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, ROBERT K. PRIDDY II,
SUSAN SCHAFFER, and
WALTER HUTCHINS,
Plaintiffs,
v.
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

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1:20CV457

Case 1:20-cv-00457-WO-JLW Document 169 Filed 10/14/20 Page 1 of 41

 TRANSPORTATION, J. ERIC
BOYETTE, in his official
capacity as TRANSPORTATION
SECRETARY, THE NORTH
CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
and MANDY COHEN, in her
official capacity as
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Defendants.
and
PHILIP E. BERGER, in his
official capacity as
PRESIDENT PRO TEMPORE OF THE
NORTH CAROLINA SENATE, and
TIMOTHY K. MOORE, in his
official capacity as SPEAKER
OF THE NORTH CAROLINA HOUSE
OF REPRESENTATIVES,
Defendant-Intervenors.

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MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court are Defendant-Intervenors
Philip E. Berger and Timothy K. Moore’s (“Legislative
Defendants”) Motion for All Writs Act Relief, (Doc. 154), and
Plaintiffs’ Motion for Affirmative Relief, (Doc. 156). This
court finds that the North Carolina State Board of Elections
improperly used this court’s Memorandum Opinion and Order of

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 August 4, 2020, in setting out its revised Numbered Memo
2020-19, thereby frustrating and circumventing the alreadyissued preliminary injunction order, (Doc. 124), over which this
court has continuing jurisdiction. This court will grant
Defendant-Intervenors’ motion in part to enjoin the State Board
of Elections’ elimination of the witness requirement.
Plaintiffs’ motion will be denied.
I.

FACTUAL BACKGROUND
On August 4, 2020, this court issued a preliminary

injunction order, (Memorandum Opinion and Order, (“August
Order”) (Doc. 124)), that “left the One-Witness Requirement in
place, enjoined several rules related to nursing homes that
would disenfranchise Plaintiff Hutchins, and enjoined the
rejection of absentee ballots unless the voter is provided due
process.” (Id. at 3.) This court’s August Order is still in
effect, as no party has appealed this court’s grant of a
preliminary injunction recognizing and ensuring voters’ Due
Process rights.
A.

Communications Prior to August 21, 2020

Shortly after this court issued the August Order, in a
letter dated August 12, 2020, Plaintiffs communicated with
Defendant State Board of Elections (“SBE”) officials regarding
Plaintiffs’ understanding that this court’s August Order would
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 require any “law or rule” that SBE issued to “provide voters
with timely notice of any issues that would cause their ballot
to be rejected, as well as an opportunity to be heard such that
voters may cure those deficiencies1 and have their votes properly
counted.” (Doc. 148-2 at 2.)2
In particular, Plaintiffs advised Defendant SBE officials
of “what, in Plaintiffs’ view, [were] the required elements of
the law or rule required by the Court in order to satisfy due
process.” (Id. at 3.)
First, Plaintiffs requested “[p]rompt identification and
notice,” for “those issues easily identified on the face of the
absentee ballot envelope . . . .” (Id.) For those issues,
“[C]ounty board of election staff members should identify and
provide notice to the voter of any defect that [would] prevent
their vote from being counted within 1 business day of receiving
the ballot.” (Id.) Plaintiffs requested that notice occur

This statement by Plaintiffs misstates this court’s order.
That order is limited to requiring the SBE to provide “due
process as to those ballots with a material error that is
subject to remediation.” (August Order (Doc. 124) at 187.) The
August Order did not require provision of a cure for every
deficiency.
1

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
2

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 “before the next county board of elections meeting in which the
board approves and rejects ballots,” which Plaintiffs indicated
in its letter, would “start 5 weeks before Election Day.” (Id.)
Second, Plaintiffs requested “[n]otice by all means
reasonably available,” specifically of “a material defect and
the method of curing that defect.” (Id.) “Notice of the material
defect and method of curing it should also be provided on the
online tracking tool (which is required under H.B. 1169
. . . ).” (Id.) Plaintiffs further said that “[s]uch outreach
should include looking for contact information beyond that
provided by the voter on the absentee application envelope,
including, at least, using mail, telephone, and email to the
extent that information is available from voter registration
forms and on the SEIMS [statewide election information
management] database.” (Id.)
B.

Release of Memo 2020-19

In response, on August 21, 2020, SBE officials released
guidance for “the procedure county boards must use to address
deficiencies in absentee ballots.” (Numbered Memo 2020-19 (“the
original Memo 2020-19” or “the original Memo”) (Doc. 148-3 at
2).) This guidance instructed county boards regarding multiple
topics. First, it instructed county election boards to “accept
[a] voter’s signature on the container-return envelope if it
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 appears to be made by the voter . . . [a]bsent clear evidence to
the contrary,” even if the signature is illegible. (Id.)
Next, the original Memo sorted ballot deficiencies into two
categories: curable and uncurable deficiencies. (Id. at 3.)
Under Memo 2020-19, a ballot could be cured via voter affidavit
alone if the voter failed to sign the certification or signed in
the wrong place. (Id.) A ballot error could not be cured in the
case of all other listed deficiencies, including a missing
signature, name, or address of the witness; an incorrectly
placed witness or assistant signature; or an unsealed or
re-sealed envelope. (Id.) Counties were required to notify
voters regarding any ballot deficiency that could be cured
within one day of the county identifying the defect. After a
voter was notified of the deficiency, the voter was required to
return a cure affidavit by Thursday, November 12. (Id. at 4.) In
the case of an incurable defect, a new ballot could be issued
only “if there [was] time to mail the voter a new ballot . . .
[to be] receive[d] by Election Day.” (Id. at 3.) If a voter who
submitted an uncurable ballot was unable to receive a new
absentee ballot in time, he or she would have the option to vote
in person on Election Day.

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 C.

