42

U.S.C. § 1988 and 28 U.S.C. § 1920.

2

N.C. State Bd. of Elections, Emergency Exec. Order (Mar. 20, 2020),
https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/Orders/Executive%
20Director%20Orders/Order_2020-03-20%20.pdf (rescheduling the Republican second
primary in Congressional District 11 from May 12, 2020, to June 23, 2020).
7

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 12.

This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C.

§§ 2201 and 2202.
13.

Venue is appropriate in the Middle District of North Carolina, under 28

U.S.C. § 1391(b)(1).
PARTIES
Plaintiffs
14.

Plaintiff Democracy North Carolina (“Democracy NC”) is a nonpartisan,

nonprofit organization dedicated to increasing voter access and participation and reducing
the corrupting role of money in politics through research, organizing, and advocacy.
Democracy NC’s volunteers, who are registered North Carolina voters across every region
of the state, form grassroots coalitions and are advocates in communities throughout the
state, including Wake County, Edgecombe and Nash Counties (the “Twin Counties”),
Alamance County, Mecklenburg County, Fayetteville, Wilmington, Winston-Salem,
Asheville, New Bern, Salisbury and Greenville. Democracy NC works for pro-democracy
reforms that strengthen the enforcement of election laws, protect voting rights, and improve
government accountability and ethics. Democracy NC engages in substantial election
protection efforts to ensure that voters are able to access the ballot, and spends substantial
time and effort producing voter guides to educate voters about the candidates that will be
on their ballots. Democracy NC advocates spend thousands of hours fighting for more early
voting sites and times to ensure that all voters have easy access to the franchise. In previous
elections, Democracy NC has also run rides-to-the-polls programs to ensure that voters
who lacked transportation and could not or did not want to use mail-in absentee voting
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 could nonetheless cast a ballot. Through original research, policy advocacy, grassroots
organizing, civic engagement, and leadership training, Democracy NC seeks to achieve a
fair and representative political system and advance a just and equitable North Carolina.
15.

Plaintiff the League of Women Voters of North Carolina (“LWVNC”) is a

nonpartisan community-based organization, formed in 1920, immediately after the
enactment of the Nineteenth Amendment to the U.S. Constitution granting women's
suffrage. The LWVNC is dedicated to encouraging its members and the people of North
Carolina to exercise their right to vote as protected by the U.S. Constitution and the Voting
Rights Act of 1965. The LWVNC’s mission is to promote political responsibility through
informed and active participation in government and to act on selected governmental
issues. The LWVNC impacts public policies, promotes citizen education, and makes
democracy work by, among other things, removing unnecessary barriers to full
participation in the electoral process. Currently the LWVNC has 17 local leagues and over
1,912 members, each of whom, on information and belief, is a registered voter in North
Carolina. The LWVNC is affiliated with the League of Women Voters of the United States,
which was also founded in 1920. The LWVNC began as an organization focused on
training women voters, and has evolved into an organization concerned with educating,
advocating for, and empowering all North Carolinians. With members in almost every
county in the state, the LWVNC’s local leagues are engaged in numerous activities,
including hosting public forums and open discussions on important issues to the
community. Individual League members invest substantial time and effort in voter training
and civic engagement activities, such as voter registration assistance and get-out-the-vote
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 (GOTV) efforts leading up to elections, including during the early voting period. The
LWVNC has developed a First Time Voter Engagement Program, which partners with
local election boards and schools to encourage young voters to register to vote. The
LWVNC also devotes substantial time and effort to ensuring that government at every level
works as effectively and as fairly as possible in implementing voting regulations and
procedures. To do so, the LWVNC advocates to make elections more transparent, to
support a strong and diverse judiciary, and to urge for appropriate government oversight.
16.

Plaintiff Donna Permar is a U.S. Citizen and a Durham County resident who

is completely blind and lives with her spouse who is also completely blind. Ms. Permar is
a registered voter who is eligible to vote in the November 2020 general election. Ms.
Permar only feels confident voting in-person and thus relies on polling places being open
and accessible by public transportation. Ms. Permar must utilize an ADA-compliant
machine in order to vote, because she cannot fill out an absentee ballot with confidence or
privacy.
17.

Plaintiff John P. Clark is a U.S. citizen and a resident of the town of Apex in

Wake County, North Carolina. He is 79 years old and a registered North Carolina voter
who is eligible to vote in the November 2020 general election. He has severe chronic
obstructive pulmonary disease (“COPD”) and has lived with this disease, which severely
limits his activities, for the last 12 years. Whenever he is active at all, walking around or
working in the yard, he carries an oxygen tank. He can walk only two blocks, even with
oxygen. He has also become more susceptible to exacerbated bouts of pneumonia,
contracting it about four times in the last six years. The most recent episode was in January
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 2020, which has caused a further deterioration of his respiratory condition. COPD makes
him more vulnerable to severe complications or even death from COVID-19 and, therefore,
it is too high a risk for him to vote in person. It is a necessity that he vote by absentee ballot
in the November general election. To avoid any risk of contracting COVID-19, Mr. Clark
has been quarantined along with his wife for approximately the last eight weeks. He lives
with his wife, and the only people who have entered their house during the lockdown have
been three service people whom he completely avoids. He and his wife never leave their
property except for necessary medical appointments, short walks, and occasional drives
including a weekly trip to the grocery store, during which Mr. Clark stays in the vehicle.
He has voted in every presidential election since 1968, and votes regularly in state and
local elections. He wants to vote in the November 2020 general election and has already
applied for his mail-in absentee ballot. His wife could serve as one witness for his mail-in
absentee ballot, but Mr. Clark could not safely obtain a second witness, given his COPD
and the risk COVID-19 poses to Mr. Clark’s life. Each person he interacts with poses an
additional, serious risk to his life. Given the two-witness-signature requirement, he does
not know how he can safely cast a ballot by mail, and he cannot safely vote in person.
18.

Margaret B. Cates is a U.S. citizen and a resident of the Town of Faison in

Duplin County, North Carolina. She is 85 years old and a registered North Carolina voter
who is eligible to vote in the November 2020 general election. She lives alone and has had
chronic fatigue syndrome for the last 27 years since 1993. This is a severely debilitating
disease and has severely curtailed Ms. Cates’ ability to move about and be active. Today,
she is in poor health, having suffered several falls recently and a urinary tract infection that
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 she has been fighting for a year. As a result, she has been weak, using a walker in the house,
and bedridden for twelve hours at night and for two in the afternoon. Ms. Cates has not left
her house in three months, except to go to a doctor's appointment right before March and
before the social distancing guidelines were put in place. She has voted in every
presidential election since 1956, and also votes in many state and local elections. She wants
to vote in the November 2020 general election, and she has never voted by mail. Under the
current North Carolina election procedures, there is no way for Ms. Cates to request an
absentee ballot online. If this option were available, with some assistance, she could and
would request a ballot that way. She would also be able to request a ballot by phone call.
Her nearest family member is her son, who lives a two-hour drive away in Southern Pines,
North Carolina. Without an online or phone option to request an absentee ballot, Ms. Cates
cannot request an absentee ballot on her own and would depend on others to mail or
otherwise provide it to her. As to the two-witness requirement, Ms. Cates’ assistant—who
comes to the house to help with daily tasks and is the only person to enter Ms. Cates’
home—could serve as one witness for her absentee ballot, but Ms. Cates cannot take the
additional risk of securing a second witness given her poor health and debilitated state.
Each additional person she interacts with poses a risk to her life. Voting in person is not an
option for her, as it would pose too much of a risk to her health. Given the current rules for
voting by mail, she does not know how she will safely cast a ballot by mail in the upcoming
election.
19.

Lelia Bentley is a U.S. Citizen and a 62-year-old registered voter in

Wilkesboro who lives on her own. She has been diagnosed with hypertension, which she
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 controls through diet, exercise, and meditation. About once a year, Ms. Bentley develops
a cold, which often progresses to include symptoms like sinus and chest congestion, a
hacking cough, and shortness of breath. As a result of her medical history, she has been
self-isolating at her home since March 10. Consistent with the Governor's stay-at-home
order, she does not leave her home unless absolutely necessary. Since March 15, if she has
needed groceries, she has ordered them online and had them delivered. Ms. Bentley does
not know if she can satisfy the two-witness requirement in order to request and cast an
absentee mail-in ballot. She has observed some of her neighbors breaking social distancing
guidelines, including hosting social gatherings in their homes. Other neighbors are
themselves self-isolating in order to protect elderly family members and she worries that,
even if they would agree to be her witnesses, she could accidentally expose them to the
virus, in spite of the precautions she has been taking. She does not know if her remaining
neighbors have been taking appropriate precautions to prevent contracting the novel
coronavirus, and therefore does not feel safe asking them to be witnesses. Even if she can
obtain two witnesses, she does not know if she will risk contact with them in order to
vote because she fears that it will lead her to contract COVID-19. Ms. Bentley will not vote
in person because that would be too much of a risk to her health. She does not know what
she will do if she cannot vote by mail.
20.

Regina Whitney Edwards is a U.S. citizen and resident of Durham County.

She is 30 years old and a registered North Carolina voter who is eligible to vote in the
November 2020 general election. She is at high risk of developing severe illness from
COVID-19 because she has a serious pre-existing medical condition, type 1 diabetes. She
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 has had type 1 diabetes for 21 years. To protect her health from the impact of COVID-19,
she has remained at home since mid-March and has not seen another person except her
partner, whom she lives with. She is uncomfortable leaving her home or being in proximity
to people other than her partner. She has voted in multiple elections in North Carolina. But
for the threat of COVID-19, she would vote in the November 2020 general election in
person. Because of the pandemic and the health risks posed by in-person voting, she is not
willing to vote in person during the November 2020 general election, and instead would
like to vote by mail-in absentee ballot to protect her health. Ms. Edwards cannot safely
comply with North Carolina’s two-witness requirement. Her partner is available to serve
as the first witness, but she is not willing to jeopardize her physical well-being by asking
another person to serve as the second witness. Although she strongly wishes to vote in the
November 2020 general election, she will not do so if the two-witness requirement remains
in effect.
21.

Robert K. Priddy II is a U.S. citizen and a resident of Brunswick County. He

is a 70-year-old registered North Carolina voter who is eligible to vote in the November
2020 general election. He is at high risk of developing severe illness from the novel
coronavirus because he has several serious pre-existing health conditions, and because of
his age. In 2010, he received a kidney transplant. To ensure that his body does not reject
the transplant, he takes medication that suppresses his immune system. The medication
also causes borderline diabetic issues, so he receives treatment for diabetes. To protect his
health, Mr. Priddy’s doctor has advised him to stay home and avoid contact with people
outside his household. He has remained at home since mid-March. He relies on his wife to
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 shop for groceries and run other errands. The only time he has gone outside since midMarch was to pick up prescriptions from a drive-thru pharmacy, during which he remained
in his vehicle without interacting directly with the pharmacist. He is uncomfortable leaving
his home or being in close proximity to people other than his wife. He has voted in
numerous elections in North Carolina. But for the threat of COVID-19, he would vote in
the November 2020 general election in person. Because of the pandemic and the health
risks posed by in-person voting, he is not willing to vote in person in the November 2020
general election. He would like to vote by mail-in absentee ballot, but he cannot safely
comply with North Carolina’s two-witness requirement. His wife is available to serve as
the first witness, but he would have to jeopardize his physical well-being to ask another
person to serve as the second witness. Although he strongly wishes to vote in the November
2020 general election, his health will be at risk if the two-witness requirement remains in
effect, and he is not sure he will be able to vote.
Defendants
22.

Defendant North Carolina State Board of Elections is the agency responsible

for the administration of the election laws of the State of North Carolina.
23.

Defendant Damon Circosta is the Chair of the North Carolina State Board of

Elections. Mr. Circosta is sued in his official capacity.
24.

Stella Anderson is the Secretary of the North Carolina State Board of

Elections. Ms. Anderson is sued in her official capacity.
25.

Ken Raymond is a Member of the North Carolina State Board of Elections.

