Order Granting TRO and Transferring Case — Moore v. Circosta

Summary

An order in Moore et al. v. Circosta et al., No. 5:20-cv-00507-D, in the U.S. District Court for the Eastern District of North Carolina, Doc. 47, filed October 3, 2020. The plaintiffs, including Speaker of the North Carolina House of Representatives Timothy K. Moore and President Pro Tempore of the North Carolina Senate Philip E. Berger, contend that three memoranda issued by NCSBOE on September 22, 2020 violate the Elections Clause and the Equal Protection Clause. The court grants the motion for a temporary restraining order and enjoins enforcement of the September 2020-19 memo, Numbered Memo 2020-22 and Numbered Memo 2020-23, in effect until no later than October 16, 2020. It also transfers this case and Wise to Judge William L. Osteen, Jr. of the Middle District of North Carolina.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
WESTERN DMSION 
No. S:20-CV-507-D 
TIMOTHY K. MOORE, et al., 
Plaintiffs, 
v. 
DAMON CIR.COSTA, et al., 
Defendants. 
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ORDER 
On September 26, 2020, the Speaker of the North Carolina House of Representatives, 
Timothy K. Moore ("Moore''), the President Pro Tempore of the North Carolina Senate, Philip E. 
Berger (''Berger''), Bobby Heath ("Heath''), Maxine Whitley ("Whitley''), and Alan Swain ("Swain"; 
collectively, ''plaintiffs") filed this action against Damon Circosta ("Circosta'') in his official capacity 
as chair of the North Carolina State Board ofElections (''NCSBOE"), Stella Anderson ("Anderson") 
in her official capacity as a NCSBOE member, Jeff Carmon m ("Carmon") in his official capacity 
as a NCSBOE member, and Karen Brinson Bell ("Bell"; collectively, "defendants") in her official 
capacity as Executive Director of the NCSBOE alleging claims under 42 U.S.C. §1983 and the 
Elections Clause and Equal Protection Clause of the United States Constitution [D.E. 1]. On the 
same date, plaintiffs moved for a temporary restraining order [D.E. 8] and filed a memorandum in 
support [D.E. 9]. Specifically, plaintiffs contend that three memoranda NCSBOE issued on 
September 22, 2020, in conjunction with settlement negotiations (and ultimately a settlement on 
October 2, 2020) in a state court lawsuit concerning absentee ballots, violate the Elections Clause 
because the memoranda are inconsistent with the North Carolina General statutes and improperly 
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usurp legislative power to regulate federal elections. Additionally, plaintiffs contend that the three 
memoranda violate the Equal Protection Clause because the memoranda arbitrarily change the 
standards to determine the legality of an individual's vote harming plaintiffs that have voted already, 
and that the policies dilute the votes of those plaintiffs. See [D.E. 8] 5-22. 
In Wise v. North Carolina State Board of Elections, No. S:20-cv-S0S-D (E.D.N.C.) 
[hereinafter Wise], various plaintiffs from throughout North Carolina and other entities seek relief, 
inter alia, under 42 U.S.C. § 1983 and the Elections Clause, Article II, § 1, and the Equal Protection 
Clause. On October 2, 2020, the state court approved the settlement in the state court lawsuit, and 
Numbered Memo 2020-22 and Numbered Memo 2020-23 became effective. On the same date, this 
court held a hearing on plaintiffs' motion for a temporary restraining order in this case and in Wise. 
As explained below, the court grants plaintiffs' motion for a temporary restraining order in this case 
and in Wise, and transfers this case and Wise to the Honorable William L. Osteen, Jr., United States 
District Judge for the Middle District of North Carolina, for Judge Osteen's consideration of 
additional or alternative injunctive relief along with any such relief in Democracy North Carolina 
v. North Carolina State Board of Elections, No. l:20-CV-457 (M.D.N.C.). 
I. 
For purposes of this temporary restraining order only, the court draws the facts largely from 
plaintiffs' complaint in this case and in Wise.1 On March 10, 2020, Governor Roy Cooper declared 
a state of emergency due to the COVID-19 pandemic. On March 26, 2020, Bell submitted a letter 
to Governor Cooper and to legislative leaders recommending several "statutory changes" to North 
1 The court cites to the documents docketed in this case in the recitation of the facts. Any 
citations to the docket in Wise are underlined (e.g., [P.E. 31) to distinguish a citation to the docket 
in this case. 
2 
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Carolina's voting requirements. Bell asked that the General Assembly "[r]educe or eliminate the 
witness requirement" to ''prevent the spread ofCOVID-19." See [D.E. 1-5]. Under N.C. Gen. Stat. 