Communications Following August 21, 2020

Soon thereafter, on August 26, 2020, Plaintiffs sent the
SBE and Executive Defendants a letter expressing concern about
the efficacy of Memo 2020-19, claiming that the protections it
laid out “[did] not satisfy due process as required by the
Court’s [August] Order.” (Doc. 148-4 at 2.) In this letter,
Plaintiffs listed several Due Process concerns about the cure
process guidance. These concerns included: (1) the lack of a
timeframe for reviewing absentee ballots for deficiencies, (2)
“unclear procedures for voter notification” if a cure is
necessary, (3) the lack of a remote option for voters to
“contest the disapproval of their deficient ballot,” (4) a lack
of “any indication as to how the cure process will be . . .
monitored and enforced,” (5) the Memo’s failure to “clearly
prohibit counties from implementing a signature verification
process,” and (6) ambiguity around the acceptability of unique
electronic signatures. (Id. at 2-4.)3
After explaining these concerns, Plaintiffs noted that
since “counties will start mailing absentee ballots on
September 4, 2020 . . . Plaintiffs may find it necessary to file

Again, while Plaintiffs’ requests may be appropriate
policy considerations, these processes seem to contemplate a
cure for all cases, a remedy this court did not, and does not,
deem required by Due Process. See discussion supra at 4 n.1.
3

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 an affirmative motion to enforce the injunction should
Defendants fail to implement an adequate law or rule by
[September 4th].” (Id. at 4.) However, no motion was filed, and
nothing further was brought to the attention of this court prior
to September 4th.
D.

Revision of Numbered Memo 2020-19

The State began issuing ballots on September 4, 2020,
marking the beginning of the election process. Over two weeks
later, on September 22, the SBE attempted to revise its original
guidance to address Plaintiffs’ remaining concerns. (Numbered
Memo 2020-19 (“the Revised Memo” or “Revised Memo 2020-19”)
(Doc. 143-1).) 153,664 absentee ballots were received by the SBE
between September 4 and September 22. Absentee Data, N.C. State
Bd. of Elections (Sept. 22, 2020). The SBE cited the August
Order as “consistent with” its revisions, (Notice of Filing
(Doc. 143) ¶ 1), which set forth a variety of new policies not
implemented in the original Memo 2020-19. (See Revised Memo
(Doc. 143-1).) The revised guidance extended the deadline for
absentee ballots to be received out to November 12, 2020. (Id.
at 4.) It also altered which ballot deficiencies fell into the
curable and uncurable categories: unlike Memo 2020-19, the
Revised Memo advised that ballots missing a witness or assistant
name or address, as well as ballots with a missing or misplaced
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 witness or assistant signature, could be cured via voter
certification. (Id. at 2.) This certification could be filed
through November 12, 2020, eight days after Election Day. (Id.
at 4). The Executive Defendants filed notice of this revised
guidance with the court on September 28, 2020. (Notice of Filing
(Doc. 143), only one day before the processing of absentee
ballots was scheduled to begin. ((Doc. 148) at 11.)
E.

Consent Judgment in North Carolina Alliance for
Retired Americans v. North Carolina State Board of
Elections

On August 10, 2020, the North Carolina Alliance for Retired
Americans (“NC Alliance Intervenors”), who are DefendantIntervenors in two cases presently before this court; Moore v.
Circosta, No. 1:20CV911 (M.D.N.C. filed Oct. 5, 2020), and Wise
v. N.C. State Bd. of Elections, No. 1:20CV912 (M.D.N.C. filed
Oct. 5, 2020); filed an action against the SBE in North
Carolina’s Wake County Superior Court. (Moore v. Circosta, No.
1:20CV911 (Doc. 68-1) at 15.) They challenged, among other
voting rules, the witness requirement for mail-in absentee
ballots and rejection of mail-in absentee ballots that are
postmarked by Election Day but delivered to county boards more
than three days after the election. (Id.) On August 12, 2020,
Philip Berger and Timothy Moore, who are also Plaintiffs in
Moore, became parties to the state action as intervenor-9-

Case 1:20-cv-00457-WO-JLW Document 169 Filed 10/14/20 Page 9 of 41

 defendants on behalf of the North Carolina General Assembly.
(Id. at 16.)
On September 22, 2020, the same day the Revised Memo was
released, SBE and NC Alliance filed a Joint Motion for Entry of
a Consent Judgment with the superior court. (Id.) Philip Berger
and Timothy Moore were not aware of this “secretly-negotiated”
Consent Judgment, (Wise v. N.C. State Bd. of Elections, No.
1:20CV912 (Doc. 43) at 7), until the parties did not attend a
previously scheduled deposition, (1:20CV457 (Doc. 168) at 73.)
Among the terms of the Consent Judgment, SBE agreed to
extend the deadline for receipt of mail-in absentee ballots
mailed on or before Election Day to nine days after Election
Day, to implement the cure process established in the Revised
Memo 2020-19, and to establish separate mail-in absentee ballot
“drop off stations” at each early voting site and county board
of elections office which were to be staffed by county board
officials. (Doc. 68-1 at 16.)
In arguing that the North Carolina Superior Court should
approve and enter the Consent Judgment, SBE cited this court’s
August Order from Democracy. SBE argued that a cure procedure
for deficiencies related to the witness requirement were
necessary because “[w]itness requirements for absentee ballots
have been shown to be, broadly speaking, disfavored by the
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 courts,” (id. at 26), and that “[e]ven in North Carolina, a
federal court held that the witness requirement could not be
implemented as statutorily authorized without a mechanism for
voters to have adequate notice of and [an opportunity to] cure
materials [sic] defects that might keep their votes from being
counted.” (Id. at 27.) SBE argued that, “to comply with the
State Defendants’ understanding of the injunction entered by
Judge Osteen, the State Board directed county boards of
elections not to disapprove any ballots until a new cure
procedure that would comply with the injunction could be
implemented,” (id. at 30), and that ultimately, the cure
procedure introduced in the Revised Memo 2020-19 as part of the
consent judgment would comply with this injunction. (Id.)
On October 2, 2020, the Wake County Superior Court entered
the Stipulation and Consent Judgment. (Doc. 166-1.) Among its
recitals, which Defendant SBE drafted and submitted to the judge
as is customary in state court, (Moore v. Circosta, No.
1:20CV911 (Doc. 70) at 90-91), the Wake County Superior Court
noted this court’s preliminary injunction in Democracy, finding,
WHEREAS, on August 4, 2020, the United States District
Court for the Middle District of North Carolina
enjoined the State Board from the “disallowance or
rejection . . . of absentee ballots without due
process as to those ballots with a material error that
is subject to remediation.” Democracy N.C. v. N.C.
State Bd. of Elections, No. 1:20-cv-00457-WO-JLW
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 (M.D.N.C. Aug. 4, 2020) (Osteen, J.). ECF 124 at 187.
The injunction is to remain in force until the State
Board implements a cure process that provides a voter
with “notice and an opportunity to be heard before an
absentee ballot with a material error subject to
remediation is disallowed or rejected.” Id.
(Id. at 19; (Doc. 166-1) at 5.) Additional facts will be
addressed in the analysis where necessary.
F.