Mr. Raymond is sued in his official capacity.
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 26.

Jeff Carmon III is a Member of the North Carolina State Board of Elections.

Mr. Carmon is sued in his official capacity.
27.

David C. Black is a Member of the North Carolina State Board of Elections.

Mr. Black is sued in his official capacity.
28.

Defendant Karen Brinson Bell is the Executive Director of the North

Carolina State Board of Elections. Ms. Brinson is sued in her official capacity.
29.

The North Carolina Department of Transportation is the agency that

implements the online voter registration system in the State of North Carolina.
30.

J. Eric Boyette is the Secretary of the North Carolina Department of

Transportation. Mr. Boyette is sued in his official capacity.
31.

The North Carolina Department of Health and Human Services is the agency

that administers online public benefits renewal in the State of North Carolina.
32.

Dr. Mandy Cohen is the Secretary of the North Carolina Department of

Health and Human Services. Dr. Cohen is sued in her official capacity.
STATEMENT OF FACTS
I.

The COVID-19 Pandemic
A.

COVID-19

33.

In December 2019, health officials in mainland China detected a novel

coronavirus, SARS-CoV-2, which causes a disease known as COVID-19. On January 30,
2020, the World Health Organization (“WHO”) declared COVID-19 to be a Public Health
Emergency of International Concern. On March 11, 2020, the WHO declared that it had

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 become a pandemic. COVID-19 has now spread throughout the world, including to every
state in the United States and to every county in North Carolina.
34.

The novel coronavirus that causes COVID-19 continues to spread at an

unprecedented pace around the world and within the United States. As of May 21, 2020,
there were 1,551,095 confirmed cases in the United States, and there have been 93,061
deaths nationwide. 3 As of May 22, 2020, the North Carolina Department of Health and
Human Services had confirmed 21,618 positive cases of coronavirus and 728 deaths in
North Carolina.4
35.

COVID-19 appears to be much more contagious than other respiratory

illnesses, such as influenza, SARS, or MERS, in significant part because of its capacity for
asymptomatic transmission, and substantially more lethal than influenza.
36.

According to the U.S. Centers for Disease Control and Prevention, (“CDC”),

individuals are at higher risk of severe complications and death from COVID-19 if they
are 65 years old or older or have underlying health conditions and diseases, including
chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity
(body mass index (“BMI”) of 40 or higher), diabetes, chronic kidney disease undergoing
dialysis, liver disease, and other health conditions that suppress immune systems like

3

Coronavirus Disease 2019 (COVID-19), Cases in the U.S., CDC,
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated
May 21, 2020).
4

COVID-19 Response, COVID-19 North Carolina Dashboard, NCDHHS,
https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count (last
updated May 22, 2020, at 10:51am).
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 HIV/AIDS.5 The CDC’s website, relying upon research from the National Center for
Immunization and Respiratory Diseases (“NCIRD”), Division of Viral Diseases, notes that
immunocompromised individuals are at severe risk from COVID-19: “Many conditions
can cause a person to be immunocompromised, including cancer treatment, smoking, bone
marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS,
and prolonged use of corticosteroids and other immune weakening medications.” 6
37.

Severe COVID-19 cases can cause a wide variety of secondary infections

and pathologies, including but not limited to: pneumonia, acute respiratory distress
syndrome, kidney failure, liver failure, strokes, heart attacks, cardiac inflammation, and
gastrointestinal infections, among others. 7 Furthermore, everyone is at some risk of severe
complications and death from COVID-19, as health officials have recently associated
COVID-19 with pulmonary embolism and stroke in younger patients without known risk

5

Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe
Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-athigher-risk.html (last updated May 14, 2020).
6

Id.

7

Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious
rampage through the body, from brain to toes, SCIENCE (Apr. 17, 2020),
https://www.sciencemag.org/news/2020/04/how-does-coronavirus-kill-clinicians-traceferocious-rampage-through-body-brain-toes.
18

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 factors 8 and subsequent inflammatory disease in young children. 9 In critical cases, some
patients need to be intubated and put on a ventilator. Many critical care patients ultimately
die. There is also evidence that individuals of color are dying of COVID-19 at a higher rate
than other demographic groups. 10
38.

The CDC has warned that asymptomatic COVID-19-positive individuals can

transmit the disease to others. 11 Studies have confirmed this. 12 As a result, individuals can
spread the disease for a week or more before realizing they are infected, facilitating rapid
contagion. Currently, there are no therapeutic treatments or vaccinations that have been
shown to significantly alter the trajectory of the COVID-19 outbreak. Leading
epidemiology experts anticipate that the pandemic will continue into fall and winter of
2020, and potentially well into 2021.

8

Robert Glatter, M.D., Why is COVID-19 Coronavirus Causing Strokes in Young And
Middle-Aged People?, FORBES (Apr. 27, 2020),
https://www.forbes.com/sites/robertglatter/2020/04/27/why-is-covid-19-coronaviruscausing-strokes-in-young-and-middle-aged-people/#598e78fe34df.
9

Pam Belluck, New Inflammatory Condition in Children Probably Linked to
Coronavirus, Study Finds, N. Y. TIMES (May 13, 2020),
https://www.nytimes.com/2020/05/13/health/coronavirus-children-kawasaki-pmis.html.
10

Shelby Lin Erdman, Black Communities Account for Disproportionate Number of
Covid-19 Deaths in the US, study finds, CNN (May 6, 2020),
https://www.cnn.com/2020/05/05/health/coronavirus-african-americans-study/index.html.
11

Coronavirus 2019 (COVID-19), Prevent Getting Sick: How COVID-19 Spreads, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated
Apr. 13, 2020).
12

Mary Van Beusekom, Studies profile lung changes in asymptomatic COVID-19, viral
loads in patient samples, CTR. FOR INFECTIONS DISEASE RESEARCH & POL’Y, UNIV. OF
MINN. (Feb. 25, 2020), http://www.cidrap.umn.edu/news-perspective/2020/02/studiesprofile-lung-changes-asymptomatic-covid-19-viral-loads-patient.
19

Case 1:20-cv-00457 Document 1 Filed 05/22/20 Page 19 of 72

 B.

North Carolina’s Response to COVID-19

39.

In North Carolina, Governor Cooper declared a State of Emergency on

March 10, 2020, which remains in effect as of the date of this filing. Within a week
thereafter, the Governor imposed social distancing guidelines for individuals and
businesses, closed public schools, and prohibited mass gatherings.
40.

Governor Cooper has announced a three-phase plan to slowly ease

restrictions in North Carolina that will depend on whether North Carolina has successfully
met key metrics regarding infection in the state. 13 On May 5, 2020, Governor Cooper
issued an executive order modifying North Carolina’s stay at home order and transitioning
the state to “Phase 1” of slowly easing certain COVID-19 restrictions. 14 This order advised
North Carolinians to maintain six-feet social distancing from non-family or household
members and encouraged high risk individuals to stay home and travel only for “absolutely
essential purposes.” 15 On May 20, 2020, the Governor issued an order moving North
Carolina into “Phase 2” and superseding the Phase 1 order. 16 The Phase 2 Order notes that
“the risk of contracting and transmitting COVID-19 is higher in settings that are indoors,

13

Press Release, North Carolina Office of the Governor, Governor Extends Stay At Home
Order Through May 8, Plans Three Phase Lifting of Restrictions Based on Virus Trends
(Apr. 23, 2020), https://governor.nc.gov/news/governor-extends-stay-home-orderthrough-may-8-plans-three-phase-lifting-restrictions-based.
14

Governor Roy Cooper, Exec. Order No. 138 (May 5, 2020),
https://files.nc.gov/governor/documents/files/EO138-Phase-1.pdf.
15

Id.

16

Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf.
20

Case 1:20-cv-00457 Document 1 Filed 05/22/20 Page 20 of 72

 where air does not circulate freely and where people are less likely to maintain social
distancing by staying six (6) feet apart,” and “very strongly encourage[s]” individuals at
high risk of severe illness, including those 65 years or older and with underlying medical
conditions, to stay home and travel only for “absolutely essential purposes.” 17 It maintains
the prior guidance that individuals maintain at least six feet of social distancing from other
individuals, and requires businesses to limit occupancy and take other measures promoting
social distancing. It also encourages individuals, including restaurant workers and personal
care patrons, to wear face coverings. Mass gatherings of more than 10 people indoors and
25 people outdoors remain prohibited. 18
41.

The Governor has also issued an executive order allowing non-profit

corporations incorporated under the laws of the State of North Carolina to vote on matters
by electronic balloting to “prevent members and directors from having to gather in a place,
and thereby to promote social distancing and the mitigation of the spread of COVID-19.”19
42.

The DHHS Defendants similarly recommend that individuals “put distance

between yourself and other people” and advise, “[t]he very best evidence on reducing the
spread is to maintain social distance and stay at home.” 20

17

Id.

18

Id.

19

Governor Roy Cooper, Exec. Order. No. 136 (Apr. 24, 2020),
https://files.nc.gov/governor/documents/files/EO136-Nonprofit-Corp.pdf.
20

COVID-19 Response, Individuals and Families, NCDHHS,
https://www.ncdhhs.gov/divisions/public-health/covid19/individuals-and-families (last
accessed May 19, 2020).
21

Case 1:20-cv-00457 Document 1 Filed 05/22/20 Page 21 of 72

 43.

These measures are far from temporary and similar measures will likely be

required for the remainder of 2020. Governor Cooper’s current Phase 2 executive order
notes that “it may be necessary to reinstate certain restrictions eased by this Executive
Order,” 21 and, in any event, even the final “Phase 3” guidelines encourage social distancing
and minimizing exposure, and any spike in infections may require tightening restrictions
again.22
44.

Epidemiologists and infectious disease specialists have already concluded

that there will very likely be a COVID-19 resurgence in the United States this fall. Dr.
Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has
said a second wave of infections in the United States is “inevitable.” 23 South Korea,
Germany, and China are already seeing a resurgence of COVID-19 after loosening
restrictions in response to declining new COVID-19 cases. Pointing to the spread of
COVID-19 cases in southern hemisphere countries as those regions enter their winter
seasons, Dr. Fauci remarked, “And if, in fact, they have a substantial outbreak, it will be

21

Governor Roy Cooper, Exec. Order No. 141 (May 20, 2020), https://htv-prodmedia.s3.amazonaws.com/files/eo141-phase-2-1590009188.pdf.
22

Id.

23

Miriam Berger et al., Drug trial shows modest benefits in treating coronavirus, Fauci
says, WASH. POST (Apr. 20, 2020),
https://www.washingtonpost.com/world/2020/04/29/coronavirus-latest-news/; see also
Remarks by President Trump, Vice President Pence, and Members of the Coronavirus
Task Force in Press Briefing, WHITE HOUSE (Mar. 25, 2020),
https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-briefing-11/.
22

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 inevitable that we need to be prepared that we’ll get a cycle around the second time.” 24 He
concluded, “[W]e really need to be prepared for another cycle.” 25 Furthermore, experts
from the Harvard T.H. Chan School of Public Health’s Center for Communicable Disease
Dynamics warned that, to avoid exceeding hospital critical care capacities, prolonged or
intermittent social distancing may be necessary into 2022.26
C.

Inadequacies in North Carolina’s Administration of the Upcoming 2020
General Election in Light of the COVID-19 Pandemic

45.

The general election for all federal offices, including the presidential

election, will be held on November 3, 2020. COVID-19 will have an unprecedented impact
on this upcoming election. Even before the COVID-19 pandemic, the Brookings Institution
predicted that “turnout in 2020 could break all records and test our election machinery as
it has never been tested before.” 27 Other experts also anticipate record-breaking turnout in
the 2020 presidential election. 28

24

Id.

25

Id.

