STATE OF NORTH CAROLINA
!.!

THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

t i I

COUNTY OF WAKE
CASE NO. 18 CVS 15292
JABARI HOLMES,FRED CULP,i
)
DANIEL E. SMITH,BRENDON
JADEN PEAY,SHAKOYA CARRIE
BROWN, AND PAUL KEARNEY, SR., )
)
)
PLAINTIFFS,
)
) LEGISLATIVE DEFENDANTS
'MOTION
vs.
) TO REFFRAIN FROM ENTERING OR,
)
ALTERNATIVELY,DISSOLVE THE
TIMOTHY K. MOORE in his official
PRELIMINARY INJUNCTION
)
capacity as Speaker ofthe North Carolina )
N.C. R. Civ.P. 7,54(b)
)
House ofRepresentatives; PHILIP E.
BERGER in his official capacity as
)
President Pro Tempore ofthe North
)
)
Carolina Senate; DAVID R. LEWIS,
in his official capacity as Chairman of
)
the House Select Committee on Elections )
for the 2018 Third Extra Session; RALPH )
E. HISE, in his official capacity as
)
Senate
Select
Committee
)
Chairman ofthe
on Electionsfor the 2018 Third Extra
)
)
Session; THE STATE OF NORTH
CAROLINA; and THE NORTH
)
CAROLINA STATE BOARD OF
)
ELECTIONS,
)
)
DEFENDANTS.
)
)
)

 Legislative Defendants, pursuant to Rules 7 and 54(b) of the Rules of Civil Procedure,
hereby move the Court to refrain from entering a preliminary injunction in this case or,
alternatively, to dissolve that injunction if entered by the time the Court decides this motion.1 In
support of this motion, Legislative Defendants state as follows.
INTRODUCTION
Regardless ofthe outcome of this lawsuit, there will be a photo voter ID requirement in the
State of North Carolina. That is because the State's Constitution requires that "voters offering to
vote in person shall present photographic identification before voting." N.C. CONST. art. VI, §§
2(4), 3(2). To be sure, the Constitution also directs the General Assembly to "enact general laws
governing the requirements of such photographic identification, which may include exceptions."
Id. And S.B. 824, the implementing legislation the General Assembly enacted in December of
2018 to satisfy this mandate, currently is set to be preliminarily enjoined following the decision of
the Court of Appeals. See Holmes v. Moore, 840 S.E.2d 244(Ct. App. 2020).
But the rationale for the Court of Appeals'judgment has now been undermined. Key to the
court's decision was the General Assembly's rejection of public assistance IDs as valid voter ID
in S.B. 824. Indeed, the General Assembly's rejection of public assistance IDs pervaded the
Arlington Heights analysis the Court of Appeals performed to find that S.B. 824 likely was
motivated by racial discrimination. While Legislative Defendants disagree with the Court of
Appeals' decision, even taken on its own terms that decision requires that the preliminary
injunction in this case be dissolved for one compelling reason: the General Assembly has now

1 As of the date of this motion, the Court has not yet entered a preliminary injunction
following the Court of Appeals' decision. But whether the Court has done so by the time it decides
this motion should not affect the analysis. For convenience this motion generally discusses
dissolving the injunction, but that is meant to encompass both dissolving the injunction and not
entering it in the first place for the same reasons.
1