§ 163-231, to return a completed absentee ballot, a voter must have it witnessed and then mail or 
deliver the ballot in person, or have it delivered by commercial carrier. In addition, the voter, the 
voter's near relative, or the voter's verifiable legal guardian also can return the ballots in person. See 
N.C. Gen. Stat. § 163-23 l(b )(1 ). 2 The General Assembly has ctimina11y prohibited any person other 
than the voter, the voter's near relative, or the voter's verifiable legal guardian from ''retum[ing] to 
a county board of elections the absentee ballot of any voter." N.C. Gen. Stat. § 163-226.3(a)(S).3 
On June 11, 2020, the General Assembly overw~Jming)y passed bipartisan legislation, the 
"Bipartisan Elections Act," adjusting the voting rules for the November 2020 election. See 
Bipartisan Elections Act of 2020, 2020 N.C. Sess. Laws 2020-17. Before passing the Bipartisan 
Elections Act, the General Assembly considered numerous proposals to adjust North Carolina 
election laws in light of the COVID-19 pandemic. For example, the General Assembly considered 
2 Section 163-231 (b )(1) states, in full: ''Transmitting Executed Absentee Ballots to County 
Board of Elections. - The sealed container-return envelope in which executed absentee ballots have 
been placed shall be transmitted to the county board of elections who issued those ballots as follows: 
(1) All ballots issued under the provisions of this Article and Article 21A of this Chapter shall be 
transmitted by mail or by commercial courier service, at the voter's eX!)CDSe. or delivered in person, 
or by the voter's near relative or verifiable legal guardian and received by the county board not later 
than 5:00 p.m. on the day of the statewide primary or general election or county bond election. 
Ballots issued under the provisions of Article 21A of this Chapter may also be electronically 
transmitted." N.C. Gen. Stat.§ 163-23l(b)(l) (emphasis added). 
3 Section 163-226.3(a)(S) states, in full: "Any person who shall, in connection with absentee 
voting in any election held in this State, do any of the acts or things declared in this section to be 
unlawful, shall be guilty of a Class I felony. It shall be unlawful: ... (S) For any person to take into 
that person's possession for delivety to a voter or for return to a county board of elections the 
absentee ballot of any voter, provided, however, that this prohibition shall not apply to a voter's near 
relative or the voter's verifiable legal guardian." N.C. Gen. Stat. § 163-226.3(a)(S) (emphasis 
added). 
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the NCSBOE's proposal to ~Hminate the witness requirement for absentee ballots and to instead 
adopt a signature-matching software. The General Assembly was also aware of potential delivery 
issues concerning mail-in absentee ballots. Additionally, two recent voting experiences informed 
the General Assembly's choices. First, the General Assembly had information concerning voting 
processes in primary elections conducted during a pandemic. Second, the General Assembly was 
painfully aware of the massive abstentee-ballot fraud that occurred in the 2018 election for North 
Carolina's Ninth Congressional Dis1rict The scope and extent of the absentee-ballot fraud in that 
election required North Carolina to invalidate the election results and conduct a new election. 
On June 12, 2020, Governor Cooper signed the Bipartisan Elections Act into law. As 
relevant here, the Bipartisan Elections Act changed the witness requirements for absentee ballots. 
Specifically, the act provides: 
For an election held in 2020, notwithstanding G.S. 163-229(b) and G.S. 163-231( a), 
and provided all other requirements for absentee ballots are met, a voter's returned 
absentee ballot shall be accepted and processed accordingly by the county board of 
elections if the voter marked the ballot in the presence of at least one person who is 
at least 18 years of age and is not disqualified by G.S. 163-226.3(a)(4) or G.S. 
163-237(c), provided that the person signed the AP.,Plication and certificate as a 
witness and printed that person's name and address on the container-return envelope. 
N.C. Sess.Laws2020-17 § 1.(a)(emphasisadded). TheBipartisanElectionsActdidnotchangethe 
requirements concerning who may return an absentee ballot in section 163-231 or the criminal 
prohibition concerning the same in section 163-226.3( a)(S). It also did not change several provisions 
relevant to this lawsuit. Specifically, the Bipartisan Elections Act did not change the provision that 
sets the a deadline for receipt of absentee ballots: "The ballots issued under this Article are 
postmarked and that postmark is dated on or before the day of the statewide primary or general 
election or county bond election and are received by the county board of elections not later than three 
days after the election by 5:00 p.m." N.C. Gen. Stat.§ 163-23l(b)(2)(b) (emphasis added). 
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After the General Assembly enacted and the Governor signed the Bipartisan Elections Act, 
litigation ensued in the Unit.ed States District Court for the Middle District of North Carolina in 
which plaintiffs in that case challenged numerous provisions of the Bipartisan Elections Act and 
North Carolina election laws. On August 4, 2020, after J:iolding extensive hearings, the Honorable 
William L. Osteen, Jr., issued a comprehensive 188-page order largely upholding various North 
Carolina election laws applicable in this election (including the witness requirement), but requiring 
a procedural due process remedy to provide a ''voter with notice and opportunity to be heard before 
a delivered absentee ballot is disallowed or rejected." See Democracy N.C. v. N.C. State Bd. of 
Elections, No.1:20-CV-457,-F. Supp. 3d-, 2020 WL4484063, at •62 (M.D.N.C. Aug. 4, 2020) 
[hereinafter Democracy N.C.]. On September 3, 2020, a three-judge panel on the Wake County 
Superior Court denied injunctive relief to plaintiffs in that case seeking, inter alia, to enjoin 
enforcementofthewitnessrequirementforcastingabsenteeballotsunderN.C. Gen. Stat.§ 163-231 
andN.C. Sess. Laws 2020-17. See Chambers v. North Caroq 20CVSS00124 (N.C. Sup. Ct Sept 
3, 2020) (three-judge court). 