26

Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2
through the postpandemic period, SCIENCE (Apr. 14, 2020),
https://science.sciencemag.org/content/early/2020/04/24/science.abb5793.
27

William A. Galston, What does high voter turnout tell us about the 2020 elections?,
BROOKINGS INST. (Nov. 20, 2019),
https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-high-voter-turnout-tell-usabout-the-2020-elections/.
28

See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. NEWS & WORLD REPORT
(Sept. 20, 2019), https://www.usnews.com/news/elections/articles/2019-09-20/expertspredict-huge-turnout-in-2020; Nate Cohn, Huge Turnout Is Expected in 2020. So Which
Party Would Benefit?, N.Y. TIMES (July 15, 2019),
https://www.nytimes.com/2019/07/15/upshot/2020-election-turnout-analysis.html;
Ronald Brownstein, Brace for a Voter-Turnout Tsunami, THE ATLANTIC (June 13, 2019),
23

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 46.

North Carolina’s election laws and procedures are not designed to facilitate

safe, fair, and free elections during such a public health crisis, and the legislature has failed
to take action to remedy this situation. Given the rapidly spreading infection, North
Carolina’s current election laws will force voters to choose between exposing themselves
to severe risks to their health and exercising their constitutionally-protected right to vote.
47.

The inadequacies of North Carolina’s election laws and procedures to

facilitate safe, free, and fair voting during a pandemic have not gone unnoticed by state and
county election officials. On March 26, 2020, Defendant Karen Brinson Bell, Executive
Director of the North Carolina State Board of Elections, wrote to Governor Cooper and the
leadership in North Carolina’s General Assembly requesting statutory changes to address
the impact of the COVID-19 pandemic on North Carolina’s upcoming elections. 29 Among
other recommendations, Defendant Bell requested (i) expanding options for voters to
submit mail-in absentee ballot requests beyond the current mail-only option to enable
requests by fax, email, and an online portal; (ii) establishing a fund to pay for postage for
returned absentee ballots; (iii) reducing or eliminating the requirement that two witnesses
sign an absentee mail container envelope in order for the ballot to be counted; (iv) lifting
the requirement that a majority of Election Day poll workers reside in the precinct in which
they work; and (v) lifting the uniformity requirement for early voting sites, days and hours.

https://www.theatlantic.com/politics/archive/2019/06/2020-election-voter-turnout-couldbe-record-breaking/591607/.
29

Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to Governor
Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1).
24

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 In a follow-up letter sent April 22, 2020, Defendant Bell emphasized that changes were
required immediately during the April 28 legislative session of the General Assembly in
order to be effective for North Carolina’s 2020 elections, including the 2020 general
election. 30
48.

On April 27, 2020, dozens of county board of elections officials from eleven

counties in North Carolina’s 11th Congressional District similarly issued an “urgent
request” of North Carolina’s legislators to protect upcoming elections. 31 They warned that
regular poll workers were “reluctant to serve” during the pandemic given that a large
percentage of them are elderly and at higher risk of severe complications and death from
COVID-19. These county officials requested that the legislators eliminate the requirement
that a majority of poll workers reside in the precinct in which they serve and instead permit
officials to recruit poll workers from anywhere in the entire county.
D.

Voter Registration

49.

Those eligible to vote in North Carolina can register in person, by mail, or,

under some circumstances, online with the Department of Motor Vehicles (“DMV”), a
division of Defendant the North Carolina Department of Transportation. 32 To register by
mail, eligible voters can download a voter registration form from the State Board of

30

See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to
Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2).
31

Letter from Board of Elections Members in Congressional District 11 to General
Assembly Leaders et al. (Apr. 29, 2020) (Exhibit 3).
32

See Registering to Vote in North Carolina, N.C. State Bd. of Elections,
https://www.ncsbe.gov/Voters/Registering-to-Vote (last accessed May 20, 2020).
25

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 Elections website and then print, complete, and sign the form. Voters cannot submit this
form electronically and they must mail in the original form with a wet-ink signature to the
local county board of elections. See N.C. Gen. Stat. § 163-82.6(c). Voters must also include
their drivers license number, non-driver identification card, or last four digits of their Social
Security number. See N.C. Gen. Stat. § 163-230.2.
50.

Alternatively, eligible voters who are existing DMV customers with a North

Carolina drivers license or DMV-issued ID may register to vote online. See N.C. Gen. Stat.
§ 163-82.19. Until recently, this option required users to complete a DMV transaction, such
as a license renewal or duplicate, at the same time. 33 For this registration method, voter
registration applications must be submitted at least 25 days before the election in which the
voter wishes to cast a ballot. 34
51.

Eligible voters may also register to vote through certain state agencies such

as the Division of Social Services, Division of Public Health/WIC, and Division of Services
for the Blind—all divisions of Defendant N.C. Department of Health and Human
Services—among others. See N.C. Gen. Stat. §§ 163-82.20 – 82.23.35 Voters may submit
forms to state agencies in lieu of mailing the application but must do so at least 25 days
33

See Press Release, N.C. State Bd. of Elections, State Board, DMV Partner to Expand
Online Voter Registration Service (Mar. 30, 2020), https://www.ncsbe.gov/PressReleases?udt_2226_param_detail=2195.
34

See also Registering to Vote in North Carolina, N.C. State Bd. of Elections,
https://www.ncsbe.gov/Voters/Registering-to-Vote (last visited May 19, 2020) (“Voter
registration applications submitted [through the DMV] fewer than 25 days before an
election will not be processed until after the election.”)
35

See NVRA Agency Forms, N.C. State Bd. of Elections, https://www.ncsbe.gov/VoterRegistration/NVRA (last accessed May 19, 2020).
26

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 before the election in which they wish to vote, see N.C. Gen. Stat. § 163-82.20(g), (h), and
may not do so online, even though those agencies, upon information and belief, possess
“wet-ink” signatures for those customers.
52.

Finally, voters may register in person at an early voting site using same-day

registration with valid identification. 36 This option is available up until the last Saturday
before the election. See N.C. Gen. Stat. § 163-227.2(b)
53.

The COVID-19 pandemic and resulting stay-at-home orders in North

Carolina have significantly hindered third-party voter registration efforts for the 2020
general election. For example, Plaintiff LWVNC has had to cancel and otherwise reduce
its in-person voter registration initiatives, which typically comprise a significant portion of
its voter registration efforts. Plaintiff Democracy NC has had to cancel its in-person voter
education forums where voter registration forms are usually provided. Furthermore, voters’
ability to access the resources needed to register to vote—whether they be printers, postage,
and access to a post-office box, state agency, county board of election or the DMV—have
also been significantly hindered by the COVID-19 pandemic. As a result, voter registration
is significantly lagging this year as compared to previous general election years. While
January 2020 showed an approximately 162 percent increase in registrations compared to

36

One-Stop Early Voting; Same-Day Registration, N.C. State Bd. of Elections,
https://www.ncsbe.gov/Voting-Options/One-Stop-Early-Voting (last accessed May 20,
2020).
27

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 January 2016 (indicating increased intent to vote in this election cycle), April 2020 showed
an approximately 50 percent decrease in voter registrations compared to April 2016.37
E.

Absentee Vote-By-Mail

54.

There will be a dramatic increase in the number and proportion of mail-in

absentee ballots cast in the upcoming 2020 elections. While North Carolina permits all
registered voters to cast an absentee ballot if they choose, see N.C. Gen. Stat. § 163-226(a),
recently-enacted restrictions on absentee voting as well as other pre-existing provisions in
the North Carolina election code impose undue burdens on voters wishing to cast mail-in
absentee ballots in light of the current pandemic, and will force voters to choose whether
to exercise their right to vote or protect their health.
55.

Wisconsin’s recent election, which was held after its governor declared state

of emergency in response to COVID-19, shows that there will likely be an increased use
of mail-in ballots in North Carolina. Like North Carolina, Wisconsin does not require an
excuse to vote by mail. In its April 7, 2020 spring election, nearly 1.3 million registered
Wisconsin voters requested a mail-in ballot, 38 the most in the state’s history. Of the 1.6
million voters who cast ballots in the spring election, 39 more than 70 percent, that is 1.1

37

See N.C. State Bd. of Elections, NVRA Data (2008 to present),
https://s3.amazonaws.com/dl.ncsbe.gov/NVRA/nvra_stats_all.txt. This data file is
accessible by going to https://www.ncsbe.gov/Public-Records-Data-Info/ElectionResults-Data and navigating to “FTP Site”  “NVRA”  “NVRA_stats_all.txt”.
38

Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference
Primary, WIS. ELECTIONS COMM’N (Apr. 16, 2020), https://elections.wi.gov/node/6856.
39

Unofficial Spring Election Turnout - 34.3 % - 4/14/2020, WIS. ELECTIONS COMM’N,
https://elections.wi.gov/blog (last accessed May 21, 2020).
28

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 million, voted by mail-in absentee ballot. 40 This was a dramatic increase from the
percentage of mail-in absentee ballots cast in the 2016 presidential primary election, in
which mail-in absentee ballots made up just 11.8 percent of total ballots cast. 41
56.

Defendant North Carolina State Board of Elections anticipates a similar

dramatic increase in mail-in absentee voting in 2020 to 30 to 40 percent, 42 and thus needs
to prepare for such an increase. As it currently stands, North Carolina’s election code
imposes severe burdens to voters who need to cast absentee mail-in ballots, in light of the
current pandemic, and to the expected influx of voters wishing to vote by mail for the first
time.
1.
57.

Senate Bill 683

North Carolina law has permitted all eligible citizens to vote by mail in all

federal and state elections since 2001. See N.C. Gen. Stat. § 163-226(a). Voters must
submit a completed State Absentee Ballot Request Form to their county board of elections
in order to receive an absentee ballot. N.C. Gen. Stat. § 163-230.2(a).
58.

In November 2019 North Carolina made it significantly more cumbersome

for its voters to cast absentee ballots by mail by enacting Senate Bill 683. See An Act to
Amend the Laws Governing Mail-In Absentee Ballots (“SB 683”), S.L. 2019-239, § 1

40

Updated municipal absentee ballot data, WIS. ELECTIONS COMM’N,
https://elections.wi.gov/blog (last updated 4/13/20 9:35am).
41

Absentee Ballot Requests for April 7 Exceed 1 million - COVID-19, WIS. ELECTIONS
COMM’N (Apr. 1, 2020), https://elections.wi.gov/node/6802.
42

See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to
Governor Roy Cooper et al. (Apr. 22, 2020) (Exhibit 2).
29

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 (Nov. 6, 2019).43 Among other provisions, SB 683 imposes restrictions on who can assist
voters with completing mail-in absentee ballot request forms. See S.B. 683 § 1.3(a)
(amending N.C. Gen. Stat. § 163-230.2(e), (e1)). Requests are invalid if “completed
partially or in whole, or signed by anyone other than the voter, or the voter’s near relative
or verifiable legal guardian.” N.C. Gen. Stat. § 163-230.2 (e)(2). Members of multi-partisan
teams (“MATs”) trained and authorized by county boards of elections may assist in
completion of the request, id., but in certain North Carolina counties, the availability of
MATs has been inadequate. Voters requiring assistance to complete the written request
form due to blindness, disability, or inability to read or write may request another person
if “there is not a near relative or legal guardian available to assist that voter.” N.C. Gen.
Stat. § 163-230.2(e1).
59.

There are also restrictions on who may help return a completed absentee

ballot request. Under N.C. Gen. Stat. § 163-230.2(c), the completed request form may only
be delivered to the county board of elections by the voter, the voter’s near relative or
verifiable legal guardian, or a MAT team member. Unlike for completing an absentee ballot
request form, there is no exception in the statute for a voter who needs assistance with
returning the request form by reason of their blindness, disability, or inability to read or
write. See N.C. Gen. Stat. § 163-230.2 (e)(4).
60.