 passed by a 142-26 margin, and the Governor signed into law, H.B. 1169, which adds to the list
of qualifying voter ID "an identification card issued by a department, agency, or entity of the
United States government or this State for a government program of public assistance." 2020 N.C.
Sess. Laws 17 § 10. With the enactment of H.B. 1169, the General Assembly has adopted nearly
every "ameliorative" amendment proposed by S.B. 824's opponents during the legislative process,
and it also has addressed the key shortcoming identified by the Court of Appeals.
Under North Carolina law, the decision whether to dissolve a preliminary injunction "is
addressed to the discretion of the trial court." Barr•-Mullin, Inc. v. Browning, 108 N.C. App. 590,
598 (1993). The Court should exercise that discretion to dissolve the preliminary injunction (or
not enter it in the first place) now that the law has been amended to address the Court of Appeals'
chief concern.
BACKGROUND
1. In 2013, the General Assembly passed, and former Governor McCrory signed into law,
H.B. 589, an omnibus bill that changed numerous aspects of North Carolina election law,
including: (1) shortening the early voting period; (2) eliminating same-day registration; (3)
eliminating out-of-precinct voting; (4) eliminating pre-registration for 16 and 17-year-olds; and
(5)adding a voter ID requirement. The United States Court ofAppeals for the Fourth Circuit struck
down these provisions of H.B. 589, reasoning that the General Assembly had acted with racially
discriminatory intent by "restrict[ing] voting and registration in five different ways, all of which
disproportionately affected African Americans." North Carolina State Conference of NAACP v.
McCrory, 831 F.3d 204, 214 (4th Cir. 2016). The Fourth Circuit did not hold that the voter ID
provision would have been unconstitutional had it been enacted as a standalone bill. It did,
however, reason that the failure to include "public assistance IDs" in the list of qualifying voter

2

 ID "in particular was suspect, because a reasonable legislator would be aware ofthe socioeconomic
disparities endured by African Americans and could have surmised that African Americans would
be more likely to possess this form of ID." Id. at 227-28 (quotation marks omitted, brackets
deleted).
The State initially sought Supreme Court review of the McCrory decision, but while the
cert petition was pending Governor Cooper and Attorney General Stein took office and sought to
dismiss the petition. See North Carolina v. North Carolina State Conference ofNAACP, 137 S.
Ct. 1399 (2017) (Roberts, C.J., respecting denial of certiorari). The Supreme Court thereafter
denied certiorari, and the Fourth Circuit's decision therefore escaped review and remained
undisturbed.
2. Following the McCrory decision, the General Assembly once again took up voter ID.
But it did not simply enact new voter ID legislation. Instead, it sought the views of the People of
North Carolina, placing a constitutional amendment relating to photo voter ID on the November
2018 ballot. See 2018 N. C. Sess. Laws 128. The measure passed with 55% ofthe vote,see Official
General Election Results — Statewide, N.C. STATE BOARD OF ELECTIONS (Nov. 6, 2018),
https://bit.ly/3iKqUcC, and as a result the North Carolina Constitution now provides: "Voters
offering to vote in person shall present photographic identification before voting. The General
Assembly shall enact general laws governing the requirements ofsuch photographic identification,
which may include exceptions." N.C. CONST. art. VI, §§ 2(4), 3(2).
On November 27, 2018, in accord with this constitutional mandate, S.B. 824 was
introduced in the Senate. Its primary sponsors were Senators Ford, Krawiec, and Daniel, a
Democrat and two Republicans. During the legislative process,twenty-four proposed amendments
were introduced, two of which were withdrawn before they could be acted on. Of the twenty-two

3

 remaining amendments,thirteen were adopted, seven of which were proposed by Democrats. Nine
amendments either were tabled or failed. Six of those were introduced by Democrats. Thus, a
majority of the amendments (7 of 13) proposed by Democrats were accepted. The details of the
six Democratic amendments that failed are as follows:
First, Senator Clark sought to strike the requirement that free county board of elections IDs
be used only for voting purposes and to add them to the list of items that could be used to show
residency for purposes ofobtaining a DMV ID. See North Carolina General Assembly Amendment
A6, Senate Bill 824, https://bit.ly/3eRCkJq.
Second, Senator Van Duyn sought to (a) delay the date on which free county board of
elections IDs would be available from May 1 to July 1, 2019, and (b) extend the provision
expressly providing that not knowing about the voter ID requirement or failing to bring photo ID
to the polling place would be a reasonable impediment for elections held in 2019 to also cover
elections held in 2020. See North Carolina General Assembly Amendment A7, Senate Bill 824,
https://bit.ly/3gh5vFV.
Third, Senator Lowe sought to extend the one-stop early voting period to include the last
Saturday before an election. See North Carolina General Assembly Amendment A8, Senate Bill
824, https://bit.ly/3dTCi2B. While this amendment was tabled, in November 2019 the Governor
signed into a law a bill that passed the General Assembly by a 160-1 margin extending one-stop
early voting to include the last Saturday before an election. See 2019 N.C. Sess. Law. 239 § 2(a).
Fourth, Senator Woodard sought to expand the list of voter ID by amending the provision
allowing qualifying state or local government employee ID to instead allow qualifying federal,
state, or local government ID. See North Carolina General Assembly Amendment A9, Senate Bill
824, https://bit.ly/38mp7pG.