OnAugust 10, 2020, the North Carolina Alliance for Retired Americans and seven individual 
North Carolina voters (the "Alliance plaintiffs") filed suit in Wake County Superior Court against 
the NCSBOE and Circosta seeking declaratory and injunctive relief concerning several North 
Carolina election statutes. On the same date, the Alliance plaintiffs moved for a preliminary 
injunction. See [D.E. 1-2] 3. Berger and Moore intervened in the Alliance plaintiffs' suit in their 
respective official capacities. On August 18, 2020, the Alliance plaintiffs amended their complaint. 
See [D.E.1-10]. The Alliance plaintiffs asked the court to "[s]uspend the Witness Requirement for 
single-person or single-adult households" and "[r]equire election officials to count all absentee 
ballots mailed through USPS and put in the mail by Election Day if received by county boards up 
s 
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to nine-days after Election Day." See id. at 5. Under the North Carolina General Statutes, an 
absentee ballot is timely if ''postmarked and that postmark is dated on or before the day of the 
statewide primary or general election or county bond election and are received by the county board 
of elections not later than three days after the election by 5:00 p.m." N.C. Gen. Stat. § 163-
231 (b )(2)(b ). The Alliance plaintiffs also asked the court to "r_p ]relimjnarily and temporarily enjoin 
the enforcement of the" criminal prohibition on delivering another voter's absentee ballot under 
section 163-226.3(a)(5). See [D.E. 1-9] 42. 
On August 21, 2020, the NCSBOE issued Numbered Memo 2020-19 (the "August 2020-19 
memo"). See[D.E.1-4]. Inthatmemo, theNCSBOEcon:firmedthestatutorydeadlinesforabsentee 
ballots. See id. at 5, ,r 4. The NCSBOE also stated that a voter may cure two absentee ballot defects 
with a voter affidavit: (1) ''Voter did not sign the Voter Certification"; and (2) ''Voter signed in the 
wrong place." Id at 3, ,r 2.1. Additionally, the NCSBOE stated that five absentee ballot defects 
(four concerning the witness requirement) cannot be cured by a voter affidavit "because the 
information comes from someone other than the voter." Id. These defects include: (1) "Witness or 
assistant did not print ruune"; (2) "Witness or assistant did not print address"; (3) "Witness or 
assistant did not sign"; ( 4) "Witness or assistant signed on the wrong line"; (5) ''Upon arrival at the 
county board office, the envelope is unsealed or appears to have been opened and resealed." Id. at 
3, ,r 2.2. If a voter's absentee ballot contains one or more of these five defects, the county board 
spoils the voter's absentee ballot and reissues a ballot, sending the reissued ballot and notice to the 
voter. Id. The August 2020-19 memo also has a procedural due process cure provision. See id. at 
3-4, ,i,r 3-5. Additionally, the August 2020-19 memo confirmed that ''because of the requirements 
about who can deliver a ballot, and because of the logging requirements, an absentee ballot may not 
be left in an unmanned drop box." Id. at 6, ,r 6.2. 
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On August 21, 2020, when the NCSBOE issued the August 2020-19 memo, the state court 
had not issued an order resolving the Alliance plaintiffs' request for injunctive relief. On September 
4, 2020, the election began when the NCSBOE began issuing absentee ballots to voters. 
On September 22, 2020, the NCSBOE and the Alliance plaintiffs submitted to the state court 
a proposed consent judgment with three exhibits. See [D.E. 1-2]. The exhibits contain three 
memoranda from Bell that detail material changes to the on-going election and deviate from the 
statutory scheme. The last two exhibits became operative upon the state court's approval of the 
consent judgment on October 2, 2020. The three memoranda are Numbered Memo 2020-19 (the 
"September2020-19memo"; i.e., the revised version of the August 2020-19 memo issuedonAugust 
21, 2020 and revised on September 22, 2020), Numbered Memo 2020-22, and Numbered Memo 
2020-23 (collectively, the ''memoranda''). 
The September 2020-19 memo "directs the procedure county boards must use to address 
deficiencies in absentee ballots." Specifically, if a ''witness ... did not print name," "did not print 
address," "did not sign," or "signed on the wrong line," the NCSBOE considers that error a 
"deficiency'' and would allow the absentee voter to "cure". [D.E. 1-2] 33. A voter cures such a 
deficiency through a "certification," which is a form the county board of elections sends to a voter 
that requires the voter to sign and affirm the following: 
I am an eligible voter in this election and registered to vote in [name] County, North 
Carolina. I solemnly swear or affirm that I requested, voted, and returned an absentee 
ballot for the November 3, 2020 general election and that I have not voted and will 
not vote more than one ballot in this election. I understand that fraudulently or 
falsely completing this affidavit is a Class I felony under Chapter 163 of the North 
Carolina General Statutes. 