Current Requests for Relief

This court requested a status conference on Wednesday,
October 7, 2020. (Doc. 146.) Only after this point did
Plaintiffs file a motion with this court, (Doc. 147), requesting
enforcement of a preliminary injunction on the basis of the
August Order, claiming that even the Revised Memo failed to meet
Due Process requirements as outlined by the August Order. (Pls.’
Mem. of Law in Supp. of Mot. to Enforce Order Granting in Part
Prelim. Inj., or, in the Alternative, Mot. for Clarification,
and to Expedite Consideration of Same (“Pls.’ Br. on Mot. to
Enforce”) (Doc. 148) at 13.) As noted previously, the processing
of absentee ballots had already started on September 29, 2020.
(Id. at 11.) Both Legislative Defendants and Plaintiffs
subsequently filed motions for affirmative relief: Legislative
Defendants seek injunction of the Revised Memo 2020-19, (Doc.
154), while Plaintiffs seek injunction of both Memos and further
guidance from the court on proper election procedure, (Doc.

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 156). Only the Executive Defendants have argued, in their
Response to Plaintiffs’ Motion to Enforce Order (“Exec. Defs.’
Resp.”) (Doc. 151) at 2) that the Revised Memo 2020-19 is the
correct operative guidance, claiming it was necessary in order
to comply with this court’s August Order.
II.

ANALYSIS
A.

The Preliminary Injunction Order

Before turning to analysis of the pending motions, this
court will address an issue with the parties’ use of certain
language from the August Order.
In an effort to provide context for the August Order and to
perhaps avoid additional future litigation, this court provided
certain observations as to what might be required in relation to
voting processes during the COVID-19 pandemic in light of this
court’s order. (See August Order (Doc. 124) at 3-6.) After
careful review of the pleadings and attachments filed following
the issuance of that Order, it appears to this court that
language was either misunderstood or has been misconstrued. The
language has been cited in support of unreasonable demands,
inaction, and acts that appear to ignore the rule of law. This
court does not make policy decisions for legislative branches or
executive offices, nor were its observations intended to
substitute for the rule of law.
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 In light of this concern, the court has considered striking
those findings. This court, instead, notes for clarification
that those comments were not, and are not, intended to suggest
that the circumstances created by COVID-19 can or should be used
to disregard the rule of law or the Constitution. Nor were those
statements intended to suggest a source of authority for acts or
requests not otherwise permitted by the rule of law.
B.

Sufficiency of the Original Memo 2020-19

Plaintiffs’ Motion for Affirmative Relief, (Pls.’ Mot. for
Affirmative Relief (Doc. 156)), asks this court to find that
both the original Memo 2020-19 and the Revised Memo 2020-19 are
insufficient to respond to this court’s August Order. (Id. at
16, 34.) Though the guidance contained in the original Memo
2020-19 may not be perfect, it sufficiently complied with this
court’s August Order. Even if the original Memo 2020-19 fell
short, reliance on this court’s order for further election rule
changes after September 4, 2020 – as in the Revised Memo 2020-19
– is not appropriate under the facts and circumstances of this
case.
1.

Due Process

This court’s August Order “enjoined the rejection of
absentee ballots unless the voter is provided due process.”
(August Order (Doc. 124) at 3.) The August Order noted that
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 “[t]here are currently no procedures in place statewide that
would either notify a voter that their absentee ballot has a
material error nor allow such a voter to be heard in challenging
such a rejection.” (Id. at 157-58.) The injunction ordered that
the SBE was prohibited from “the disallowance or rejection . . .
of absentee ballots without Due Process as to those ballots with
a material error that is subject to remediation.” (Id. at 187.)
This court finds that the original Memo 2020-19, issued by
the SBE on August 21, 2020, (Doc. 148-3), sufficiently addressed
this court’s concerns regarding Due Process. The guidelines4 set
out by the original Memo 2020-19 sufficiently addressed errors
“subject to remediation,” (Doc. 124 at 187), also referred to as
curable defects.5 Memo 2020-19 laid out statewide procedures by
which absentee ballots with reasonable, minor deficiencies could
be cured by voters. If a voter failed to sign the certification,

Plaintiffs argue that the Numbered Memos do not qualify as
rules or laws “independently enforceable beyond the discretion
of the SBE,” and are therefore insufficient to satisfy this
court’s August Order. (Pls.’ Br. on Mot. to Enforce (Doc. 148)
at 14-15.) This court disagrees: the SBE was directly charged
with remedying the Due Process concerns identified in the
court’s August Order. The Numbered Memos served as binding
guidance which county boards were “required to follow.” (Exec.
Defs.’ Resp. (Doc. 151) at 9.) This is sufficient for the
purposes of this court’s August Order.
4

This court does not consider a missing witness signature a
mere curable defect. See discussion infra, Part II.B.1.
5

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 or signed in the wrong place, the ballot could be cured with an
affidavit from the voter. (Original Memo 2020-19 (Doc. 148-3) at
2.)
On the other hand, if a deficiency led to the ballot being
spoiled “because the missing information [came] from someone
other than the voter[,]” such as the absence of a witness
signature, then the county board was obligated to “reissue a
ballot along with a notice explaining the county board office’s
action.” (Id. at 3.) This allows voters to respond to ballot
rejections and requires prompt notification of voters if their
ballots contain uncurable errors.
Plaintiffs present several critiques of the SBE’s guidance
in both versions of Numbered Memo 2020-19. First, they note that
Memo 2020-19 does not “specify a timeline by which counties must
review absentee ballot applications for deficiencies.” (Pls.’
Br. on Mot. to Enforce (Doc. 148) at 18-19.) Second, Plaintiffs
emphasize that the original Memo 2020-19 does not go the extra
step of requiring counties to contact voters with ballot
deficiencies via phone number and email rather than via