Strangely, North Carolina law imposes greater restrictions on completing and

submitting absentee ballot applications than exist under North Carolina law for returned,
43

See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2019239.pdf.
30

Case 1:20-cv-00457 Document 1 Filed 05/22/20 Page 30 of 72

 completed absentee ballots, for which a voter may obtain assistance from a third party who
is not a near relative or legal guardian. See N.C. Gen. Stat. §§ 163-226.3(a), 163-229(b)(4),
163-231(a). By doing so, SB 683 has effectively banned organizations like LWVNC from
assisting voters with requesting absentee ballots. This is especially damaging where, as
here, the State Board expects a dramatic increase in voting-by-mail, indicating that many
individuals will be seeking to vote by mail for the first time. Without assistance by
organizations like LWVNC, which was available up until SB 683’s passage in late 2019,
many of these voters will lack needed assistance to navigating the ballot request process
during a time when that assistance is crucial to ensuring individuals can vote safely.
2.
61.

Two-Witness Requirement

North Carolina’s two-witness or notary requirement for mail-in absentee

voting will also force voters to decide whether to break quarantine or violate socialdistancing directives, and thereby risk their own health, in order to successfully cast a ballot
this year. Among other requirements, North Carolina election law requires that an
individual voting an absentee ballot do so “[i]n the presence of two persons who are at least
18 years of age.” N.C. Gen. Stat. § 163-231(a).44 The only alternative is to obtain the
signature of a notary public. Id. However, during the current pandemic a notary public is
not a viable option for many voters because many businesses are closed and the recent

44

Other restrictions include prohibiting any candidate for nomination or election from
serving as a witness unless the voter is the candidate’s near relative, prohibiting owners,
managers, directors, employees of any hospital, clinic, nursing home, or rest home from
witnessing for a voter who is a patient or resident, and certain office-holders. See N.C.
Gen. Stat. §§ 163-226.3(a)(4) and 163-237(b)(1).
31

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 exclusion of absentee ballots from the recent COVID response bill allowing for electronic
notaries. See An Act to Provide Aid to North Carolinians in Response to the Coronavirus
Disease (COVID-19) Crisis, S.L. 2020-3 § 4.1(c) (May 4, 2020).45 Accordingly, even when
they do have access to a notary public, individuals again would have to breach socialdistancing measures and leave their home to have their ballot notarized.
62.

North Carolina is one of just twelve states that requires a witness or notary

to observe the voter casting the absentee ballot and then sign the ballot’s certificate
envelope and one of just three states that requires two witnesses. 46 In a time when social
distancing is a crucial measure to protect public health, the two-witness requirement
unconstitutionally forces individuals to choose between voting through an absentee mailin ballot that will count or protecting their health, and constitutes an insurmountable hurdle
for many eligible North Carolina voters seeking to protect their health and the health of

45

See https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL20203.pdf (at PDF p. 31) (“Nothing in this section shall apply to any notarization under
Article 20 of Chapter 163 of the General Statutes [regarding absentee ballots].”).
46

See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat.
Ann. § 18:1306(2)(a); Minn. Stat. §§ 203B.07, 203B.121; Minn. R. 8210.2450; Miss.
Code Ann. §§ 23-15-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283,
115.295; N.C. Gen. Stat. § 163-231; Okla. Stat. tit. 26, § 14-108; 17 R.I. Gen. Laws § 1720-23; S.C. Code Ann. §§ 7-15-220, 7-15-230; Va. Code Ann. §§ 24.2-706, 24.2707; Wis. Stat. § 6.87(4)(b)1; see also Jay Chaudhury, NC absentee ballots require 2
witnesses. Is that unique?, POLITIFACT (Apr. 23, 2020),
https://www.politifact.com/factchecks/2020/apr/23/jay-chaudhuri/nc-absentee-ballotsrequire-2-witnesses-unique/; Voting Outside the Polling Place: Absentee, All-Mail and
other Voting at Home Options, NAT’L CONF. OF STATE LEGIS. (Apr. 14, 2020),
https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx
(select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down
to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”).
32

Case 1:20-cv-00457 Document 1 Filed 05/22/20 Page 32 of 72

 their family or co-habitants. Those eligible North Carolina voters under self-quarantine,
particularly those at risk of severe complications and death from COVID-19, who live
alone or who do not have two other adults in their household, will be unable to safely satisfy
the state’s double-witness signature requirement and cast a mail-in absentee ballot. This is
no small number: According to the U.S. Census, there are 1,113,548 single-member
households in North Carolina.47 Of those single-member households, 416,121, or 37
percent, are occupied by someone 65 or older. 48
63.

Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley are all eligible North

Carolina voters who need to vote by mail-in absentee ballot to safeguard their lives and the
health and well-being of their family members or co-habitants. Mr. Clark, who is 79 years
old, has severe COPD that puts him at serious risk of severe complications and even death
from COVID-19. After several bouts of pneumonia in recent years, Mr. Clark has been
quarantining himself at home. Ms. Cates, who is 85 years old, lives with chronic fatigue
syndrome, a debilitating disease that makes it hard for her to engage in normal daily
activities and has suffered a urinary tract infection and fallen several times over the last
year. Since the social distancing guidelines were put in place, Ms. Cates has not left her
home, and only allows an assistant to visit and help with household chores while carefully
maintaining distance from Ms. Cates. Ms. Edwards has a pre-existing medical condition,

47

Table S2501, Occupancy Characteristics, American Community Survey, U.S. CENSUS
BUREAU,
https://data.census.gov/cedsci/table?q=S2501&g=0400000US37&tid=ACSST5Y2018.S2
501.
48

Id.
33

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 type 1 diabetes, which puts her at high risk for developing severe illness from COVID-19.
In light of the risks to her health, she is uncomfortable leaving her home or being in close
proximity to people other than her partner. Mr. Priddy’s doctor has informed him that he
is at high risk of developing severe illness from the novel coronavirus due to his age and
serious pre-existing health conditions, including his use of medication that suppresses his
immune system related to a kidney transplant in 2010, and treatment for diabetes. To
protect his health, Mr. Priddy’s doctor has advised him to stay at home and avoid contact
with people other than his wife. Ms. Bentley has been diagnosed with hypertension and has
a history of developing cold symptoms attacking her lungs, also putting her at risk of severe
illness from COVID-19. As a result, she has been self-isolating in her home since March
10 to avoid contracting novel coronavirus. Ms. Bentley lives alone and does not have any
family nearby and does not feel safe asking her neighbors to serve as witnesses because
she has observed some breaking the Governor’s stay-at-home order. Other neighbors are
themselves self-isolating to protect vulnerable family members, and Ms. Bentley does not
know what precautions her remaining neighbors are taking. Id. Accordingly, Plaintiffs
Clark, Cates, Edwards, Priddy, and Bentley have no way to safely comply with the twowitness requirement and are therefore effectively disenfranchised by N.C. Gen. Stat. § 163231(a). Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley will be forced to choose
between exercising their fundamental right to vote or running the risk of contracting and
spreading COVID-19 and further worsening the pandemic in North Carolina.

34

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 3.

64.

Other North Carolina Election Laws and Procedures that Must
Be Adjusted to Protect the Right to Vote By Mail During This
Public Health Crisis

In addition to the restrictions imposed by SB 683 and the two-witness

requirement, North Carolina’s election laws lack crucial mechanisms for guaranteeing that
eligible individuals in North Carolina will be able to cast a mail-in absentee ballot that is
counted. As pointed out by Defendant Director Bell, North Carolina has no mechanism for
requesting absentee ballots by phone, email, or online. Accordingly, voters wishing to
request an absentee mail-in ballot must either have the necessary equipment at home
(printer, envelope, postage, and access to mail pick-up), violate social-distancing directives
and guidelines and put themselves at severe risk by seeking these items outside the home,
or rely on others to provide them with a form. By contrast, at least twelve states allowed
voters to request an absentee ballot online, and an additional three allowed voters to submit
a scanned application via email. 49
65.

Furthermore, North Carolina voters need a fail-safe for absentee voting to

prevent the unlawful denial of the right to vote given North Carolina’s lack of experience
with the anticipated volume of mail-in absentee ballot requests for the November general
election. This is especially critical given the recent evidence out of Wisconsin and Ohio
that state and local election officials, as well as the U.S. Postal Service, are failing to deliver

49

VOPP: Table 6: States With Web-Based and Online Absentee Ballot Applications,
NAT’L CONF. OF STATE LEGIS. (May 4, 2020), https://www.ncsl.org/research/electionsand-campaigns/vopp-table-6-states-with-web-based-and-online-absentee-ballotapplications.aspx.
35

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 thousands of absentee ballots to voters in the mail. 50 Those voters who timely request an
absentee ballot but who do not receive their requested absentee ballot in time to vote and
drop them off or mail them by Election Day—i.e., within a certain number of days of the
election of their request and/or within a certain number of days of the request—will be
disenfranchised unless they are permitted to use the Federal Write-In Absentee Ballot
(“FWAB”) as an alternative of last resort to cast their votes. 51 FWABs are already offered
to overseas civilians, who can download them and print them for use, but domestic civilian
absentee voters are denied the same option, even when their regular mail-in absentee ballot
does not arrive in time or at all.
66.

Additionally, voters without access to postage and mail pick-up must also

violate social-distancing directives and guidelines to submit mail-in absentee ballots. To
successfully vote by mail, voters must mail their ballots such that they are postmarked on
or before Election Day and delivered no later than 5:00 pm on Election Day, or return their
voted ballots to the county board of elections (not a polling location) no later than 5:00 pm
on Election Day. However, there is currently no provision in North Carolina law for
contactless drop boxes for absentee ballots, which would allow voters to avoid severe
delays with the U.S. Postal Service, reduce the overall burden on the U.S. Postal Service,
and allow those voters with their own vehicles to submit absentee ballots without requiring

50

See, e.g., Carrie Levine, Ohio’s Mail-in Ballot Brouhaha: A Sign of Coming Trouble?
THE CTR. FOR PUBLIC INTEGRITY (Apr. 28, 2020),
https://publicintegrity.org/politics/elections/ohios-mail-in-ballot-brouhaha-a-sign-ofcoming-trouble/.
51

See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.
36

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 contact with anyone to obtain required postage or deliver in-person to the county board of
elections.
67.

Finally, there is no adequate statewide-mandated procedure in North

Carolina for voters to cure deficient absentee ballot requests or the ballots themselves. In
the March 2020 North Carolina primary, almost 15 percent of submitted absentee mail-in
ballots were rejected. 52 This number was even higher for voters of color, with 19 percent
of mail-in ballots submitted by black voters rejected and almost 16 percent of mail-in
ballots submitted by Latinx voters rejected. 53 In light of the anticipated dramatic increase
in the use of absentee ballots and the new restrictions under SB 683 on who may assist a
voter to request an absentee ballot, there is a heightened risk that voters new to mail-in
absentee voting will fail to follow the proper procedures without being afforded any
opportunity to cure any deficiencies. As it stands, North Carolina’s election code risks
disenfranchising vast numbers of voters attempting to submit mail-in absentee ballots.
F.

In-Person Voting

68.

North Carolina’s electorate has expressed a clear preference for in-person

voting, with just 4 percent of voters casting mail-in absentee ballots in the 2016 general

52

See N.C. State Bd. of Elections, March 3, 2020 Absentee File,
https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_03_03/absentee_20200303.zip. This
data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2020_03_03”
 “absentee_20200303.zip”. The statistics generated from the absentee file do not
include absentee by mail ballots that were either requested and not sent to the voter, or
sent to the voter but not returned to the State Board of Elections.
53

Id.
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 election. 54 In general, preference for in-person voting holds disproportionately true for
voters of color. 55 There are a multitude of causes for this voter behavior pattern, but one
reason stems from the machinations used to steal votes from and defraud voters of color,
among others. 56 This means that North Carolina has not needed to, and indeed has not,
built the infrastructure to accommodate such a dramatic increase in voter demand for
absentee

ballots

without

overwhelming

current

systems

and

causing

mass

disenfranchisement. 57 Thus, it is critically important that voters be provided with ample
and as-safe-as-possible in-person voting options.
69.