4

 Fifth, Representative Fisher sought to add qualifying K-12 ID to the list of voter ID. See
North Carolina General Assembly Amendment A9, Senate Bill 824, https://bit.ly/2BPVSPK.
Sixth, Representative Richardson sought to add to the list of voter ID "an identification
card issued by a branch, department, agency, or entity of the United States or this State for a
government program for public assistance." See North Carolina General Assembly Amendment
A13, Senate Bill 824, https://bit.ly/3ePUPOg. H.B. 1169, which passed the General Assembly by
a vote of 142-26, adopted this proposal almost verbatim, adding in the same statutory location "an
identification card issued by a department, agency, or entity of the United States Government or
this State for a government program of public assistance." 2020 N.C. Sess. Laws 17 § 10. Governor
Cooper signed the bill into law on June 12, 2020.
The General Assembly passed S.B. 824 on December 6, 2018. The Governor vetoed the
bill December 14, and the General Assembly overrode the veto on December 19.
3. Plaintiffs filed this lawsuit on December 19, 2018, the same day the General Assembly
enacted S.B. 824 into law. Plaintiffs' complaint included six claims for relief, alleging that S.B.
824 violated the North Carolina Constitution by:(1) intentionally discriminating on the basis of
race in violation of Article I, § 19;(2) unduly burdening the right to vote, in violation of Article I,
§ 19;(3) creating unlawful classifications with respect to the right to vote, in violation of Article
I,§ 19;(4) infringing on the right to participate in free elections, in violation of Article I, § 10;(5)
conditioning the right to vote on the possession of property, in violation of Article I, § 10; and (6)
infringing on the rights of petition, assembly, and free speech, in violation of Article I, §§ 12
and 14.

5

 Plaintiffs moved for a preliminary injunction, and Legislative Defendants moved to
dismiss. On July 19, 2019, this Court denied Plaintiffs' preliminary injunction motion and granted
Legislative Defendants' motion to dismiss as to all claims except the racial discrimination claim.
Plaintiffs appealed the denial of the preliminary injunction on their racial discrimination
claim, and the Court of Appeals reversed. The court reasoned that, given the "initially tainted
policy" of H.B. 589, the General Assembly should "bear the risk of nonpersuasion with respect to
[the General Assembly's] intent" in enacting S.B. 824. Holmes v. Moore, 804 S.E.2d 244, 261
(N.C. Ct. App. 2020). And the court further concluded that the General Assembly had not done
enough to sever the link between H.B. 589 and S.B. 824. Key to this conclusion was the General
Assembly's failure to include public assistance ID in the list of valid voter ID, despite being
criticized for the same exclusion in the H.B. 589 litigation. Indeed, the Court of Appeals relied on
this failure at every step of the intentional discrimination analysis under Arlington Heights v.
Metro. Hous. Corp., 429 U.S. 252(1977).
The Court of Appeals' reliance on the failure to include public assistance IDs is particularly
pronounced in its discussion of S.B. 824's legislative history, one of the four Arlington Heights
factors. "McCrory recognized," the Court of Appeals reasoned, "as particularly relevant to its
discriminatory-intent analysis, the removal of public assistance IDs in particular was suspect,
because a reasonable legislator could have surmised that African Americans would be more likely
to possess this form of ID." Holmes, 840 S.E.2d at 261 (quotation marks omitted, brackets and
ellipsis deleted). "[A]n amendment to S.B.824 that would have enabled the recipients of federal
and state public assistance to use their public assistance IDs for voting purposes," the court
continued, "was also rejected." Id. (quotation marks omitted, brackets and ellipsis deleted). "In
light ofthe express language in McCrory and at this stage ofthe proceeding," the court concluded,