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 traditional mail only.6 (Id. at 20-21.) Finally, Plaintiffs claim
that both versions of Memo 2020-19 fall short by failing to
provide voters with remote opportunities to attend county
canvasses and remedy material errors. (Id. at 24.) Though these
complaints might have some value, they do not undermine the
overall adequacy of Memo 2020-19 in addressing this court’s
original Due Process concerns. Due Process does not guarantee
that every attempted ballot is counted – rather, Due Process
ensures that an individual voter will receive notice and an
opportunity to be heard in certain circumstances. It does not,
and cannot, be used to displace the state’s election statutes or
delay the election.
Based on these criticisms, Plaintiffs urge this court to
adopt certain provisions within the Revised Memo in a piecemeal
manner. (Pls.’ Mot. for Affirmative Relief (Doc. 156) at 10-14).
Plaintiffs urge the court to “order the State Board of Elections
to [implement specific, listed reforms]” in the name of Due

Regardless of the merits of Plaintiffs’ grievance
regarding the shortcomings of mail-only notifications, the
original Memo 2020-19 still meets the bar set out in this
court’s August Order. Furthermore, as this concern was not
raised with this court prior to the start of the election, and
in light of Purcell v. Gonzalez, 549 U.S. 1 (2006), this court
finds Plaintiffs’ delay a serious and confounding issue that
would merit denial of additional injunctive relief for that
reason alone.
6

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 Process. (Id. at 34.) Despite Plaintiffs’ request, this court’s
role does not entail picking and choosing those electoral
reforms it views as wise from a policy perspective. This court
may only adjudicate whether the bar of Due Process has been met,
which this court finds it has under the original Memo 2020-19.
Though the original Memo may not perfect the absentee process,
it addresses this court’s Due Process concerns as expressed in
the August Order, particularly as to notice and an opportunity
to be heard prior to rejection. This court’s August Order, (Doc.
124), was never intended to create insurmountable hurdles for
the SBE’s rejection of an absentee ballot under any
circumstances. Even if the original Memo 2020-19 were
insufficient, the application of Revised Memo 2020-19 in its
stead cannot be justified on the basis of this court’s August
Order.
2.

Delay in Seeking Injunctive Relief

Moreover, Plaintiffs have delayed too long in seeking
enforcement of the order and rejection of both versions of Memo
2020-19. This undermines Plaintiffs’ case for further
affirmative relief at this juncture. Some courts have found that
delay in seeking injunctive relief is a clear indicator of “an
absence of the kind of irreparable harm required to support a
preliminary injunction.” Citibank, N.A. v. Citytrust, 756 F.2d
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 273, 276 (2d Cir. 1985). The Fourth Circuit has taken a less
exacting approach, following the Ninth and Tenth Circuits in
weighing delay as a non-dispositive factor in the granting of
preliminary injunctive relief. See Candle Factory, Inc. v. Trade
Assocs. Grp., Ltd., 23 F. App’x 134, 138 n.2 (4th Cir. 2001)
(citing Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. &
Rehab. Servs., 31 F.3d 1536 (10th Cir. 1994); Lydo Enters., Inc.
v. City of Las Vegas, 745 F.2d 1211, 1213, 1213–14 (9th Cir.
1984).)
In different circumstances, the delay by Plaintiffs of
nearly six weeks - from the issuance of the original Memo
2020-19 on August 21 to the filing of this motion to enforce
order on September 30 – might not weigh as heavily in the
court’s analysis. Here, however, the extraordinary circumstances
at hand bring Purcell considerations into the delay analysis as
well. Purcell v. Gonzalez, 549 U.S. 1 (2006). Plaintiffs
acknowledged in August the need for any and all revisions to be
made prior to September 4, when ballots were released. (See
(Doc. 148-4) at 4 (“As counties will start mailing absentee
ballots on September 4, 2020 and thus begin receiving them
shortly thereafter, Plaintiffs may find it necessary to file an
affirmative motion to enforce the injunction should Defendants
fail to implement an adequate law or rule by this date.”).) No
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 further guidance was issued by the SBE by September 4. However,
Plaintiffs still failed to file any such motion with the court
until over 30 days after the issuance of the original Memo and
their August 26 letter to the SBE. (Doc. 147.) As to this delay,
additional facts further undermine any argument by Plaintiffs
that they acted diligently and promptly. As noted earlier, none
of the parties to this case notified this court or requested
relief following the issuance of the original August 21 Memo
2020-19. Instead, on September 28, 2020, the SBE filed its
Notice of Filing, (Doc. 143), alleging the Revised Memo 2020-19
was “consistent with the [court’s] Order.” (Id. at 1.)
Plaintiffs did not respond to the Notice in any fashion. On
September 30, 2020, this count entered its order stating that
Revised Memo 2020-19 was not consistent with the August Order.
(Doc. 145 at 3.) It was on that date, September 30, and after
this court’s order, that Plaintiffs filed a motion requesting
additional relief. (Doc. 147.) Plaintiffs’ motion requesting
additional relief was filed 24 days after the start of the
election, after absentee ballots had been received with material
defects, and the day before absentee ballots were subject to
processing.
Given the obligation of federal courts to avoid changing
election rules whenever possible under Purcell, see discussion
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 infra Part II.B.2, Plaintiffs’ decision to wait until after
September 4 to file their motion constituted substantial delay
that, in this instance, precludes the granting of additional
injunctive relief to Plaintiffs.
C.