The CDC has issued guidance directing election officials to “reduce crowd

size at polling stations” such as encouraging “early voting, where voter crowds may be
smaller throughout the day,” which “minimizes the number of individuals a voter may

54

See N.C. State Bd. of Elections, November 8, 2016 History Statistics,
https://s3.amazonaws.com/dl.ncsbe.gov/ENRS/2016_11_08/history_stats_20161108.zip
This data file is accessible by going to https://www.ncsbe.gov/Public-Records-DataInfo/Election-Results-Data and navigating to “FTP Site”  “ENRS”  “2016_11_08”
 “history_stats_20161108.zip”.
55

See David Becker, Mail-in ballots to avoid coronavirus? Yes, but here’s how to
minimize chaos and unfairness, WASH. POST (Mar. 18, 2020),
https://www.washingtonpost.com/opinions/2020/03/18/mail-in-ballots-avoidcoronavirus-yes-heres-how-minimize-chaos-unfairness/.
56

See generally, CAROL ANDERSON, ONE PERSON, NO VOTE: HOW VOTER SUPPRESSION
IS DESTROYING O UR DEMOCRACY 19-22 (2018); STEVEN LAWSON, BLACK BALLOTS:
VOTING RIGHTS IN THE SOUTH, 1944-1969, Ch. 2 (1999).
57

See Ryan McCarthy, Whether the Ballot You Mail Is Counted May Depend On Where
You Vote, PROPUBLICA (Apr. 30, 2020), https://www.propublica.org/article/whether-theballot-you-mail-is-counted-may-depend-on-where-you-vote.
38

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 come in contact with.” 58 There are two provisions of North Carolina law that have already
and will continue to hinder county boards in providing safe and adequate in-person voting
options, and there are a number of other adjustments needed to ensure voter and poll worker
safety.
1.
70.

Ensuring Adequate Number of Poll Workers

The first problematic provision is North Carolina’s requirement that a

majority of poll workers reside in the precinct where they serve on Election Day. See N.C.
Gen. Stat. § 163-42(b). Upon information and belief, as of May 14, 2020, eight county
boards have requested to eliminate 64 precincts for the upcoming Congressional District
11 Second Republican Primary, impacting over 50,000 voters. 59 Several of these county
boards specifically cited a lack of poll workers as a reason for consolidated precincts.
71.

As the pandemic persists into the fall, older poll workers will continue to

withdraw in numbers sufficient to preclude the operation of countless polling places. In the
2014 general election, over 60 percent of North Carolina poll workers were 61 years of age
or older and, as a result, a significant portion of poll workers are in the 65-years-old-plus
CDC risk category.60

58

Coronavirus Disease 2019 (COVID-19), Recommendations for Election Polling
Locations, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last updated: Mar. 27, 2020).
59

See
https://dl.ncsbe.gov/index.html?prefix=Public_Records_Requests/June%2023%20Second
%20Primary_temporary_precinct_transfers/.
60

U.S. Election Assistance Comm’n, The 2014 EAC Election Administration and Voting
Survey Comprehensive Report (Table 39), at 248,
39

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 72.

Defendant Director Bell requested a change in state law to allow county

boards to recruit and train poll workers from across the county, 61 and county board
members from Congressional District 11 similarly conveyed to North Carolina’s leadership
that this change “would significantly help us staff polling places in these challenging
times.” 62
73.

As North Carolina faces the withdrawal of countless poll workers statewide,

this requirement will make it extremely difficult, if not impossible, to cure those critical
shortages, prevent the closure of any polling places, and minimize the lines, crowds, and
wait times at operational polling places. Long wait times and crowds unduly place
vulnerable voters at a greater risk of contracting COVID-19.
2.
74.

Early Voting Flexibility

North Carolina must also change its hours-uniformity requirement for one-

stop, better known as “early voting,” sites. Currently, if any early voting site is open in a
county, all early voting sites must be open and all sites other than the county board office
must be open 8:00 a.m. to 7:30 p.m. See N.C. Gen. Stat. § 163-227.6(c). As a result,
precincts are unable to provide flexible hours that accommodate the specific behaviors and
needs of the local voting population using that site. Precincts that might otherwise close

https://www.eac.gov/sites/default/files/eac_assets/1/1/2014_EAC_EAVS_Comprehensiv
e_Report_508_Compliant.pdf.
61

See Letter from Karen Brinson Bell, Exec. Dir., N.C. State Bd. of Elections, to
Governor Roy Cooper et al. (Mar. 26, 2020) (Exhibit 1).
62

Letter from Board of Elections Members in Congressional District 11 to General
Assembly Leaders et al. (Apr. 27, 2020) (Exhibit 3).
40

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 due to low anticipated activity must stay open, increasing costs for the entire county and
causing precinct consolidation. 63
75.

After North Carolina imposed this requirement in June 2018 mandating

uniform hours across all early voting sites within each county, 64 the costs of implementing
this measure caused 43 counties to reduce the number of early voting sites in the 2018
general election compared to 2014 and over two thirds of counties to reduce weekend
hours. This disproportionately impacted black voters, who in 2018 made up approximately
22% of registered voters but 27% of those who cast ballots on the last Saturday of early
voting. 65
76.

As discussed above, the anticipated shortage of poll workers will already

cause precinct consolidation in light of the global pandemic; the uniform hours requirement
will compound this, causing long lines and limited early voting sites during the early voting
period when social distancing and reducing crowds is required for safe election
administration. Individuals accustomed to early voting may very well be deterred by large

63

See Blake Paterson, Bipartisan Furor as North Carolina Election Law Shrinks Early
Voting Locations by Almost 20 Percent, PROPUBLICA (Sept. 24, 2018),
https://www.propublica.org/article/bipartisan-furor-as-north-carolina-election-lawshrinks-early-voting-locations-by-almost-20-percent.
64

See An Act to Set Hours for One-Stop Early Voting Sites, S.L. 2018-112 (June 15,
2018). As originally written, the statute removed the final Saturday of early voting
beginning in 2018; this was subsequently postponed.
65

See Voting Rights and Election Administration in North Carolina: Field Hearing
Before the Subcomm. on Elections of the H. Comm. on House Administration (Apr. 18,
2019) (testimony of Tomas Lopez, Exec. Dir., Democracy North Carolina),
https://docs.house.gov/meetings/HA/HA08/20190418/109315/HHRG-116-HA08-WstateLopezT-20190418.pdf.
41

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 crowding and the inherent heightened risk of infection; they will thus be forced to choose
between risking their health to cast a ballot or foregoing their right to vote.
3.
77.

Information Regarding Precinct Consolidation

The State Board of Elections must also create a more accessible, centralized

way in which voters and advocates can monitor precinct consolidation, and thereby
advocate against harmful precinct consolidations. Currently, each county board of elections
must give notice at least 45 days before the election when altering or consolidating
precincts. See N.C. Gen. Stat. § 163-128(a). This notice must be posted in a generally
circulated newspaper, posted on the door of the county courthouse and county board of
elections, and mailed to the chairmen of every political party in the county. Id. Voters only
need to be notified of changes in their particular precinct 30 days before an election. Id. In
order to ensure that all voters have access to information about precinct consolidations
necessitated by poll worker and/or site shortages, the State Board must provide that
information in a centralized and accessible manner.
4.
78.

Personal Protective Equipment

Finally, there is currently no provision for counties to provide poll workers

and voters with Personal Protective Equipment (“PPE”) for use during in-person voting,
such as protective masks and gloves for poll workers and/or voters, separation shields,
antiseptic wipes for equipment, and single-use pens. Effective use of PPE can dramatically

42

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 reduce the likelihood of coronavirus transmission, 66 and these measures are needed to
adequately protect voters exercising their constitutional rights. In a May 15, 2020, meeting
of the State Board of Elections, Defendant Director Bell stated that she had ordered PPE
for those counties holding the second Republican primary election on June 23, 2020. The
same provisions are required for the 2020 general election and, because of the state-wide
nature and expected high turnout of this election, the SBE Defendants must take action
immediately to ensure counties obtain adequate supplies. Without these measures,
plaintiffs will be forced to choose between their right to vote and their right to bodily
integrity.
CLAIMS
COUNT ONE
(All Defendants)
(Undue Burden on the Right to Vote in Violation of the First and Fourteenth
Amendments to the U.S. Constitution and 42 U.S.C. § 1983)
79.

Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
80.

Under the First and Fourteenth Amendments to the U.S. Constitution, any

burden on the right to vote must be balanced against a state’s interest in that requirement.
The Supreme Court has set forth the following test:
[T]he rigorousness of our inquiry into the propriety of a state election law
depends upon the extent to which a challenged regulation burdens First and
Fourteenth Amendment rights. Thus, as we have recognized when those
66

See, e.g., Zeynep Tufekci et al., The Real Reason To Wear A Mask, THE ATLANTIC
(Apr. 22, 2020), https://www.theatlantic.com/health/archive/2020/04/dont-wear-maskyourself/610336/.
43

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 rights are subjected to “severe” restrictions, the regulation must be “narrowly
drawn to advance a state interest of compelling importance.” Norman v.
Reed, 502 U.S. 279, 289 (1992). But when a state election law provision
imposes only “reasonable, nondiscriminatory restrictions” upon the First and
Fourteenth Amendment rights of voters, “the State’s important regulatory
interests are generally sufficient to justify” the restrictions. Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983); see also id., at 788–789, n. 9.
Burdick v. Takushi, 504 U.S. 428, 434 (1992).
81.

“A panoply of regulations, each apparently defensible when considered

alone, may nevertheless have the combined effect of severely restricting participation and
competition.” Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J.,
concurring); see also N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir.
2016) (because there were fewer early voting days, more voters would have to vote on
Election Day, and “[t]ogether, these produce longer lines at the polls on Election Day, and
absent out-of-precinct voting, prospective Election Day voters may wait in these longer
lines only to discover that they have gone to the wrong precinct and are unable to travel to
their correct precincts. Thus, cumulatively, the panoply of restrictions results in greater
disenfranchisement than any of the law’s provisions individually.”).
82.

Unless Plaintiffs are granted the relief requested, the right to vote of

thousands of North Carolinians, including Individual Plaintiffs and Organizational
Plaintiffs and their members, will be severely burdened (if not denied entirely) in the
general election on November 3, 2020.
Voter Registration
83.

North Carolina’s requirement that voter registration applications be

submitted at least 25 days before the election in which the voter wishes to cast a ballot
44

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 under N.C. Gen. Stat. § 163-82.6(d), and the DMV’s requirement that those registering
online do so at least 25 days before the election, is a severe burden on the right to vote in
light of the COVID-19 pandemic, which has caused a dramatic decrease in voter
registration rates. If a voter is not able to register at least 25 days before the election, then
their only recourse is to do same-day registration at an early voting site, therefore
potentially exposing themselves or their families to infection via COVID-19. See N.C. Gen.
Stat. § 163-82.6(f). Furthermore, North Carolina’s failure to provide online voter
registration through other state agencies, and specifically Defendant DHHS, places a severe
burden on those individuals who need to register online but are not registered with the
DMV.
84.

Any administrative burden created by extending the voter registration

deadline and/or expanding online voter registration through Defendant DHHS is “de
minimis” and Defendants cannot put forth a compelling or legitimate state interest in
keeping the deadline as such in face of the emergency situation that COVID-19 has created
and will create. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020
U.S. Dist. LEXIS 48394, at *14 (W.D. Wis. Mar. 20, 2020); Fla. Democratic Party v.
Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016); Ga. Coal. for the Peoples’ Agenda,
Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016).
85.

Since DMV has only allowed voters to register online without requiring a

DMV transaction at the same time since March 2020, voters are generally unaware of this
option. The 25-day deadline will hinder LWVNC’s efforts to promote voter registration
and require LWVNC and its members to divert significant resources. The lack of other
45

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 online registration options offered by the DHHS Defendants further impedes LWVNC’s
ability to educate and engage in its voter registration efforts, and frustrates its mission to
ensure that all eligible voters can register safely during the COVID-19 pandemic.
86.