[D.E. 1-2] 37. Notwithstanding Judge Osteen' s order of August 4, 2020, this change eliminates the 
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statutory witness requirement for such a voter.4 
Numbered Memo 2020-22 states that a ballot is timely "ifit is either (1) received by the 
county board by S:00 p.m. on Election Day; or (2) the ballot is postmarked on or before Election Day 
and received by nine days after the election, which is Thursday, November 12, 2020 at S:00 p.m." 
Id. at 29 (emphasis added). Additionally, Numbered Memo 2020-22 states: ''For remaining 
elections in 2020, a ballot shall be considered postmarked by Election Day if it has a postmark 
affixed to it or if there is information in BallotTrax, or another tracking service offered by the USPS 
or a commercial carrier, indicating that the ballot was in the custody of USPS or the commercial 
carrier on or before Election Day." Id. at 30. This numbered memo changes the statutory deadline 
for absentee ballots. 
Numbered Memo 2020-23 concerns "In-Person Return of Absentee Ballots." Id. at 39. In 
relevant part, it states: ''Only the voter, or the voter's near relative or legal guardian, is permitted 
to possess an absentee ballot . . • Because of this provision in the law, an absentee ballot may 
not be left in an unmanned drop box. . . . The county board shall ensure that, if they have a drop 
box, slot, or similar container at their office, the container has a sign indicating that absentee ballots 
may not be deposited in it" Id.. at 39 (emphasis in original). Two pages later, Numbered Memo 
2020-23 states: ''Intake staff shall accept receipt of all ballots provided to them, even if information 
is missing or someone other than the voter or their near relative or legal guardian returns the ballot 
. . . If your site has a mail drop or drop box used for other purposes, you must affix a sign stating 
that voters may not place their ballots in the drop box. However, a county board may not disapprove 
4 At the October 2, 2020 hearing in this court, NCSBOE's counsel confirmed this 
understanding of the September 2020-19 memo cure provisions. When the court asked NCSBOE's 
counsel whether the September 2020-19 memo's voter certificationcme applied to an absentee ballot 
on which all witness information was missing, NCSBOE's counsel responded that it did. 
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a ballot solely because it is placed in a drop box." Id.. at 40-41 ( emphasis added). This numbered 
memo eHminares the requirement that only the voter, the voter's near relative, or the voter's 
verifiable guardian may deliver the absentee ballot 
As mentioned, on September 4, 2020, the election began in North Carolina when the 
NCSBOE began maiHng absentee ballots to voters. The first date on which NCSBOE reports 
absentee ballots cast is September 4, 2020. As of September 22, 2020, at 4:40 a.m., North Carolina 
voters had cast 153,664 absentee ballots. As of October 2, 2020, at4:40 a.m., North Carolina voters 
had cast 319,209 ballots. See North Carolina State Board of Elections, N.C. Absentee Statistics for 
the 2020 General Election, https://s3.amazonaws.com/dl.ncsbe.gov/Press/NC%20Absentee% 
20Stats%20for%202020%20General%20Election/Absentee_Stats_2020General _10022020.pdf (last 
visited Oct 2, 2020). The plaintiff voters in this case (Heath and Whitley) and one plaintiff voter 
in Wise (Patsy J. Wise) cast their absentee ballots and had them accepted before the Alliance 
plaintiffs filed notice of the consent judgment in the state court lawsuit on September 22, 2020. 
On September 28, 2020, this court held a status conference in this case. At the status 
conference, NCSBOE's counsel stated that the NCSBOE issued the September 2020-19 memo 
(dated September 22, 2020) "in order to comply with Judge Osteen's preHminary injunction in the 
Democracy N.C. action in the Middle District" This court asked NCSBOE's counsel whether 
NCSBOE had submitted the September 2020-19 memo to Judge Osteen and explained to Judge 
Osteen whytheNCSBOEissuedit NCSBOE's counsel replied that the NCSBOEhadnotsubmitted 
the September 2020-19 memo to Judge Osteen, but that it was on counsel's list ''to get done today." 
On September 28, 2020, the NCSBOE filed the September 2020-19 memo with the Middle District 
ofNorth Carolina. 
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On September 30, 2020, Judge Osteen issued an order stating that the September 2020-19 
memo is not "consistent with [his] order entered on August 4, 2020." See Order, Democracy N.C., 
No. l:20-CV-457 [D.E. 145] 3 (M.D.N.C. Sept. 30, 2020). Judge Osteen scheduled a hearing for 
October 7, 2020, at 12:00 p.m. Id [D.E. 149]. On September 30, 2020, plaintiffs in Democracy 
N.C. filed a motion and memorandum in the Middle District seeking to enforce order granting in part 
preliminary injunction, or in the alternative, motion for clarification, and to expedite. See 
Democracy N.C., No. l:20-CV-457 [D.E. 147, 148] (M.D.N.C. Sept 30, 2020). On October 1, 
2020, the NCSBOE issued Numbered Memo 2020-27 discussing Judge Osteen's order of September 
30, 2020. See [D.E. 40-2]. Numbered Memo 2020-27 states that, ''to avoid confusion while related 
matters are pending in a number of courts, ... [c]ounty boards that receive an executed absentee 
container-return envelope with a missing witness signature shall take no action as to that envelope." 