All Writs Act Relief

Legislative Defendants request that this court
“affirmatively enjoin the issuance and enforcement of the
[Revised Memo] under the All Writs Act,” (Doc. 155 at 22-23),
or, “at minimum . . . restrain the NCSBE from relying on this
Court’s [August Order] to issue the [Revised Memo 2020-19].”
(Doc. 150 at 6.) This court will grant Legislative Defendants’
motion in part: while Purcell counsels against enjoining the
entirety of the Revised Memo, this court finds the All Writs Act
(“AWA”) authorizes this court to enjoin the SBE’s effective
elimination of the witness requirement as a remedial action
under this court’s preliminary injunction order.
Though this court will not enjoin the entirety of the
Revised Memo, it will enjoin the witness signature cure process
created by the Revised Memo. The cure process provided for
witness signatures is inconsistent with this court’s August
Order, which found the state’s statutory witness requirement
constitutional. (August Order (Doc. 124) at 102.) This court
found that the witness requirement was constitutional while the
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 absence of Due Process procedures was unconstitutional. (Id.)
Using the court’s Due Process language to effectively override
the legislative witness requirement, after this court upheld it
– in the supposed name of Due Process - is an unacceptable
misuse of the remedy created by this court’s order. The State
Board’s mischaracterization of this court’s injunction in order
to obtain contradictory relief in another court frustrates and
circumvents this court’s August Order, (Doc. 124). Remedial
action under the AWA is necessary to prevent frustration and
misuse of this court’s preliminary injunction.
1.

Legal Standard Under the All Writs Act

The All Writs Act provides that “[t]he Supreme Court and
all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). The Supreme Court has “repeatedly
recognized the power of a federal court to issue such commands
under the All Writs Act as may be necessary or appropriate to
effectuate and prevent the frustration of orders it has
previously issued[.]” United States v. New York Tel. Co., 434
U.S. 159, 172 (1977). However, as the All Writs Act is to be
used “sparingly and only in the most critical and exigent
circumstances,” Wis. Right to Life, Inc. v. Fed. Election
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 Comm’n, 542 U.S. 1305, 1306 (2004) (internal quotation marks and
citations omitted), it is often used when a court is seeking to
enforce its previous order in the face of blatant violations.
See, e.g., SAS Inst., Inc. v. World Programming Ltd., 952 F.3d
513, 521 (4th Cir. 2020), petition for cert. docketed (U.S.
Sept. 9, 2020) (No. 20-304) (applying the AWA where a party has
“frustrat[ed] . . . orders [the court] has previously issued”);
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir.
2004) (finding that obtaining an AWA injunction requires “some
ongoing proceeding, or some past order or judgment, the
integrity of which is being threatened by someone else’s action
or behavior”); Phillips Beverage Co. v. Belvedere, S.A., 204
F.3d 805, 806 (8th Cir. 2000) (applying the AWA where a party
“attempted to make an end run around the district court’s
refusal to grant the interim relief [it] sought in a case over
which the district court continued to have jurisdiction by . . .
asking Customs to do what the district court would not”); In re
Application of U.S. for an Order Directing X to Provide Access
to Videotapes, No. 03-89, 2003 WL 22053105, at *3 (D. Md.
Aug. 22, 2003) (using the AWA in order to “prevent[] frustration
of this court’s previously issued . . . warrant”).

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 2.

Frustration of this Court’s August Order

The State Board vehemently argues it had no intention of
frustrating this court’s August Order: according to the SBE, the
Revised Memo was issued – and the Consent Judgment agreed upon –
in a sequence of events unrelated to actual compliance with the
August Order. The Board argues that it believed the revisions
were consistent with, and not required by, this court’s August
Order. The State Board of Elections continued to maintain this
throughout oral argument before this court on October 7:
Again, I just wanted to be clear. The State Board was
not -- when it revised the memo in September, it was
not revising it because it believed those revisions
were necessary to comply with your order. It was
revising it because it believed that those revisions
were necessary to deal with what was actually
happening on the ground and because it believed that
those revisions could assist in settling protracted
litigation, avoiding protracted litigation.
(Doc. 168 at 87 (emphasis added).) The record, however,
explicitly disproves this fact. Exactly one week earlier, on
September 30, the SBE filed a state court brief supporting its
request for a Consent Judgment in the Alliance action. (Doc.
165-1.) Its representations in that brief stand in stark
contrast to its representations to this court. (Id. at 15.) In
its September 30 brief to the North Carolina Superior Court,
only one week prior to oral argument before this court, the SBE

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 directly cited this court’s August Order as the reason for its
“new cure procedure”:
As a result, and to ensure full compliance with
the injunction entered by Judge Osteen, the State
Board directed county boards of elections not to
disapprove any ballots until a new cure procedure that
would comply with the State Defendants’ understanding
[of] the injunction could be implemented. On
September 22, 2020, the State Board instituted the
cure procedure attached to the proposed consent
judgment. The State Board subsequently notified the
federal court of its cure mechanism process.
(Id.) (emphasis added). The SBE clearly informed the state court
that the revisions were needed “to ensure full compliance with
the injunction entered by Judge Osteen.” (Id.) Remarkably, the
SBE then claimed in this brief that it had “notified [this]
federal court of its cure mechanism process.” (Id.) No such
notification occurred until September 28, 2020. (Notice of
Filing (Doc. 143)), only one day before review of absentee
ballots was set to begin. (Pls.’ Br. on Mot. to Enforce (Doc.
148) at 11.) That notice alleged the Revised Memo was
“consistent with the [court’s] Order.” (Notice of Filing (Doc.
143) at 1.) On September 30, 2020, this court entered an order,
(Doc. 145), in response to the SBE’s notice, specifically
finding that “this court’s order cannot in any way be construed
to permit a missing witness signature to be cured by ‘sending

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 the voter a certification,’ as indicated by [Revised] Memo
2020-19.” (Id. at 4.)
It was only after this court issued that order that the SBE
modified its argument by arguing before the North Carolina
Superior Court - contrary to its brief - that the cure process
in place was not required by the August Order, but instead was
the result of the SBE’s authority under state law. (N.C. Super.
Ct. Hr’g Tr. (Doc. 167-1) at 26.)
Of course, notwithstanding that representation, the SBE in
its proposed state court order still included this court’s
August Order in the recitals as requiring a cure mechanism.
(Doc. 166-1 at 5.) That recital of this court’s order is the
only authority directly cited as authority to implement the cure
mechanism. This court finds the SBE did not, and was not,
relying upon N.C. Gen. Stat. § 163-22.2 or § 163-27.1 as
authority for a cure process. Instead, the SBE relied upon this
court’s order and injunction requiring Due Process, (Doc. 124),
to support a “cure” for an absentee ballot which eliminated the
witness requirement. Similarly, during oral argument before the
state court, the SBE made several additional references to this
court’s August Order as requiring some “cure process” – which,
in light of the brief, further mischaracterizes the August Order