In the midst of this ongoing public health crisis, there is no state interest in

favor of enforcing this 25-day deadline or failing to provide online voter registration
through Defendant DHHS that justifies the burden placed on Plaintiffs’ constitutional right
to vote, especially given that North Carolina allows for same-day registration at one-stop
early voting sites up until the Saturday before the election and has already implemented an
online voter registration method through DMV for certain voters. Upon information and
belief, Defendant DHHS possesses “wet-ink” signatures of its benefits recipients.
Accordingly, any purported state interests in enforcing this 25-day deadline or failing to
provide Defendant DHHS online voter registration are neither narrowly drawn to advance
nor justified by this interest, in light of the ongoing public health crisis.
Vote-by-mail assistance restrictions
87.

North Carolina’s restrictions on who can assist voters with completing and

returning mail-in absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2(c),
(e), and (e1) is a severe burden on the fundamental right to vote and Plaintiff LWVNC,
their members, and the voters they will assist during the upcoming election. This restriction
impairs LWVNC’s efforts to help voters cast a ballot and limits the assistance LWVNC
and its members can provide to voters wishing to vote by mail, during an election in which
a voters are expected to vote by mail—and do so for the first time—in unprecedented
numbers.
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 88.

In the midst of this ongoing public health crisis, there is no state interest in

favor of enforcing these restrictions that justifies the burden placed on the constitutional
right to vote. Any purported state interest in enforcing the restriction on who can assist
individuals in requesting absentee ballots is neither narrowly drawn to advance nor justified
by this interest, in light of the ongoing public health crisis.
Vote-by-mail Witness Requirement
89.

North Carolina’s two-witness or notary requirement for mail-in absentee

voting pursuant to N.C. Gen. Stat. § 163-231(a) is a severe burden on Plaintiffs’ right to
vote in light of the COVID-19 pandemic, because it will require voters, particularly voters
at high risk of severe complications and death from COVID-19, to break their selfquarantine and violate social distancing directives at risk to their health. For example,
Plaintiffs Clark, Edwards, and Priddy, who are each self-quarantined with one other person
in their household, will be forced to choose between staying home and avoiding contact
with people outside their households or seeking out another person to serve as a second
witness despite guidance from the CDC and medical professionals to stay quarantined and
limit contact with people outside their households. Plaintiffs Cates and Bentley, who are
also self-isolated at home, live alone and do not have any family members nearby.
Satisfying the two-witness requirement will require them to put themselves at risk of
contracting COVID-19 in order to satisfy the two-witness certification requirement.
90.

In the midst of this ongoing public health crisis, there is no state interest in

favor of enforcing the two-witness or notary requirement that justifies the burden placed
on Plaintiffs’ constitutional right to vote. Any purported state interest in enforcing the two47

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 witness or notary requirement is neither narrowly drawn to advance nor justified by this
interest, in light of the ongoing public health crisis.
Vote-by-mail lack of fail-safe for absentee ballots that are not timely delivered to voters
91.

North Carolina lacks any fail-safe option for mail-in absentee voters, if the

state’s election administrators, as anticipated, cannot successfully deliver mail-in ballots
on time to ten times as many absentee voters as usual. In order to prevent the wholesale
and unlawful denial of the right to vote to voters who cannot risk voting in person at a
polling site on or before Election Day, Defendants must afford voters who timely request
an absentee ballot but who do not receive their requested absentee ballot in time to vote
and drop them off or mail them by Election Day—i.e. within a certain number of days of
the election of their request and/or within a certain number of days of the request—the
option to use the Federal Write-In Absentee Ballot (“FWAB”) as an alternative of last
resort to cast their votes. 67 Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend
to vote by mail-in absentee ballot, in order to safeguard their health. If, as expected, North
Carolina’s state and local election officials and their staff cannot keep pace with the
unprecedented rise in absentee ballot requests, some or all of these five Plaintiffs may well
not receive their absentee ballots in a timely fashion such that they can be cast and counted.
Accordingly, in order to protect their right to vote, just like overseas civilian voters,
Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley must be permitted to cast FWABs,
as a fail-safe option.

67

See https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.
48

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 92.

Particularly in the midst of this ongoing public health crisis, the failure to

offer this standardized fail-safe option for mail-in absentee voters, which would completely
deny the right to vote to countless domestic civilian absentee voters, cannot be justified by
any legitimate or important state interest. This option is already afforded to overseas
civilian voters; the exclusion of domestic, civilian voters, at least in the limited context
where a voter does not receive a requested absentee ballot in the mail, is unreasonable and
discriminatory. See Burdick, 504 U.S. at 434 (“But when a state election law provision
imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth
Amendment rights of voters, the State’s important regulatory interests are generally
sufficient to justify’ the restrictions.”) (emphasis added, internal quotations omitted). Any
purported state interest in failing to provide these services is neither narrowly drawn to
advance nor justified by this interest, in light of the ongoing public health crisis.
Vote-by-mail failure to provide other accommodations
93.

North Carolina’s failure to provide mechanisms for requesting absentee

ballots by phone, email, or online, its failure to provide contactless drop boxes for absentee
ballots that would allow voters to submit their absentee ballots from their vehicles instead
of violating social-distancing directives and guidelines, and its failure to provide a
statewide-mandated procedure for voters to cure deficient absentee ballot requests are all,
individually or in combination, severe restrictions on Plaintiffs’ right to vote and will
require them to put their own health at risk in order to successfully vote by absentee ballot.
See Clingman v. Beaver, 544 U.S. 581 607–08 (2005) (O’Connor, J., concurring); N.C.
State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 (4th Cir. 2016). Plaintiff Cates
49

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 cannot secure an absentee ballot request form on her own, though she could if online or
phone request options were made available. LWVNC will also have to redirect a significant
amount of its limited resources toward helping eligible voters to access absentee ballot
request forms without a phone, email, or online option to request an absentee ballot.
94.

Additionally, Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend

to vote by mail-in absentee ballot, some for the first time, and may well make errors on
their absentee ballot request forms or absentee ballots and/or their certificate envelopes.
Procedural due process requires a cure procedure for these defects. Furthermore, the lack
of any uniform mechanism to cure will require LWVNC and Democracy NC to devote
additional resources towards researching these various rules to help ensure the voters they
assist have followed all procedures for requesting and filling out absentee ballots precisely,
in addition to their general educational efforts.
95.

In the midst of this ongoing public health crisis, there is no state interest in

failing to provide these services that justifies the burden placed on Plaintiffs’ constitutional
right to vote, especially given the numerous other states that do provide these services. Any
purported state interest in failing to provide these services is neither narrowly drawn to
advance nor justified by this interest, in light of the ongoing public health crisis.
Poll worker “home precinct” requirement
96.

North Carolina’s requirement that a majority of poll workers reside in the

precinct where they serve on Election Day pursuant to N.C. Gen. Stat. § 163-42(b) is a
severe burden on Plaintiffs’ right to vote, as it will exacerbate a shortage of poll workers,

50

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 force precinct consolidation and relocation, and create long lines and crowds on Election
Day that contravene social distancing directives needed to protect Plaintiffs’ health.
97.

This constitutes a severe burden on voters, particularly those who cannot wait

in line for hours to vote. SBE Defendants are on notice that precinct consolidation due to
lack of poll workers is likely, given the requests for precinct consolidation for the June 23,
2020 second Republican Primary, and their failure to prepare for this same eventuality in
the November 3, 2020 general election will severely burden the rights of voters who rely
on in-person voting. See Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969) (finding that
the defendant’s failure to provide adequate voting facilities despite their foreknowledge of
precinct consolidations deprived voters of their constitutional rights); see also League of
Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (finding long lines
and inadequate voting machines severely burdened Ohio voters’ right to vote).
98.

Plaintiff Permar relies on polling sites being open in order to vote in-person

given her disability and her need to use an ADA compliant voting machine. She also relies
on polling places being located in places that are accessible by public transportation, which
she uses to independently travel. Ms. Permar’s right to vote and others similarly situated
would be severely burdened if precincts are consolidated in such a way as to force her or
others similarly situated to travel to a polling place that is not accessible by public
transportation or to wait in long lines exposing themselves to COVID-19 when they get to
the polling place. Plaintiff LWVNC will also be required to divert resources to recruit poll
workers, as well as in its voter education efforts to alert its members and those in their
communities about precinct consolidations if the in-precinct requirement for poll workers
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 remains in place and precincts are consolidated as a result. Democracy NC’s poll monitors
will also have to divert their resources to ensure voters find the correct precinct, instead of
providing the help they would otherwise provide voters.
99.

In the midst of this ongoing public health crisis, there is no state interest in

enforcing this requirement that justifies the burden placed on Plaintiffs’ constitutional right
to vote. Any purported state interest in enforcing this requirement is neither narrowly
drawn to advance nor justified by this interest, in light of the ongoing public health crisis.
In-person voting uniform hours
100. North Carolina’s requirement that early voting sites in every county maintain
uniform hours pursuant to N.C. Gen. Stat. § 163-227.6(c) is a severe burden on Plaintiffs’
right to vote, as the costs of maintaining uniform hours and limited resources in counties
will cause precinct consolidation and long lines and crowds on early voting days that
contravene social distancing directives needed to protect Plaintiffs’ health. Additionally,
given the SBE Defendants’ knowledge about the effect that COVID-19 has had on the June
2020 runoff election and could have on the November 2020 general election, they have an
obligation to mitigate precinct consolidation as much as possible so as to not severely
burden voters’ right to vote. See Ury, 303 F. Supp. at 124.
101. Plaintiff Permar works at Duke Hospital as a staff assistant, thus it is
important that she is able to vote at a time that is in line with her work schedule. Further,
Ms. Permar or other similarly situated disabled individuals should not have to wait in long
lines further risking their health or potential COVID-19 infection. Plaintiffs Democracy
NC and LWVNC will also be required to divert resources in its voter education efforts to
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 alert their members/advocates and those in their communities about precinct consolidations
if the uniform hours requirement remains in place.
102. In the midst of this ongoing public health crisis, there is no state interest in
enforcing this uniform hours requirement that justifies the burden placed on Plaintiffs’
constitutional right to vote. Any purported state interest in enforcing this requirement is
neither narrowly drawn to advance nor justified by this interest, in light of the ongoing
public health crisis.
Precinct-consolidation monitoring
103. North Carolina’s failure to provide a more accessible, centralized way in
which voters and advocates can monitor precinct consolidation is a severe burden on
Plaintiffs’ right to vote. The lack of centralized access to this information will impede and
confuse voters’ ability to determine where and how best to vote in-person and will impede
the efforts of advocates to oppose harmful precinct consolidations. Plaintiff Permar and
other voters rely on being able to know in advance where early voting locations are, or
where their election-day polling place is, so as to ensure that they are able to properly
schedule a time to vote. Democracy NC is a central hub for voter information, and it would
be a huge drain on its resources to not have easy access to proposed precinct consolidations
to inform voters. In the midst of this ongoing public health crisis, there is no state interest
in failing to provide this service that justifies the burden placed on Plaintiffs’ constitutional
right to vote. Any purported state interest in failing to provide this service is neither
narrowly drawn to advance nor justified by this interest, in light of the ongoing public
health crisis.
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 Personal Protective Equipment
104. North Carolina’s failure to provide PPE to all counties for use during early
and Election-Day in-person voting is a severe burden on Plaintiffs’ right to vote, as the
failure to provide this will exacerbate the shortage of poll workers and increase the risk
present to all individuals that vote in person. In conducting its Election Protection hotline
and poll monitoring program, Democracy NC volunteers will almost certainly be queried
about PPE, who has it, and how to get it if is not provided. In the midst of this ongoing
public health crisis, there is no state interest in failing to provide PPE that justifies the
burden placed on Plaintiffs’ constitutional right to vote. Any purported state interest in
failing to provide PPE is neither narrowly drawn to advance nor justified by this interest,
in light of the ongoing public health crisis.
105. Defendants, acting under color of state law, have deprived and will continue
to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S.
Constitution by administering and enforcing the above laws and/or by failing to provide
the above accommodations and services during the COVID-19 pandemic.
106. For the foregoing reasons, Defendants have deprived and will continue to
deprive Plaintiffs of the right to be free of undue burdens on their right to vote in violation
of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C.
§ 1983.