6

 "the inference remains the failure to include public-assistance IDs was motivated in part by the
fact that these types ofIDs were disproportionately possessed by African American voters." Id.
Discussion of the exclusion of public assistance IDs also pervaded the court's discussion
ofthe other three Arlington Heights factors. First, with respect to S.B. 824's historical background,
the Court of Appeals explained that a pre-Shelby County version of H.B. 589 included "publicassistance IDs," while those IDs were absent from the "final versions of both H.B. 589 and S.B.
824." Holmes, 840 S.E.2d at 258. Second, with respect to the sequence of events leading to S.B.
824, the Court of Appeals stated that "Plaintiffs' forecasted evidence demonstrates a number of
amendments seeking to ameliorate the impacts of S.B. 824 were . .. rejected." Id. at 261. Of course,
the rejection of public assistance IDs was a key part of Plaintiffs' "forecasted evidence." See id.
(discussing affidavit of Representative Harrison regarding amendment to add public assistance
IDs). Third, with respect to the impact of S.B. 824,the Court of Appeals reasoned that"the General
Assembly's decision to exclude public-assistance and federal-government-issued IDs will likely
have a negative effect on African Americans because such types ofIDs are disproportionately held
by African Americans." Id. at 262(quotation marks omitted).
As a result of its Arlington Heights analysis the Court of Appeals held that Plaintiffs were
likely to succeed on the merits, and as a result of this holding the court further held that Plaintiffs
had established a threat of irreparable harm from "the denial of equal treatment in voting . . . based
on a law allegedly motivated by discriminatory intent." Id. at 266. The Court of Appeals therefore
remanded the case to this Court with instructions to enter a preliminary injunction against the voter
ID provisions of S.B. 824. Id. at 266-67.

7

 ARGUMENT
Under settled equitable principles, the preliminary injunction issued in this case should be
dissolved (or not entered in the first place). As an interlocutory ruling, a preliminary injunction "is
subject to revision at any time before the entry of final judgment." N.C. GEN. STAT. § 1A-1, 54.
"The question presented by the motion to dissolve is whether the injunction should continue in
effect," Shishko v. Whitley, 64 N.C. App. 668, 672(1983), and the decision whether "to dissolve
a temporary injunction is addressed to the discretion of the trial court," Barr-Mullin, Inc. v.
Browning, 108 N.C. App. 590, 598 (1993). As courts sitting in equity have recognized, "an
injunctive order may be modified or dissolved in the discretion of the court when conditions have
so changed that it is no longer needed or as to render it inequitable." Tobin v. Alma Mills, 192 F.2d
133, 136(4th Cir. 1951). Indeed "a court errs when it refuses to modify an injunction . . in light
of such changes." Agostini v. Felton, 521 U.S. 203, 215 (1997).
1. The amendment ofNorth Carolina law to include public assistance IDs in the list of valid
voter ID severs the final thread tying McCroiy's holding of racial discrimination to S.B. 824, and
it undermines the Court of Appeals' holding that Plaintiffs are likely to succeed on the merits of
their claim that S.B. 824 was enacted with racially discriminatory intent. This is demonstrated by
a review of the Arlington Heights factors in light of the addition of public assistance IDs.
Historical Background. The Court of Appeals emphasized the General Assembly's
decision to drop public assistance IDs from the list of approved voter ID in H.B. 589 in the wake
ofthe Supreme Court's decision in Shelby County and the continued exclusion of public assistance
IDs in S.B. 824. See Holmes, 840 S.E.2d at 258. To the extent these decisions evinced an intention
to discriminate on the basis of race (which, to be clear, Legislative Defendants dispute), the
decision to add public assistance IDs must evince a lack of racially discriminatory intent.