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 as a directive to “cure” the witness requirement. (See N.C.
Super. Ct. Hr’g Tr. (Doc. 167-1) at 24-26.)
As if these misrepresentations were not enough, in its
brief to the state court, the SBE directly stated that this
court’s August Order held the opposite of what it really held:
Second, the court enjoined defendants “from the
disallowance or rejection, or permitting the
disallowance or rejection, of absentee ballots without
due process as to those ballots with a material error
that is subject to remediation,” and directed the
adoption of procedures “which provide[] a voter with
notice and an opportunity to be heard before an
absentee ballot with a material error subject to
remediation is disallowed or rejected.” Id. at *182.
These changes were necessary, the court rules, because
North Carolina’s witness requirement as statutorily
authorized was likely unconstitutional.
(Doc. 165-1 at 14 (emphasis added).) This representation was
patently not true: this court found that Due Process measures
were needed, but the North Carolina witness requirement was in
fact constitutional. (August Order (Doc. 124) at 102
(“Plaintiffs have not demonstrated a likelihood of success on
the merits of their constitutional challenge to the One-Witness
Requirement under the Anderson-Burdick balancing test.”).) This
court finds the SBE’s representations to the North Carolina
Superior Court explaining the contents and effect of the August
Order, (id.), are at best inaccurate, and were used to support
the SBE’s argument to obtain approval of the Consent Judgment

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 and modify the witness requirement. This court’s Due Process
remedy was used to modify the witness requirement that this
court upheld.
In addition to denying its representations about this
court’s August Order, the SBE also claims it did not frustrate
the August Order because its revisions do not actually eliminate
the witness requirement. Yet Revised Memo 2020-19 clearly
subverts this court’s findings in its August Order by
effectively eliminating the contemporaneous witness requirement.
(Revised Memo (Doc. 143-1) at 2.) According to Ms. Karen Brinson
Bell, Executive Director of the SBE, the Revised Memo allowed
“an envelope with a missing witness signature [to] be cured by
the voter attesting that he or she voted their ballot and is the
voter.” (Declaration of Karen Brinson Bell (“Bell Decl.”) (Doc.
151-3) ¶ 9.) Ms. Bell’s declaration contradicts her testimony
before this court, in which she stated unequivocally that a
ballot with a missing witness signature could not be cured, but
instead had to be spoiled:
You can’t have – there’s certain things that cannot be
cured. . . . If the board determines that there was no
witness signature, then you can’t say fix this
envelope by bringing in a witness because that would
not mean that the witness actually witnessed them
voting. . . . We could contact them and spoil that
particular ballot.

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 (Evidentiary Hr’g Tr. vol. 2 (Doc. 113) at 121-22.) This court’s
injunctive order, which specifically applied to a “material
error subject to remediation,” (August Order (Doc. 124) at 187),
was never intended to allow a ballot without a witness to be
cured. This court upheld the witness requirement – to claim a
cure which eliminates that witness requirement is “consistent
with” this court’s order is a gross mischaracterization of the
relief granted. Ms. Bell attests that the change in the Revised
Memo was in line with “the purpose of the witness requirement.”
(Bell Decl. (Doc. 151-3) ¶ 9 (emphasis added).) However parallel
with the requirement’s purpose it may have been, this change
explicitly eliminated the contemporaneous witness requirement
duly enacted by the legislature and found constitutional by this
court’s order. (Id.)
Legislative Defendants attempt to characterize this change
as a mere modification of the witness requirement, claiming the
“county board official [who contacted the voter after
discovering the deficiency] would act as the voter’s witness.”
(Exec. Defs.’ Resp. (Doc. 151) at 6.) However, even Executive
Defendants acknowledge this so-called “witnessing” is not
contemporaneous with the marking of the ballot. (Id.) Under the
2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(a), a witness
absentee ballot must be “marked in the presence of one qualified
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 witness.” This clear language dictates that the witness must be
(1) physically present with the voter, and (2) present at the
time the ballot is marked by the voter. The Revised Memo’s runaround of the witness requirement clearly falls short of the
valid statutory requirement previously upheld by this court. As
described supra in Part II.B.2, the SBE advanced different
arguments before this court and the North Carolina Superior
Court for the witness requirement.
Regardless of its purpose, the cure affidavit proposed by
the Revised Memo and the Consent Judgment contains a nearly
meaningless certification by the voter that completely
eliminates the witness requirement. The certification requires
the voter to certify that “I voted and returned my absentee
ballot . . . .” (Revised Memo Doc. 143-1 at 6.) In addition to
falling short of the statutory witness requirement, this process
eliminates the witness and assistance certifications required by
North Carolina Session Law 2020-17. 2020 N.C. Sess. Laws 2020-17
(H.B. 1169). This certification does not verify that the ballot
presented to a board of elections is the ballot executed by the
voter. Nor does the cure certification explain what “voted”
means, thereby allowing each individual voter to determine that
meaning and the circumstances under which a ballot may be
executed. Under the vague “I voted” language used in the
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 affidavit, a voter who completed his or her ballot with
assistance from an unauthorized individual; a voter who does not
qualify for voting assistance; or a voter who simply delegated
the responsibility for completing their ballot to another person
could truthfully sign this affidavit, although all three acts
are prohibited under state law. See N.C. Gen. Stat. § 163226.3(a)(1).
A state must ensure that there is “no preferred class of
voters but equality among those who meet the basic
qualifications.” Gray v. Sanders, 372 U.S. 368, 380 (1963).
Because the affidavit does not serve as an adequate means to
ensure that voters did not engage in unauthorized ballot casting
procedures, inevitably, not all voters will be held to the same
standards for casting their ballot. This court, for the reasons
more fully explained in its orders in Wise v. N. Carolina Bd. of
Elections, No. 1:20CV912, and Moore v. Circosta, No. 1:20CV911,
issued contemporaneously, points out that the current ‘cure’
process allows certain voters to certify a ballot according to
their own individual definitions of ‘to vote.’ This court’s
concerns notwithstanding, however, this court will decline to
enjoin the use of a cure affidavit beyond its application as an
alternative for compliance with the witness and assistance
requirements.
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 Neither the Revised Memo nor the cure affidavit may be
justified by pointing to this court’s order expressly upholding
the witness requirement. All Writs Act relief is designed for
scenarios in which a court’s order is directly frustrated –
here, the SBE has not only frustrated this court’s order, but
has also claimed in this court that it never misrepresented the
August Order’s requirements.
The SBE’s Revised Memo is not only misleading to this
court; it also creates different classes of voters based upon
the voting requirements – all under the guise of Due Process.
The voting process began on September 4, 2020. Ballots for
absentee mail voting were mailed on that date, along with
instructions specifically explaining the witness requirement. As
explained previously, more than 153,000 voters filled out
ballots under those instructions. Absentee Data, N.C. State Bd.
of Elections (Sept. 22, 2020).
Now, under the Revised Memo, voters will continue to
receive those instructions and presumably comply. However, those
voters who seek assistance from voting organizations or
individuals familiar with the Revised Memo may be correctly
advised that any ballot missing a witness signature, that is
proper in all other respects, can be accepted by the SBE via a
cure affidavit. Using a Due Process cure procedure to allow some
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 voters to ignore the witness requirement, or have their votes
counted without witness signatures, all under a claim of
complying with this court’s order, is a flagrant misuse of this
court’s injunctive relief. All Writs Act relief is thereby
justified in this instance to narrowly enjoin the witness
requirement cure procedure implemented in the Revised Memo
2020-19.
3.