Id. at 2. Numbered Memo 2020-27 also states that "[i]n all other respects, Numbered Memo 2020-
19, as revised on September 22, 2020 [i.e., the September 2020-19 memo], remains in effect" Id 
On October 1, 2020, Judge Osteen asked for expedited briefing on whether, inter alia, ''the 
court should consider restraining Defendant North Carolina State Board of Elections' actions taken 
pursuant to Memo 2020-19 (Doc. 143-1), in light of the earlier version of that memorandum issued 
on August 21, 2020," and established a deadline of 12:00 p.m. on October 2, 2020, for such briefing. 
See Democracy N.C., No. l:20-CV-457 [D.E.149] (M.D.N.C. Oct 1, 2020). On October 2, 2020, 
Legislative defendants in Democracy N.C. asked Judge Osteen to enjoin the September 2020-19 
memo and to permit the August 2020-19 memo (dated August 21, 2020) to be operative. See id. 
[D.E. 150]. 
On October 2, 2020, at 5:00 p.m., this court held a hearing on the pending TRO motions in 
this case and Wise. At that hearing, NCSBOE's counsel stated that the state courtjudge in Alliance 
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had approved the consent judgment in that case. See [D.E. 4S-1] (attaching a copy of the consent 
judgment., which was approved at 4:08 p.m.). NCSBOE's counsel referenced the notice filed with 
this court shortly before the hearing notifying the court that the state court entered a consent 
judgment in Alliance. See [D.E. 4S]. NCSBOE's counsel stated that the consentjudgmentattached 
to the notice at docket entry 4S was a true and accurate copy of the consent judgment the state court 
judge entered, and that the attached consent judgment was identical to the proposed consent 
judgment plaintiffs submitted with their complaint in this case. Cf. [D.E. 1-2]. 
During the hearing on October 2, 2020, the court learned that Judge Osteen filed an extensive 
order requesting additional briefing on certain constitutional questions, the need for additional 
injunctive retie~ how Purcell v. Gomalez, S49 U.S. 1 (2006) (per curiam.), might apply, and the 
definitionof''materialerrorsubjecttoremediation." SeeDemocracyN.C., [D.E.1S2] 1-8. Motions 
for injunctive relief in Democracy N.C. are due October S, 2020, by 5:00 p.m. Responses in 
Democracy N.C. are due by 4:00 p.m. on October 6, 2020. Judge Osteen will hold oral argument 
on October 7, 2020, at 2:00 p.m. After the hearing, the court took plaintiffs' motions for a temporary 
restraining order in this case and in Wise under advisement Numerous intervention motions are 
pending in this case and Wise, including from the plaintiffs in the Democracy N.C. action and the 
state-court action. 
II. 
The court has considered plaintiffs' request for a temporary restraining order under the 
governing standard. See, e....&, Winterv. Nat. Res. De£ Council, Inc., SSS U.S. 7, 20 (2008); Cen1ro 
Te_peyac v. Montgomezy Cty .. 722 F.3d 184, 188 (4th Cir. 2013) (en bane); Real Truth About 
Obama, Inc. v. FEC, S7S F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, S59 U.S. 1089 
(2010), reissuedinrelevantimn, 607 F.3d 35S (4th Cir. 2010) (percuriam.); U.S. De,P'tofLaborv. 
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Wolf Run Mjning Co., 452 F.3d 275, 281 n.1 (4th Ck. 2006) (substantive standard for temporary 
restraining order is same as that for entering a preHmjnary mjunction). 
For purposes of this order only, the court need not address plaintiffs' claim m this case under 
the Elections Clause, or the Wise plaintiffs claims under the Elections Clause or Article II, § 1. 
Moreover, the court bas considered the parties' arguments m this case and m Wise made both m the 
papers and at the hearings. The court finds plaintiffs' arguments concerning the Equal Protection 
Clause persuasive. In short, the court grants plaintiffs' motion m this case and m Wise for a 
temporary restraining order based on the Equal Protection Clause for the reasons stated m plaintiffs' 
papers and at the October 2, 2020 hearing. Plaintiff voters m this case and m Wise have established 
that (1) they are likely to succeed on the merits of thek claims that the provisions m the memoranda 
violate the plaintiff voters' rights under the Equal Protection Clause; (2) they are likely to suffer 
irreparable harm absent a temporary restraining order; (3) the balance of the equities tips m thek 
favor; and ( 4) a temporary restraining order is m the public mterest 
Under the Fourteenth Amendment of the Constitution, a state may not "deny to any person 
within its jurisdiction the equal protection of the laws." U.S. Const amend. XIV. The Fourteenth 
Amendment is one of many provisions of the Constitution that ''protects the right of all qualified 
citizens to vote, m state as well as federal elections." Reynolds v. Sims, 377 U.S. 533, 554 (1964); 
see Bush v. Gore, 531 U.S. 98, 104-05 (2000) (per curiam). ''The right to vote is more than the 
mi.ti.al allocation of the franchise. Equal protection applies as well to the manner of its exercise." 