8

 Sequence of Events. The Court of Appeals' analysis of the sequence of events leading to
S.B. 824 led it to flip the burden of persuasion to the General Assembly, relying on the fact that
"sixty-one of the legislators who voted in favor of S.B. 824 had previously voted to enact H.B.
589." Id. at 260. The Court of Appeals further reasoned that the "Plaintiffs' forecasted evidence
demonstrates a number of amendments seeking to ameliorate the impacts of S.B. 824 were also
summarily rejected." Id. at 261.
The Court of Appeals' conclusion that a finding of past discrimination required the General
Assembly to disprove present discrimination was wrong. See Abbott v. Perez, 138 S. Ct. 2305,
2325 (2018). But even if that were not the case, the enactment of H.B. 1169 decisively broke from
H.B. 589. The Court of Appeals found it significant that sixty-one legislators voted for both H.B.
589 and S.B. 824. If that fact is significant, it must also be significant that every single legislator
who voted for S.B. 824 and was present for the vote on H.B. 1169 voted for the bill and its addition
of public assistance IDs. On the Court of Appeals' reasoning, the votes of these legislators to add
public assistance IDs are strong evidence against racially discriminatory intent.
The passage of H.B. 1169 also means that North Carolina's voter ID law now incorporates
nearly every amendment offered to "ameliorate the impacts of S.B. 824." Holmes, 840 S.E.2d at
261. As recounted above, Democrats offered thirteen non-withdrawn amendments during the
legislative debates over S.B. 824. Seven were adopted into S.B. 824 and included in the bill as
originally enacted. Several of the non-adopted amendments would have done nothing to
"ameliorate the impacts" of S.B. 824's voter ID provisions on voting—or would have done the
opposite. Senator Clark's proposed amendment dealt with the use offree county board of elections
voter IDs for non-voting purposes. Senator Van Duyn's amendment would have delayed the date
on which free county board IDs were available, making things worse for voters. It also would have

9

 specified that not knowing about the voter ID requirement or failing to bring photo ID to the polling
place would be a reasonable impediment for elections held in 2020, but that amendment would not
have changed the impact of S.B. 824 because a declared reasonable impediment must be accepted
unless it is false. See N.C. GEN. STAT. § 163-166.16(1). Elections officials have no authority to
second-guess the reasonableness of the claimed impediment.
Others of the proposed amendments have now been adopted into North Carolina law.
Senator Lowe sought to extend one-stop early voting to include the last Saturday before an
election, and that has now been accomplished. See 2019 N.C. Sess. Law 239 § 2(a). And
Representative Richardson's public assistance ID amendment was adopted nearly verbatim in
H.B. 1169.
That leaves only the amendments proposed by Senator Woodard and Representative
Fisher. Both dealt with the types of IDs that could be used as valid voter ID after going through a
legislatively prescribed qualification procedure. Senator Woodard's amendment would have
expanded the category of state or local government employee IDs to include all federal, state, or
local government IDs. And Representative Fisher would have expanded the category of student
IDs to include K-12 in addition to college IDs. Apart from federal and state public assistance
IDs—which now are included without having to go through a qualifying process—it is unclear
what types of additional IDs would have been included under Senator Woodard's amendment.
Federal employee IDs are one possibility, but there is no evidence that federal agencies would
submit to the qualification process Senator Woodard proposed that they would need to satisfy.
There also is no reason to believe that a substantial proportion of federal employees lack other
qualifying ID such as a drivers' license, or at a minimum the ready means to obtain such ID. There
also is a dearth of evidence that Representative Fisher's amendment to add K-12 IDs would have

10

 substantially impacted the number of voters with qualifying ID, much less enough to offset the
potential administrative difficulties involved in training poll workers to distinguish between K-12
IDs that have and have not made it through the qualification process.
In sum, North Carolina's voter ID laws now incorporate nearly every "ameliorative"
amendment proposed during the sequence of events leading to the passage of S.B. 824. This cuts
strongly against a finding a discriminatory intent.
Legislative History. The legislative history analysis has also now flipped, even taken on
the Court of Appeals' terms. If the exclusion of public assistance IDs "in particular was suspect,
because a reasonable legislator could have surmised that African Americans would be more likely
to possess this form of ID," Holmes, 840 S.E.2d at 261 (ellipsis omitted), then it must follow that
the addition of public assistance ID is particularly powerful in defeating any claim of racial
discrimination. Of course, Legislative Defendants dispute that the original decision to not add
public assistance IDs evinces racial discrimination, but what is important for purposes of this
motion is the effect of H.B. 1169 given the Court of Appeals' reasoning, which found the exclusion
of public assistance IDs to be an important factor in evaluating S.B. 824.
Impact of SB 824. Again, taking the analysis on the Court of Appeals' terms, if the
exclusion of public assistance IDs was "likely [to] have a negative effect on African Americans
because such types ofIDs are 'disproportionately held by African Americans'," id. at 262, it must
follow that the inclusion of public assistance IDs will likely have a positive effect on African
Americans.
2. Because the addition of public assistance IDs undermines Plaintiffs' likelihood of
success, it also makes continuing the preliminary injunction wholly inequitable. Without a
likelihood of success on the merits, Plaintiffs have zero claim to being threatened with irreparable