Application of Purcell

The Supreme Court has made clear that “lower federal courts
should ordinarily not alter the election rules on the eve of an
election.” Republican Nat’l Comm. V. Democratic Nat’l Comm., 589
U.S. ____, ____, 140 S. Ct. 1205, 1207 (2020) (per curiam).
Purcell states that a court order affecting election rules will
progressively increase the risk of “voter confusion” as “an
election draws closer.” Purcell, 549 U.S. at 4-5; see also Texas
All. for Retired Americans v. Hughs, ____ F.3d ____, 2020 WL
5816887, at *2 (5th Cir. Sept. 30, 2020) (“The principle . . .
is clear: court changes of election laws close in time to the

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 election are strongly disfavored.”)7. Due to Purcell, this court
will deny Plaintiffs’ motion for affirmative relief and will
refrain from enjoining the entirety of the Revised Memo.
While the original Memo 2020-19 before the start of the
election was necessary to comply with this court’s order,
further revision of that Memo after ballots were already being
distributed and executed is inconsistent with the principle set
forth in Purcell. Though Purcell applies only to federal
judicial intervention, it is worth highlighting here that the
SBE claimed to be changing election rules after September 4th
expressly because a federal court required it, thereby using
this court’s order to accomplish what Purcell might otherwise
prohibit. Plaintiffs argue that Purcell requires courts to
“weigh the risk of voter confusion” rather than per se rejecting
any “late-breaking” changes in election rules. (Pls.’ Mot. for
Affirmative Relief (Doc. 156) at 25.) But as the Supreme Court’s

As Executive Defendants point out, (Exec. Defs.’ Resp.
(Doc. 151) at 1-2), the Ninth Circuit has read Purcell less
stringently, holding that “courts must assess the particular
circumstances of each case in light of the concerns expressed by
the Purcell court to determine whether an injunction is proper.”
Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 368 (9th
Cir. 2016). Even under that test, however, this case runs
parallel to Purcell. Most importantly, unlike in Feldman, this
case does involve “chang[ing] the electoral process.” Id.
Furthermore, there was “delay in bringing [the] action,” id. at
369, as no relief was sought until after the election began.
7

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 restoration of the South Carolina witness requirement last week
illustrates, a heavy thumb on the scale weighs against this
court changing voting regulations unless critically necessary.
Andino v. Middleton, ____ S. Ct. ____, 2020 WL 5887393, at *1
(Oct. 5, 2020) (Kavanaugh, J., concurring).
Plaintiffs themselves note that “[t]he delay in revising
Numbered Memo 2020-19 has caused confusion and delay by county
boards of election in providing voters with due process
regarding material errors subject to remediation with their
ballots.” (Pls.’ Br. on Mot. to Enforce (Doc. 148) at 11.)
Thousands of voters cast ballots with the understanding that the
guidelines in the original Memo 2020-19 applied.8 Those voters
were required to submit a ballot and return envelope with a
witness. 153,664 absentee ballots were received by the SBE prior
to the implementation of the Revised Memo – not counting those
that were filled out and mailed prior to the revision but had
not yet been received by the SBE. Absentee Data, N.C. State Bd.
of Elections (Sept. 22, 2020). To date, over 492,825 absentee
ballots have been cast, while 1,321,515 absentee ballots have

This court recognizes that an unidentified number of
voters also filled out and mailed ballots in the eight days
between the release of the Revised Memo and the SBE’s direction
for all action on absentee ballots to cease. (Exec. Defs.’ Resp.
(Doc. 151) at 8.)
8