BlWb 531 U.S. at 104; see Wright v. North Carolina, 787 F.3d 256,259, 263--64 (4th Ck. 2015); 
Hunter v. Hamilton cty. Bd. of Elections, 635 F.3d 219, 234 (6th Ck. 2011). 
The Supreme Court bas identified two, separate frameworks for analyzjng challenges to state 
voting laws and policies under the Fourteenth Amendment: (1) the framework identified m 
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Reynolds and Bush (hereinafter the "Reynolds-Bush" framework); and (2) the framework identified 
in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992) 
(hereinafter the "Anderson-Burdick" framework). See Marcellus v. Va. State Bd. of Elections, 849 
F .3d 169, 180 n.2 ( 4th Cir. 2017); Libertarian Party ofV a. v. Alcorn, 826 F .3d 708, 716-17 ( 4th Cir. 
2016); Wright. 787 F.3d at 263-64. 
The Reynolds-Bush framework addresses two principle harms under the Fourteenth 
Amendment The first of those two harms is "a debasement or dilution of the weight of a citizen's 
vote." Reynolds, 377 U.S. at 555; see id. at 567 ("To the extent that a citizen's right to vote is 
debased, he is that much less a citiz.en.''); see also~ 531 U.S. at 105 ("It must be remembered 
that the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote 
just as effectively as by wholly prohibiting the free exercise of the franchise." ( quotation omitted)); 
Baker v. Carr, 369 U.S. 186, 207--08 (1962); Raleigh Wake Citi7.ens Ass'n v. Wake Ccy. Bd. of 
Elections, 827 F.3d 333, 337-38 (4th Cir. 2016); Wright 787 F.3d at 259, 263-64; cf. Anderson v. 
United States, 417 U.S. 211, 226-27 (1974); Wesberryv. Sanders, 376 U.S. 1, 17 (1964) (''Not only 
can [the right to vote] not be denied outright, it cannot, consistently with Article I, be destroyed by 
alteration of ballots or diluted by stuffing of the ballot box."); id. at 8 ("We hold that, construed in 
its historical context, the command of Art. I, s 2, that Representatives be chosen 'by the People of 
the several States' means that as nearly as is practicable one man's vote in a congressional election 
is to be worth as much as another's." (foo1notes omitted)). 
The second harm that the Fourteenth Amendment prohibits and that is addressed under the 
Reynolds-Bush framework is the "arbitrary or disparate treatment of members of [the state's] 
electorate." ~ 
531 U.S. at 105; see id. at 104--05 (''Having once granted the right to vote on 
equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote 
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over that of another."); Dunn v. Blumenste~40SU.S. 330,336 (1972); Hadleyv. Junior Coll. Dist. 
of Metro. Kan. City, 397 U.S. SO, 56 (1970) ("We therefore hold today that as a general rule, 
whenever a state or local government decides to select persons by popular election to perform 
governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that 
each qualified voter must be given an equal opportunity to participate in that election .... "); Har.per 
v. Va. Bd. ofElections, 383 U.S. 663, 665 (1966) ("[O]nce the :franchise is granted to the electorate, 
lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth 
Amendment j; Grayv. Sanders, 372 U.S. 368,380 (1963). To that end, a state must have "specific 
rules designed to ensure uniform treatment'' of a voter's ballot ~ 
531 U.S. at 106; see :omm, 
405 U.S. at 336 ("[A] citiz.en has a constitutionally protected right to participate in the elections on 
an equal basis with other citizens in the jurisdiction."); Gray, 372 U.S. at 380 ("[T]he Constitution 
visualizes no preferred class of voters but equality among those who meet the basic qualifications."). 
Plaintiff voters' claims under the Equal Protection Clause raise profound questions 
concerning arbitrariness and vote dilution. The election in North Carolina began on September 4, 
2020. On that date, the August 2020-19 memo was legally operative and consistent with Judge 
Osteen's comprehensive order of August 4, 2020. TheAugust2020-19 memo included the statutory 
witness requirement, the statutory absentee ballotde.adHne, the statutory requirement concerning who 
could deliver absentee ballots, and a procedural due process cure for absentee voters. 
By September 22, 2020, over 150,000North Carolina voters-including plaintiffs Heath and 
Whitley in this case, and plaintiff Wise in Wise--had cast absentee ballots under the statutory 
scheme and the August2020-19 memo. On October 2, 2020, however, after the election started and 
319,209 North Carolina voters had cast absentee ballots, the NCSBOE materially changed the rules 
under which the election was taking place. Specifically, the September 2020-19 memo, Numbered 
14 
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Memo 2020-22, and Numbered Memo 2020-23 eHmjnate the statutory witness requirement, change 
the statutory dates and method by which absentee ballots are accepted, and change the statutory 
scheme as to who can deliver absentee ballots. At bottom, the NCSBOE has ignored the statutory 
scheme and arbitrarily created multiple, disparate regimes under which North Carolina voters cast 
absentee ballots, and plaintiff voters in this case and in Wise are likely to succeed on their claims 
under the Equal Protection Clause. 
The NCSBOE inequitably and materially upset the electoral status quo in the middle of an 
election by issuing the memoranda and giving the memoranda legal effect via the October 2, 2020 
consent judgment The court issues this temporary restraining order to maintain the status quo. Cf. 
