STATE OF NORTH CAROLINA
WAKE COUNTY
JABARI HOLMES, FRED CULP, DANIEL )
E. SMITH, BRENDON JADEN PEAY, and )
PAUL KEARNEY, SR.,
)
)
Plaintiffs,
)
v.
)
)
TIMOTHY K. MOORE in his official capacity )
as Speaker of the North Carolina House of )
Representatives; PHILLIP E. BERGER in his )
official capacity as President Pro Tempore of )
the 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 Chairman of the Senate )
Select Committee on Election for the 2018 )
Third Extra Session; THE STATE OF NORTH )
CAROLINA; and THE NORTH CAROLINA )
STATE BOARD OF ELECTIONS,
)
)
Defendants.
)
_____________________________________ )

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
18 CVS 15292

STATE DEFENDANTS’
RESPONSE TO LEGISLATIVE
DEFENDANTS’ MOTION FOR
ENTRY OF A CASE
MANAGEMENT ORDER

Defendants the State of North Carolina and the North Carolina State Board of Elections
(the “State Defendants”) hereby respond to the Legislative Defendants’ Motion for Entry of a
Case Management Order, which was served on the parties and emailed to the Trial Court
Administrator on April 10, 2020.
The State Defendants defer to the Court’s discretion as to whether an expedited pretrial
schedule is appropriate. Below, the State Defendants highlight a number of considerations that
impact the potential implementation of S.B. 824 and its photo ID requirement before the 2020
general election, including considerations arising from the current public health emergency. The
State Defendants have discussed these considerations with counsel for the Legislative

 Defendants and the Plaintiffs.
The Legislative Defendants propose a trial schedule with the hope of allowing enough
time after final decision—if S.B. 824 is upheld and the current injunction is lifted—to apply its
provisions to the November 2020 general election, for which voting is scheduled to begin on
September 4, 2020, less than 5 months from now.
As the Legislative Defendants note (Mot. at 6), in early March 2020, in the federal case
challenging the photo ID requirement, the State Defendants informed the Fourth Circuit Court of
Appeals that the elections boards would need to restart photo ID implementation activities—
which had been suspended in December 2019 pursuant to the federal court’s order—well in
advance of the start of absentee voting on September 4, 2020. The State Defendants have since
determined with more specificity that, without factoring in the likelihood of additional delays
resulting from the effects of the pandemic, which are discussed below, implementation activities
would need to begin by early July. This estimate is based solely on accommodating the State
Board’s activities in logistically preparing to administer an election with the new photo ID
requirement. It does not take into account voter-education activities that would also need to take
place to inform voters that the photo ID law that was enjoined for the primary election in March
would be enforced in the general election in November.
The early July estimate also does not take into account any measures that may be
necessary to deal with the reality that the State now faces in trying to prepare for and carry out
an election amid the disruption to regular activities that the COVID-19 pandemic has caused. At
present, it is unclear how long the social distancing requirements, limits on mass gatherings, and
other public health-related restrictions ordered or recommended by state, local, and federal
authorities will last, or in what ways they might be reduced over time. Agencies involved in

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 election administration, including the State and county boards and the Division of Motor
Vehicles (DMV), must begin consideration and planning now for administering the upcoming
general election consistent with some or all of these public health restrictions, while allowing for
the possibility of new or modified restrictions over time.
One challenge for local elections boards is ensuring that they will have enough poll
workers. The average age of poll workers in the state is 70, meaning that most poll workers are
in the category of individuals most at risk from the COVID-19 virus. Because of this and
because of the uncertainty associated with the ongoing public health emergency, elections
boards must work to identify and train alternate poll workers in the event that some poll workers
opt out or are directed to avoid the potential exposure that could come from working at polling
sites. The State Board must begin now to plan to reconfigure thousands of polling sites
statewide to allow for adequate distancing, sanitization, and minimal contact with surfaces that
would increase the chances of virus transmission, to protect both poll workers and voters. This
will require significant preparation, training of employees and volunteers, and procurement of
supplies to support these procedures.
State and county elections boards must also plan now for an expected massive increase
in the number of voters who may cast their votes by absentee ballot. The State Board estimates
that 40% or more of the state’s voters may cast their vote by absentee ballot—in comparison to
the approximately 4% of voters who have done so in election cycles in the recent past. To
prepare for an increase in absentee ballots of this magnitude, State and county elections boards
need to ensure the availability of absentee ballots, coordinate with postal services, including by
potentially establishing designated drop-off points for ballots to be mailed, and create new
processes to open, count, audit, and report election results for this volume of absentee ballots.