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 been requested. North Carolina State Board of Elections, Voting
Underway in North Carolina, https://www.ncsbe.gov/ (last visited
Oct. 13, 2020).
Plaintiffs argue that Purcell does not apply here because
“there is no election law change implicated.” (Pls.’ Mot. for
Affirmative Relief (Doc. 156) at 23.) This is a misunderstanding
of Purcell. This year alone, the Purcell doctrine of
noninterference has been invoked by federal courts in cases
involving witness requirements and cure provisions during
COVID-19, Clark v. Edwards, Civil Action No. 20-283-SDD-RLB,
Civil Action No. 20-283-SDD-RLB, 2020 WL 3415376, at *1-2 (M.D.
La. June 22, 2020); the implementation of an all-mail election
plan developed by county election officials, Paher v. Cegavske,
Case No. 3:20-cv-00243-MMD-WGC, 2020 WL 2748301, at *1, *6 (D.
Nev. May 27, 2020); and the use of college IDs for voting,
Common Cause v. Thomsen, No. 19-cv-323-JDP, 2020 WL 5665475, at
*1 (W.D. Wis. Sept. 23, 2020) – just to name a few. Election
rule changes which, by Plaintiffs’ contention, (Pls.’ Mot. for
Affirmative Relief (Doc. 156) at 3), affect North Carolina
voters’ Due Process rights, certainly fall within the intended
scope of Purcell. Thus, this court finds that the SBE was
unjustified in relying upon this court’s August Order as an
authority for the Revised Memo. This court’s order is an
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 inappropriate basis for last-minute election rule changes,
particularly changes which contradict the order itself.
Moreover, in the same vein, and as discussed supra at Part
II.B.1, this court will reject Plaintiffs’ motion urging the
court to “order the State Board of Elections” to implement
certain reforms. (Pls.’ Mot. for Affirmative Relief (Doc. 156)
at 34.)
Finally, even if this court were to find Purcell permits an
award of additional relief to Plaintiffs, this court would
decline to grant that relief at this time. First, this court
specifically directed Plaintiffs to explain what they contend
constitutes a “material error subject to remediation.” (Doc. 152
at 7.) Instead of responding, they attempted to shift the burden
elsewhere, (Pls.’ Mot. for Affirmative Relief (Doc. 156) at 1719), and offered a litany of their preferred processes, (id. at
10-13). This failure to explain why the requested relief is
required by Due Process mandates denial of the motion.
Second, none of the Exhibits filed by Plaintiffs allege
facts to explain harm caused to any Plaintiff by the original
Memo 2020-19. (See Docs. 148-1 thru 148-15.) Plaintiffs
submitted the declaration of Talia Ray, a paralegal for
Plaintiffs’ counsel, describing the confusion of various county
boards of election. (Doc. 148-16 at 3-7.) However, their
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 confusion demonstrates the problems caused by Plaintiffs’ delay
in seeking further relief from this court in a timely fashion,
as well as the SBE’s late change to the original Memo 2020-19.
The Purcell principle applies to Legislative Defendants’
request: federal courts are to avoid active interference in
election rules too close to a state election. As Plaintiffs
point out, Purcell suggests that this court ought not directly
order the SBE to follow any particular set of election rules.
(Pls.’ Mot. for Affirmative Relief (Doc. 156) at 26-27.)9
Enjoining only the SBE’s removal of the witness requirement,
rather than the entirety of the Revised Memo, allows the court
to follow Purcell and refrain from unnecessary interference with
election procedures, while still requiring compliance with its
prior injunction. Therefore, this court will, without prejudice,
deny Legislative Defendants’ request that it “order the NCSBE to

The injunction this court has chosen remains within the
scope of this court’s August Order, which specifically upheld
the witness requirement while prescribing the need for further
Due Process. This court finds an injunction pursuant to the AWA
is necessary on these facts. Further injunctive relief would not
be appropriate in this case under the AWA because the Revised
Memo, other than the elimination of the witness requirement,
does not implicate any of the affirmative relief ordered in the
August Order. Those issues – including the ballot receipt
deadline, drop-box cure procedure, and the postmark requirement
changes – will be addressed directly in the Moore and Wise
cases.
9

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 return to the guidance contained in its August Memo.” (Leg.
Defs.’ Resp. (Doc. 150) at 10.)
III. CONCLUSION
For the foregoing reasons, this court finds DefendantIntervenors’ motion for All Writs Act relief should be granted
in part and denied in part. This court will enjoin the SBE from
implementing a Due Process or ‘cure procedure’ as described in
Revised Memo 2020-19 which authorizes acceptance of an absentee
ballot without a witness or assistant signature, (Doc. 143-1 at
2.) This injunction prohibits use or implementation of the
process allowing “witness or assistant did not sign” to qualify
under “Deficiencies Curable with a Certification,” (id.), which
would otherwise approve an absentee ballot which has not been
executed in accordance with H.B. 1169. Plaintiffs’ motion for
Affirmative Relief should be denied.
In the absence of any binding precedent of the Supreme
Court or the Fourth Circuit Court of Appeals, it remains
possible that an appeal is ultimately taken from this court’s
finding that Due Process applies to the rejection of absentee
ballots as explained in this court’s August Order. (See Doc. 124
at 150-59.) Upon appeal, a higher court may disagree with this
court’s conclusions regarding Due Process in the form in which
they are applied here. See, e.g., New Georgia Project v.
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 Raffensperger, ____ F.3d ____, 2020 WL 5877588, at *3 (11th Cir.
Oct. 2, 2020) (“The generalized due process argument that the
plaintiffs argued for and the district court applied would
stretch concepts of due process to their breaking point.”).
Recognition of that possibility makes it even more disturbing
that the SBE would put forth this court’s August Order as legal
authority upon which a North Carolina court should act to
approve eliminating or modifying the state statutory witness
requirement, as well as related requirements for execution of an
absentee ballot. Even if the relief ordered by this court is
found at some future time by a higher court to be inappropriate,
this court would still issue the injunction chosen here. Under
no circumstances was the Due Process remedy ordered by this
court intended to eliminate the state’s statutory requirements
for marking a ballot when voting absentee, and the August Order
should not have been used as authority for such action.
IT IS THEREFORE ORDERED that Defendant-Intervenors’ Motion
for All Writs Act Relief, (Doc. 154), is GRANTED IN PART AND
DENIED IN PART. The motion is GRANTED with respect to the
witness requirement cure procedure implemented in Revised Memo
2020-19; the motion is DENIED WITHOUT PREJUDICE as to
consideration of relief also requested in 1:20CV911 and
1:20CV912.
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 IT IS FURTHER ORDERED that the North Carolina State Board
of Elections is hereby ENJOINED and PROHIBITED from implementing
a Due Process or ‘cure procedure’ as described in Revised Memo
2020-19 which authorizes acceptance of an absentee ballot
without a witness or assistant signature, (Doc. 143-1 at 6.)
This injunction prohibits use or implementation of the process
allowing “witness or assistant did not sign” to qualify under
“Deficiencies Curable with a Certification,” (Doc. 147 at 2-4),
which would otherwise approve an absentee ballot which has not
been executed in accordance with H.B. 1169. This injunction does
not extend to other minor, curable errors subject to remediation
such as a witness signature written on the wrong line or an
incomplete address.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for
Affirmative Relief, (Doc. 156), is DENIED.
This the 14th day of October, 2020.

__________________________________
United States District Judge

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