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 COUNT TWO
(SBE Defendants)
(Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to
Bodily Integrity in Violation of the Fourteenth Amendment to the U.S. Constitution
and 42 U.S.C. § 1983)
107. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
Complaint and the paragraphs in the counts below as though fully set forth herein.
108. Voting is protected by the First Amendment as a means of political
association and political expression. See Cal. Democratic Party v. Jones, 530 U.S. 567,
574 (2000); Norman v. Reed, 502 U.S. 279, 288–90 (1992); Anderson v. Celebrezze, 460
U.S. 780, 787–89, 806 (1983); Kusper v. Pontikes, 414 U.S. 51, 56–58 (1973); Williams v.
Rhodes, 393 U.S. 23, 30–31 (1968).
109. Under the unconstitutional conditions doctrine, the government may not
require an individual to forfeit one constitutional right in order to exercise another. See
Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977); Simmons v. United States, 390
U.S. 377, 394 (1968); Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005); Bourgeois v.
Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Green v. Brigano, 123 F.3d 917, 921 (6th
Cir. 1997).
110. “[W]hen a condition on a government benefit burdens a constitutional right,
it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12
F.3d 1558, 1562 (11th Cir. 1994). Government actions that threaten the right to bodily
integrity are subject to strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055,
1064 (6th Cir. 1998). The Supreme Court has invalidated voting requirements or conditions
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 that require the forfeiture of another fundamental right. See Dunn v. Blumstein, 405 U.S.
330, 346, 353 (1972) (finding that durational residency requirement for voter registration
placed unconstitutional condition on fundamental right to interstate travel).
111. The Fourteenth Amendment guarantees the right to bodily integrity, and this
right is violated if government officials are deliberately indifferent to the violation of the
plaintiff’s bodily integrity. See Missouri v. McNeely, 569 U.S. 141, 159 (2013); Guertin v.
Michigan, 912 F.3d 907, 919 (6th Cir. 2019) (recognizing that “individuals possess a
constitutional right to be free from forcible intrusions on their bodies against their will,
absent a compelling state interest”) (quoting Planned Parenthood Sw. Ohio Reg. v.
DeWine, 696 F.3d 490, 506 (6th Cir. 2012)).
112. “Involuntarily

subjecting

nonconsenting

individuals

to

foreign

substances with no known therapeutic value . . . is a classic example of invading the core
of the bodily integrity protection.” Guertin, 912 F.3d at 921–22.
113. Defendants require Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley to
satisfy unnecessary requirements for mail-in absentee voting that cannot be reasonably and
safely accomplished without severely threatening their right to bodily integrity. Because
in-person voting even more severely threatens to violate Plaintiffs’ bodily integrity by
subjecting them to the significant risk of contracting COVID-19, Defendants’ enforcement
of North Carolina’s requirements as to mail-in voting force Plaintiffs to forfeit their right
to bodily integrity in order to exercise their right to vote. Should Plaintiffs Clark, Cates,
Edwards, Priddy, and Bentley exercise their right to vote by mail under these
circumstances, Defendants will have knowingly subjected Plaintiffs to a foreign
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 substance—the novel coronavirus that causes COVID-19—without a therapeutic basis or
Plaintiffs’ consent.
114. Defendants, acting under color of state law, have deprived and will continue
to deprive Plaintiffs of their rights under the Fourteenth Amendment to the U.S.
Constitution, by requiring them to forfeit their right to bodily integrity in order to exercise
their right to vote.
115. For the foregoing reasons, Defendants have deprived and will continue to
deprive Plaintiffs of the right to be free of unconstitutional conditions on their rights to vote
in violation of the Fourteenth Amendment to the U.S. Constitution as enforced by 42
U.S.C. § 1983.
COUNT THREE
(SBE Defendants)
(Violation of the Organizational Plaintiffs’ Rights of Free Speech and Association in
violation of the First and Fourteenth Amendments to the Constitution of the United
States and 42 U.S.C. § 1983)
116. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
Complaint and the paragraphs in the counts below as though fully set forth herein.
117. The First Amendment to the United States Constitution, as applied to the
states through the Fourteen Amendment, prohibits an abridgment of the freedom of speech
or associational rights. Any burden, regardless of how slight, “must be justified by relevant
and legitimate state interests sufficiently weighty to justify the limitation.” Norman, 502
U.S. at 288– 89.

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 118. The restrictions on who can assist voters with completing and returning mailin absentee ballot request forms pursuant to N.C. Gen. Stat. § 163-230.2 effectively
prohibits the Organizational Plaintiffs and their members’ core political speech and
expressive conduct, which includes assisting voters with requesting and submitting
absentee ballot requests in an effort to engage potential voters and encourage them to vote.
These efforts are particularly important in the midst of the current public health crisis,
where for many voting by mail is crucial to protecting their health and the health of their
co-habitants and family members, and where the anticipated surge in individuals voting by
mail means many will be doing so for the first time and without prior experience. Because
of this prohibition, the Organizational Plaintiffs and their members will not be able to
effectively engage potentially eligible absentee voters, nor will they be able to effectively
facilitate those eligible voters requesting absentee ballots.
119. N.C. Gen. Stat. § 163-230.2 therefore chills the Organizational Plaintiffs’
speech and associational rights and does so without being narrowly-tailored to serve a
compelling state interest. The restrictions on who can assist voters with completing and
submitting absentee ballot requests are not justified by a state interest, especially in light
of the current COVID-19 pandemic, where allowing individuals to follow social-distancing
guidelines and self-quarantine is crucial to protecting their health and the health of their
co-habitants and family members.

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 COUNT FOUR
(SBE Defendants)
(Denial of Plaintiffs’ Right to Procedural Due Process in violation of the Fourteenth
Amendment to the Constitution of the United States and 42 U.S.C. § 1983)
120. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
Complaint and the paragraphs in the counts below as though fully set forth herein.
121. The Due Process Clause of the Fourteenth Amendment prohibits the
deprivation of “life, liberty, or property, without due process of law.” U.S. CONST. amend.
XIV § 1. “Where the government seeks to deprive someone of a liberty interest protected
by due process, due process demands that certain procedural safeguards be provided.”
United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). A liberty interest that is governed
by due process can be created by the Constitution or “may arise from an expectation or
interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
122. At a minimum, “procedural due process requires fair notice of impending
state action and an opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights,
739 F.3d 140, 146 (4th Cir. 2014) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
123. “Proper notice is ‘an elementary and fundamental requirement of due
process,’ and must be reasonably calculated to convey information concerning a
deprivation.’” Snider Int’l, 739 F.3d at 146 (quoting Mullane v. Cent. Hanover Bank & Tr.
Co., 339 U.S. 306, 314 (1950)); see also Presley v. City of Charlottesville, 464 F.3d 480,
490 (4th Cir. 2006).
124. As for the opportunity to be heard, “Mathews set forth the familiar three-step
inquiry for determining the adequacy of the opportunity to be heard: a balancing of the
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 private interest and the public interest, along with ‘the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards.’” Snider Int’l, 739 F.3d at 146 (quoting Mathews, 424
U.S. at 335). “Fundamental to due process is an opportunity to be heard—‘an opportunity
which must be granted at a meaningful time.’” Sciolino v. City of Newport News, Va., 480
F.3d 642, 653 (4th Cir. 2007) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
125. Absent exigent circumstances, due process requires pre-deprivation
procedures. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We have
described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be
given an opportunity for a hearing before he is deprived of any significant property
interest.’” (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in
original)); Sciolino, 480 F.3d at 653 (“An opportunity to clear your name after it has been
ruined by dissemination of false, stigmatizing charges is not ‘meaningful.’”).
126. North Carolina law gives all registered North Carolina voters statutory rights
to request and cast a mail-in absentee ballot that will be processed and counted, thereby
vesting them with liberty interests. Eligible, registered voters enjoy an “individual and
personal” right to vote under North Carolina law. Gill v. Whitford, 138 S. Ct. 1916, 1929
(2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)).
127. However, the SBE Defendants do not afford mail-in absentee voters any
notice of or opportunities to cure material defects in their absentee ballot request forms or
absentee ballots including their certificate envelopes that will result in rejection, thereby
depriving Plaintiffs and other registered North Carolina voters of their liberty interests in
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 requesting and casting a mail-in absentee ballot and exercising their fundamental right to
vote.
128. The risk of erroneous deprivation is high, as these eligible, registered North
Carolina voters are entitled by law to request an absentee ballot and to vote an absentee
ballot and, therefore, must be provided with an additional procedural safeguard, the
opportunity to timely cure any defect that would cause the absentee ballot request form’s
rejection or the absentee ballot’s rejection.
129. Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley all intend to vote by
mail-in absentee ballot, some for the first time, and may well make errors on their absentee
ballot request forms or absentee ballots and/or their certificate envelopes. Procedural due
process requires a cure procedure for these defects.
130. Defendants cannot advance any interests that outweigh the risk of erroneous
deprivation. The threat of disenfranchising Plaintiffs and their members far outweighs any
increased administrative burden in affording voters an opportunity to cure their absentee
ballot request form defects or their absentee ballot defects, including any defects on the
certificate envelope. Defendants’ interest in conducting fair election administration and
preserving election integrity would not be compromised in the slightest, and they would
satisfy their weighty interest in abiding by federal constitutional requirements.
131. For the foregoing reasons, SBE Defendants have violated and will continue
to violate Plaintiffs Clark, Cates, Edwards, Priddy, and Bentley’s federal constitutional
rights to procedural due process.
132. At all relevant times, Defendants have acted under color of state law.
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 133. Defendants have deprived and will continue to deprive Plaintiffs Clark,
Cates, Edwards, Priddy, Bentley and all voters seeking to vote by mail of their right to
adequate notice and a meaningful opportunity to be heard in order to cure deficiencies with
their absentee ballot request forms and their absentee ballots. This wholly fails to meet
these minimum requirements of procedural due process, as guaranteed to Plaintiffs by the
Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
COUNT FIVE
(SBE Defendants)
(Failure to Provide Reasonable Accommodations in Violation of Title II of the
Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.)
134. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
Compliant and the paragraphs in the counts below as though fully set forth herein.
135. Under Title II of the Americans with Disabilities Act, state and local
governments must not impose requirements on participation in public services, programs,
or activities, including voting, that screen out individuals with disabilities from fully and
equally enjoying those programs and must make reasonable modifications in policies,
practices, or procedures, including voting and election procedures, when the modifications
are necessary to avoid discrimination on the basis of disability.
136. Individuals who suffer a significant medical vulnerability that places them at
extremely high risk of serious bodily injury or death should they leave the confines of their
homes—including Plaintiffs Clark, Edwards, and Priddy, whose health conditions put them
at significant risk of severe illness or death should they contract COVID-19—have a
disability within the meaning of the ADA.
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 137. The CDC has deemed that individuals who suffer from the impairments that
Plaintiffs Clark, Edwards, and Priddy possess are “at higher risk for severe illness from
COVID-19.” Because of these high risks, Plaintiffs Clark, Edwards and Priddy are
substantially affected and unable to enjoy at least one major activity: their fundamental
right to vote.
138. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which has
rendered him highly susceptible to complications from COVID-19, a disease that often
causes severe respiratory distress. Plaintiff Edwards possesses type 1 Diabetes, a physical
impairment that has detrimental effects on her health and put her at risk of severe illness
from COVID-19. Plaintiff Priddy’s pre-existing conditions are physical impairments that
puts him at risk of severe illness from COVID-19. These physical impairments
substantially affect the major life activities of Plaintiffs Clark, Edwards, and Priddy
because they cannot safely exercise their fundamental right to vote without risking their
lives. Plaintiffs Clark, Edwards and Priddy should be provided meaningful access to the
ballot, either through a more accessible mail-in voting process or safer in-person voting
precautions.
139. Plaintiffs Clark, Edwards, and Priddy are unable to safely obtain two witness
signatures without ignoring the CDC’s guidelines and putting themselves at risk of
contracting COVID-19 and suffering serious health consequences, including death.
Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot
unless SBE Defendants eliminate the two-witness signature requirement.