Purcell, 549 U.S. at 4-6. Additionally, the constitutional harm of which plaintiff voters complain 
would be irreparable absent a temporary restraining order in this case and Wise. The public has a 
distinct interest in ensuring that plaintiffs' voting rights under the Constitution are secure. See 
Giovanni Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002); see also Legend Night Club 
v. Miller, 637 F.3d 291, 302--03 ( 4th Cir. 2011) (''Maryland is in no way harmed by issuance of an 
injunction that prevents the state from" violating the Constitution). "[P]ublic confidence in the 
integrity of the electoral process" is of paramount importance. Crawford v. Marion cty. Election 
Bd., 553 U.S. 181, 197 (2008). The memoranda, by materially changing the electoral process in the 
middle of an election after over 300,000 people have voted, undermines that confidence and creates 
confusion for those North CaroUnfans who have yet to cast their absentee ballots. In contrast, the 
relief plaintiff voters seek temporarily restores the status quo for absentee voting in North Carolina 
until the court can assess this case and the Wise case on a fuller record. 
In opposition, defendants in this case raise various procedural arguments to plaintiffs' motion 
for a temporary restraining order. See [D.E. 31]. The court rejects those arguments at this early 
15 
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stage in the litigation for the reasons stated in plaintiffs' comprehensive reply brief and at oral 
argument See [D.E. 40-1]. 
Plaintiff voters in this case and in Wise have established that the Winter factors warrant a 
temporary restraining order in their favor. Thus, the court grants a temporary restraining order in this 
case and in Wise. 
m. 
As for defendants' previous motion to transfer venue in this case [D.E. 14], the court entered 
an order denying the motion on September 30, 2020 [D.E. 26]. Upon reconsideration of the record 
in this case, Wise, and Democracy N.C., the court finds that transferring this action and the Wise 
action to the Honorable William L. Osteen, Jr., pursuant to the first-filed rule better comports with 
Fourth Circuit precedent and the interests of justice. 5 
The Fourth Circuit recogni7.es the ''first-filed" rule. See,~ Hartford Fire Ins. Co. v. 
HarleysvilleMut. Ins. Co., 736F.3d255,258 &n.1 (4th.Cir. 2013);EllicottMach. Cor,p. v. Modem 
WeJding Co., 502F.2d 178, 180-82 (4th.Cir. 1974); Golden Corral Franchising Sys., Inc. v. GC of 
Vineland, LLC, No. 5:19-CV-255-BO, 2020 WL 1312863, at *2 (E.D.N.C. Mar. 17, 2020) 
(unpublished); Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F. Supp. 2d 357,360 (W.D.N.C. 
2003). According to the first-filed rule, a district court has an independent, equitable basis for 
transferring an action where "sound judicial adminis1ration counsels against separate proceeding~, 
and the wasteful expenditure of energy and money'' in separate litigation. Blue Stuff, 264 F. Supp. 
2d at 360 (quoting Columbia Plaza Cor,p. v. Security Nat'l Bank, 525 F.2d 620, 626 (D.C. Cir. 
5 Although this court cited In re Bozic, 888 F.3d 1048, 1054 (9th Cir. 2018), in its order 
denying defendants' motion to transfer, [D.E. 26], that case is not controlling precedent in the Fourth 
Circuit Moreover, numerous developments in this case, Wise, and Democracy N.C. during the last 
six days demonstrate the wisdom of the Fourth Circuit's first-filed rule. 
16 
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197S)); see Hartford Fire, 736 F.3d at 2S8 n.1 ("[W]e note that [a] court [is] :free to raise the issue 
of the first-to-file rule sua sponte."). The ''first-filed" rule provides that where parties ''have filed 
similar litigation in separate federal fora, doctrines of federal comity dictate that the matter should 
proceed in the court where the action was first filed, and that the later-filed action should be stayed, 
transferred, or enjoined." Blue Stuff, 264 F. Supp. 2d at 360. 
Courts have recognized three factors to consider "in determining whether to apply the first-
filed rule: 1) the chronology of the filings, 2) the similarity of the parties involved, and 3) the 
similarity of the issues at stake." Id. "[T]he parties need not be perfectly identical in order for the 
first-filed rule to apply." Golden Corral, 2020 WL 1312862, at• 2; see Troce v. Bimbo Foods 
Bakeries Distrib., Inc., No. 3:11CV234-RJC-DSC, 2011 WL 3S6S0S4, at *3 (W.D.N.C. Aug. 12, 
2011) (unpublished). Issues in separate cases are similar when they ''bear on a common question." 
Berger v. United States DOI, Nos. S:16-CV-240-FL, S:16-CV-24S-FL, 2016 U.S. Dist. LEXIS 
84S36, at *32 (E.D.N.C. June 29, 2016) (unpublished). 
Notwithstanding plaintiffs' initial choice of fo~ the ''first-filed" rule counsels in favor of 
transferring this case and the Wise case to Judge Osteen in the Middle District of North Carolina. 