11

 harm. In the view ofthe Court of Appeals, the key harm Plaintiffs were threatened with was being
subject to a voter ID law that was motivated by racially discriminatory intent. See id. at 266. If
Plaintiffs are unlikely to succeed on the merits of their racial discrimination claim, that threatened
harm evaporates.
On the other hand, because Plaintiffs are unlikely to succeed on the merits the harm
threatened by entering and continuing the preliminary injunction is magnified."Any time a State
is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers
a form ofirreparable injury."Mcnylcid v. King, 567 U.S. 1301 (2012)(Roberts, C.J., in chambers)
(quotation marks omitted). The irreparable injury inflicted on North Carolina is particularly grave
here, because the preliminary injunction prohibits state officials from giving effect not only to S.B.
824 but also to the constitutional voter ID mandate that statute seeks to implement. Every election
in which S.B. 824 continues to be enjoined is one in which the North Carolina Constitution's
requirement that "[v]oters offering to vote in person shall present photographic identification
before voting" is frustrated. N.C. CONST. art. VI, §§ 2(4), 3(2). Now that the Court of Appeals'
principal concern with S.B. 824 has been remedied, equity demands that the preliminary injunction
in this case be dissolved.
CONCLUSION
For the foregoing reasons, this Court should refrain from issuing or dissolve the
preliminary injunction.

12

 Dated: July 9, 2020
/s/ Nicole J. Moss
COOPER & KIRK,PLLC
David H. Thompson*
Peter A. Patterson*
Nicole J. Moss (State Bar No. 31958)
Steven J. Lindsay*
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Telephone:(202)220-9600
Fax:(202)220-9601
nmoss@cooperkirk.com

Respec fully sub itted,

Nat'.an A. Huff(State Bar No. 40626)
PHELPS DUNBAR LLP
4140 ParkLake Avenue, Suite 100
Raleigh, North Carolina 27612
Telephone:(919) 789-5300
Fax:(919)789-5301
nathan.huff@phelps.com
State Bar No. 40626

Counselfor Legislative Defendants

*Admitted Pro Hac Vice

13

 CERTIFICATE OF SERVICE
I do hereby certify that I have on this 9th day of July, 2020, served a copy ofthe foregoing
Legislative Defendants' Motion to Refrain from Entering or, Alternatively, to Dissolve the
Preliminary Injunction by email to counsel for Plaintiffs and Defendants at the following
addresses:
For the Plaintiffs:

For the State Defendants:

Allison J. Riggs
Jeffrey Loperfido
Southern Coalition for Social Justice
1415 W. Highway 54, Suite 101
Durham,NC 27707
AllisonRiggs@southerncoalition.org
jeffloperfido@scsj.org

Olga Vysotskaya
Stephanie Brennan
Amar Majmundar
Paul Cox
North Carolina Department of Justice
114 W. Edenton St.
Raleigh, NC 27603
OVysotskaya@ncdoj.gov
Sbrennan@ncdoj.gov
amajmundar@ncdoj.gov
pcox@ncdoj.gov

Andrew J. Ehrlich
Paul Brachman
Richard Ingram
Apeksha Vora
Patrick Kessock
Ethan Merel
Jessica Morton
PAUL, WEISS,RIFKIND, WHARTON &
GARRISON, LLP
1285 Avenue of the Americas
New York, NY 10019-6064
aehrlich@paulweiss.com
pbrachman@paulweiss.com
ringram@paulweiss.com
avora@paulweiss.com
pkessock@paulweiss.com
emerel@paulweiss.com
jmorton@paulweiss.com

Nathan A. Huff(State Bar No.40626)
PHELPS DUNBAR LLP
4140 Parklake Avenue, Suite 100
Raleigh, North Carolina 27612
Telephone:(919)789-5300
Fax:(919) 789-5301
nathan.huff@phelps.com
Counselfor Legislative Defendants