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 140. Defendants’ failure and refusal to ensure that plaintiffs with disabilities are
given the ability to vote without risks of serious illness or death constitute a failure to make
a reasonable accommodation for those, such as Plaintiffs Clark, Edwards and Priddy,
whose health limits their ability to have contact with others in this time of public health
emergency created by COVID-19, in violation of the ADA.
141. The failure to accommodate these voters constitutes a condition on access to
the ballot box that has the effect of screening out such individuals from participating in the
November 3, 2020 general election, in violation of Title II of the Americans with
Disabilities Act.
COUNT SIX
(SBE Defendants)
(Failure to Provide Reasonable Accommodations in Violation of
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794)
142. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
Complaint and the paragraphs in the counts below as though fully set forth herein.
143. Under Section 504 of the Rehabilitation Act, federally funded programs,
including state and local programs related to elections and voting, must not discriminate
against individuals with disabilities and must make reasonable accommodations to allow
individuals with disabilities to access the federal funded program, activity, or service.
144. The State of North Carolina receives federal funding to conduct its elections.
Thus, Defendants are obligated to comply with the Rehabilitation Act.
145. Individuals who suffer a significant medical vulnerability that places them at
extremely high risk of serious bodily injury or death should they leave the confines of their
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 homes—including Plaintiffs Clark, Edwards, and Priddy whose health conditions put them
at significant risk of severe illness or death should they contract COVID-19—have a
disability within the meaning of the Rehabilitation Act.
146. The CDC has deemed that individuals who suffer from the impairments that
Plaintiffs Clark, Edwards, and Priddy possess are “at higher risk for severe illness from
COVID-19.” Because of these high risks, Plaintiffs Clark, Edwards and Priddy are
substantially affected and unable enjoy at least one major activity: their fundamental right
to vote.
147. Plaintiff Clark, who is 79 years old, suffers from severe COPD, which has
rendered him highly susceptible to complications from COVID-19, a disease that often
causes severe respiratory distress. Plaintiff Edwards possesses type 1 diabetes, a physical
impairment that has detrimental effects on her health and put her at risk of severe illness
from COVID-19. Plaintiff Priddy’s pre-existing conditions are physical impairments that
put him at risk of severe illness from COVID-19. These physical impairments substantially
affect the major life activities of Plaintiffs Clark, Edwards, and Priddy because they cannot
safely exercise their fundamental right to vote. Plaintiffs Clark, Edwards, and Priddy
should be provided meaningful access to the poll, either through a more accessible mail-in
voting process or safer in-person voting precautions.
148. Plaintiffs Clark, Edwards, and Priddy are unable to obtain two witness
signatures without ignoring the CDC’s guidelines and putting themselves at risk of
contracting COVID-19 and suffering serious health consequences, including death.

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 Plaintiffs Clark, Edwards, and Priddy would be unable to safely vote by absentee ballot
unless Defendants eliminate the two-witness signature requirement.
149. Defendants’ failure to ensure that plaintiffs with disabilities are given the
ability to vote without risks of serious illness or death constitutes a failure to make a
reasonable accommodation for those, such as Plaintiffs Clark, Edwards, and Priddy ,whose
physical impairments limit their ability to have contact with others in this time of public
health emergency created by COVID-19, in violation of the Rehabilitation Act.
150. The failure to accommodate these voters constitutes a condition on access to
the ballot box that has the effect of screening out such individuals from participating in the
November 3, 2020 general election, in violation of Section 504 of the Rehabilitation Act.
COUNT SEVEN
(SBE Defendants)
(Disparate Impact Claims in Violation of Title II of the Americans with Disabilities
Act, 42 U.S.C. §§ 12131, et seq.)
151. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
Complaint and the paragraphs in the counts below as though fully set forth herein.
152. Under Title II of the Americans with Disabilities Act, States cannot
promulgate standards, criteria, or methods of administration that have the effect of
discriminating against individuals based on their disabilities.
153. The Defendants are all public entities covered by Title II of the ADA.
154. The CDC has declared that individuals with co-morbidities such as Plaintiffs
Clark, Edwards, and Priddy are significantly more likely to risk serious illness or death if

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 they contract COVID-19. Defendants’ enforcement of current voting regulations will
unnecessarily expose Plaintiffs Clark, Edwards, and Priddy to an unjustifiable risk of
severe illness from COVID-19 in order to vote. This will result in unjustifiable disparate
impact upon Plaintiffs Clark, Edwards and Priddy if they attempt to vote because they will
be more harshly affected by COVID-19, in violation of the ADA.
155. Defendants will be unable to show that the current voting regulations are
justified by legitimate state interests.
156. The disparate impact that will result from enforcing these conditions has the
effect of prohibiting individuals with disabilities from participating in the November 3,
2020 general election, in violation of Title II of the ADA.
COUNT EIGHT
(SBE Defendants)
(Disparate Impact Claims in Violation of Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794)
157. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
Complaint and the paragraphs in the counts below as though fully set forth herein.
158. Section 504 of the Rehabilitation Act prohibits federally funded programs,
including state and local programs related to elections and voting, from enacting facially
neutral policies that have a discriminatory impact on persons within a protected class.
159. The State of North Carolina receives federal funding to conduct its elections.
Thus, Defendants are obligated to comply with the Rehabilitation Act.
160. The CDC has declared that individuals with co-morbidities such as Plaintiffs
Clark, Edwards, and Priddy are significantly more likely to risk serious illness or death if
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 they contract COVID-19. Defendants’ enforcement of current voting requirements will
unnecessarily expose Plaintiffs Clark, Edwards, and Priddy to an unjustifiable risk of
severe illness from COVID-19 in order to vote. This will result in disparate impact upon
Plaintiffs Clark, Edwards, and Priddy if they attempt to vote because they will be more
harshly affected by COVID-19, in violation of the Rehabilitation Act.
161. Defendants will be unable to show that the current voting regulations are
justified by legitimate state interests.
162. The disparate impact that will result from enforcing these conditions has the
effect of prohibiting individuals with disabilities from participating in the November 3,
2020 general election, in violation of Section 504 of the Rehabilitation Act.
PRAYER FOR RELIEF
Plaintiffs respectfully request that this Court:
(a)

Assume jurisdiction over this matter;

(b)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h) (imposing 25-day voter registration
deadlines); N.C. Gen. Stat. § 163-230.2(c), (e), and (e1) (imposing restrictions on absentee
ballot request assistance); N.C. Gen. Stat. § 163-231(a) (imposing the double-witness
certification requirement); N.C. Gen. Stat. § 163-227.6(c) (requiring uniform hours in
precincts); and N.C. Gen. Stat. § 163-42(b) (requiring a majority of poll workers to come
from the precinct in which they serve), and the Defendants’ failure to expand voter
registration via online portals available through DHHS services, failure to establish
contactless drop boxes for absentee ballots, and to establish mechanisms for requesting
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 absentee ballots by phone, email, and online, failure to establish mechanisms to cure
deficient absentee ballot requests and absentee ballots, failure to allow for submission of
FWAB ballots, failure to provide PPE to county boards of election for use during in-person
voting, and failure to establish a more accessible, centralized way in which voters and
advocates can monitor precinct consolidation (and thus advocate against harmful precinct
consolidations), in the context of the pandemic and for the November 3, 2020 general
election, taken individually or in combination, violate the First and Fourteenth
Amendments to the U.S. Constitution, as enforced through 42 U.S.C. § 1983;
(c)

Declare that Defendants’ administration and enforcement of N.C. Gen. Stat.

§ 163-230.2(c), (e), and (e1) (imposing restrictions on absentee ballot request assistance),
N.C. Gen. Stat. § 163-231(a) (imposing the double-witness certification requirement), and
failure to expand voter registration via online portals available through DHHS services,
establish contactless drop boxes for absentee ballots, establish mechanisms for requesting
absentee ballots by phone, email, and online, in the context of the pandemic and for the
November 3, 2020 general election, taken individually or in combination, violate the
unconstitutional condition doctrine and thereby Plaintiffs’ First and Fourteenth
Amendment right to bodily integrity, as enforced through 42 U.S.C. § 1983;
(d)

Preliminarily and permanently enjoin Defendants from administering and

enforcing in the 2020 general election and for the persistence of the COVID-19 pandemic:
i.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), imposing 25-day voter
registration deadlines;

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 ii.

N.C. Gen. Stat. § 163-230.2(c), (e), and (e1), imposing restrictions on
absentee ballot request assistance;

iii.

N.C. Gen. Stat. § 163-231(a), imposing the double-witness certification
requirement;

iv.

N.C. Gen. Stat. § 163-227.6(c), requiring uniform hours in precincts; and

v.

N.C. Gen. Stat. § 163-42(b), requiring a majority of poll workers to come
from the precinct in which they serve.

(e)

Preliminarily and permanently enjoin Defendants from violating Plaintiffs’

constitutional and federal statutory rights with respect to any election in the state during
the COVID-19 pandemic.
(f)

Order the SBE Defendants to extend the voter registration deadline in N.C.

Gen. Stat. §§ 163-82.6(d) and 163-82.20(g), (h), until 5:00pm on the last Saturday of early
voting and the DOT and DHHS Defendants to process voter registrations online and
received in their offices up until and including 5:00pm on the last Saturday of early voting.
(g)

Order Defendants to implement measures to ensure eligible North

Carolinians are able to vote absentee by mail, with respect to any election in the state during
the COVID-19 pandemic, including:
i.

Expanding voter registration via online portals available through DHHS
services;

ii.

Establishing contactless drop boxes for absentee ballots;

iii.

Establishing mechanisms for requesting absentee ballots by phone, email,
and online;
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 iv.

Establishing mechanisms to cure deficient absentee ballot requests and
absentee ballots;

v.

Establishing a mechanism for accepting FWAB ballots; and

vi.

Establishing a more accessible, centralized way in which voters and
advocates can monitor precinct consolidation.

(h)

Order the SBE Defendants to permit mail-in absentee voters to cast a

downloadable Federal Write-in Absentee Ballot (“FWAB”), if and only if their timelyrequested absentee ballot has not arrived in time for the voter to timely cast that ballot so
that it will be counted;
(i)

Order Defendants to implement a remedial plan to educate voters regarding

their options to register to vote, and obtain and cast a ballot.
(j)

Retain jurisdiction to monitor Defendants’ compliance with this Court’s

judgment;
(k)

Grant Plaintiffs their reasonable costs and attorneys’ fees incurred in

bringing this action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and as otherwise
permitted by law; and
(l)

Grant such other relief as this Court deems just and proper.

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 Dated: May 22, 2020.
Respectfully submitted,
/s/ Jon Sherman
Jon Sherman*
D.C. Bar No. 998271
Michelle Kanter Cohen*
D.C. Bar No. 989164
Cecilia Aguilera*
D.C. Bar No. 1617884
FAIR ELECTIONS CENTER
1825 K St. NW, Ste. 450
Washington, D.C. 20006
Telephone: (202) 331-0114
Email: jsherman@fairelectionscenter.org
mkantercohen@fairelectionscenter.org
caguilera@fairelectionscenter.org
*Pro hac vice application forthcoming

/s/ Allison Riggs
Allison J. Riggs (State Bar #40028)
Jeffrey Loperfido (State Bar #52939)
Southern Coalition for Social Justice
1415 West Highway 54, Suite 101
Durham, NC 27707
Telephone: 919-323-3380
Facsimile: 919-323-3942
Email: Allison@southerncoalition.org
jeff@southerncoalition.org
/s/ George P. Varghese
George P. Varghese*
WILMER CUTLER PICKERING HALE AND
DORR LLP
60 State Street
Boston, MA 02109
Telephone: (617) 526-6000
Fascimile: (617) 526-5000
Email: george.varghese@wilmerhale.com
Joseph J. Yu*
WILMER CUTLER PICKERING HALE AND
DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Telephone: (212) 230-8800
Fascimile: (212) 230-8888
Email: joseph.yu@wilmerhale.com

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