3

 Implementing a photo ID requirement in the midst of the evolving public health
emergency would require the State and county boards to undertake additional measures.
Restarting implementation of S.B. 824 would require meeting voters’ requests for free IDs and
documentation needed to obtain those IDs. However, the State Board, many county boards, and
other federal, state, and local government agencies are currently closed to the public or are
operating with reduced hours and staff. The same is true for DMV offices, which issue the most
common form of photo identification in the state.
In addition, public health requirements that may be in place would compel State and
county boards to undertake extra planning and training to implement the photo ID requirement
during in-person voting, which begins in mid-October. For example, if social-distancing and
face-mask requirements are in effect during in-person voting, State and county boards of
elections will need to have planned and trained for effective procedures to verify photo IDs,
provide assistance to voters lacking photo IDs, and assist voters in filling out provisional voting
applications and reasonable impediment affidavits, while abiding by the public health
requirements.
Prior to the public health emergency, the State Board had been planning to conduct inperson training for county boards and staff during its August conference. The county boards and
their staff would then provide in-person training to their poll workers in the weeks following the
State Board’s conference. This kind of in-person training will be particularly critical if S.B. 824
is in effect because it imposes administratively complex requirements on poll workers and
elections-board staff. The State Board is not aware of poll worker training having been
conducted remotely by any county board before, and is unsure of the efficacy of such remote
training—particularly in light of the fact that many communities and poll workers will face

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 technical hurdles to remote training. If social-distancing guidelines are in effect in the summer
and fall, the State Board will not be able to conduct in-person training during its August
conference and county staff will not be able to train poll workers in-person in September and
October.
In sum, the State and local boards are working to address a number of uncertainties and
logistical challenges associated with administering the November 2020 elections amidst the
COVID-19 pandemic. Implementing a photo ID requirement would add to these. The State
Defendants defer to the Court’s discretion on the trial schedule and stand ready to continue to
update the Court with any additional information requested.
If the Court orders an accelerated discovery and trial schedule similar to the one
proposed by the Legislative Defendants, the State Defendants request that the Court’s order
provide flexibility to account for the current and any subsequent orders of the North Carolina
courts that govern the use of remote hearings, depositions, and testimony.
Respectfully submitted this the 14th of April, 2020.
JOSHUA H. STEIN
Attorney General
________________________
Olga E. Vysotskaya de Brito
Amar Majmundar
Paul M. Cox
N.C. Department of Justice
114 W. Edenton St.
Raleigh, NC 27603
amajmundar@ncdoj.gov
ovysotskaya@ncdoj.gov
pcox@ncdoj.gov
Counsel for the State and the State Board
Defendants

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 CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing was served upon all parties by electronic
mail, by consent, addressed to the following:
Nicole Moss
Michael W. Kirk
David Thompson
Peter A. Patterson
Haley N. Proctor
Nicole Frazer Reaves
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, DC 20036
nmoss@cooperkirk.com
mkirk@cooperkirk.com
dthompson@cooperkirk.com
ppatterson@cooperkirk.com
hproctor@cooperkirk.com
nreaves@cooperkirk.com

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
Paul Brachman
Apeksha Vora
Jessica Morton
Paul, Weiss, Rifkind, Wharton &
Garrison, LLP
1285 Avenue of the Americas
New York, NY 10019-6064
pbrachman@paulweiss.com
avora@paulweiss.com
jmorton@paulweiss.com

Nathan A. Huff
Phelps Dunbar LLP
GlenLake One
4140 ParkLake Avenue, Suite 100
Raleigh, NC 27612
nathan.huff@phelps.com

Counsel for Plaintiffs

Counsel for Legislative Defendants

Respectfully submitted this the 14th day of April, 2020.

Paul M. Cox

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