Judge Osteen is currently presiding over Democracy N.C. That case was filed over four months 
before proceedings commenced in these actions. Additionally, the parties in all three cases are 
similar. Plaintiffs Moore and Berger are parties to this action and the Democracy N.C. action and 
are seeking injunctive relief in each action. 6 And defendants Circosta, Anderson, Carmon, and Bell 
6 Although plaintiffs in the Wise case are not parties to this action or Democracy N.C., this 
incongruity is outweighed by the fact that at least one plaintiff in Wise, Samuel Grayson Baum, 
resides in the Middle District of North Carolina and, with the consent of defendants, could have 
brought bis action in that court in the first instance. See 28 U.S.C. § 1404(a); Wise, No. S:20-CV-
SOS [D.E. 1]. 
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are defendants in all three cases.7 Furthermore, this case, Wise, and Democracy N.C. present 
substantially similar issues that ''bear on a common question," i.e., defendants' initial conduct in 
setting the rules for North Carolina's 2020 election in accordance with Judge Osteen's order and the 
statutory scheme, and their conduct in changing those rules while subject to Judge Osteen's order. 
Notably, in Democracy N.C., Judge Osteen upheld the witness requirement and various other 
election requirements. Defendants issued the August 2020-19 memo in response to Judge Osteen's 
order, and the election began under the statutory scheme and the August 2020-19 memo. The 
September 2020-19 memo, however, eUrninated the witness requirement. Moreover, Judge Osteen 
was not aware of the September2020-19 memo untilNCSBOE's counsel filed itinDemocracyN.C. 
on Monday, September 28, 2020, after prompting :from this court. The orders Judge Osteen issued 
following NCSBOE counsel's filing of the September 2020-19 memo illumjnated the commonality 
of issues in Democracy N.C., Wise, and this action. 
Furthermore, there are no "special 
circumstances," such as forum shopping or bad faith filings, that cut against transferring this action 
under the first-filed rule. Blue StJrlt 264 F. Supp. 2d at 360. 
Equitable factors also counsel transferring this action to Judge Osteen. Judge Osteen has 
been presiding over the DemocracyN.C. action, involving similar parties and an overarching similar 
issue, for over four months. He conducted a two-day evidentiary hearing and issued a 188-page 
order granting in part the plaintiffs' motion for a pre)jmjnary injunction, largely upholding the 
statutory scheme for this election (including the witness requirement). See Democracy N.C., 2020 
WL 4484063, at• 1. As of October 2, 2020, Judge Osteen issued an expedited briefing order in that 
7 Although plaintiffs Heath, Whitley, and Swain in this action and voter plaintiffs in Wise 
are not parties to Democracy N.C., transferring a case under the first-filed rule does not require that 
the parties be ''perfectly identical." Golden Corral, 2020 WL 1312862, at• 2; see Troce, 2011 WL 
3S6S0S4, at *3. 
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case and ordered any party ''requesting affirmative relief," including ''injunctive relief," to ''file a 
motion setting out the basis for that reliefll" no later than 5:00 p.m. on October 5, 2020. See 
DemocracyN.C., [D.E. 152] 8--9. Allowing Judge Osteen to consider these actions together (even 
if not consolidated) constitutes "sound judicial administration" and avoids ''wasteful expenditure of 
energy'' and confusion as contemplated by the first-filed rule. See Blue Stuff, 264 F. Supp. 2d at 
360. It also allows expeditious resolution of requests for injunctive relief and avoids multiple federal 
courts imposing potentially conflicting preHmjnary or permanent injunctions concerning this 
election. Accordingly, this court transfers this action and the Wise action to Judge Osteen in the 
Middle District of North Carolina. 
IV. 
In sum, the court GRANTS plaintiffs' emergency motion for a temporary restraining order 
in this case [D.E. 8] and in Wise [P.E. 3]. Defendants are TEMPORARILY ENJOINED from 
enforcing the September 2020-19 memo, Numbered Memo 2020-22, Numbered Memo 2020-23, or 
any similar memoranda or policy statement that does not comply with the requirements of the Equal 
Protection Clause. This order does not enjoin or affect the August 2020-19 memo. This temporary 
restraining order shall be in effect until no later than October 16, 2020, and is intended to maintain 
the status quo. See Fed. R. Civ. P. 65(b)(2). No bond is required. Cf. Fed. R. Civ. P. 65(c). 
The court also TRANSFERS this action and Wisev. North Carolina State Board ofElections, 
No. 5 :20-CV-505 (E.D.N.C.), to the Honorable William L. Osteen, Jr., United States District Judge 
in the Middle District ofNorth Carolina for consideration along with Democracy North Carolina v. 
North Carolina State Board of Elections, No. 1 :20-CV-457 (M.D.N.C.). Judge Osteen has authority 
to terminate or modify this temporary restraining order, and this court is confident that Judge Osteen 
will schedule promptly, as needed, any preHminary injunction hearing or any hearing concerning 
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injunctive relief in this case, the Wise case, and the Democracy N.C. case. Having one federal judge 
preside over these three actions expedites final resolution of the dispute in this case, Wise, and 
Democracy N.C., helps to minimiz.e voter confusion in this election, and helps to ensure that 
defendants are not subject to conflicting federal court orders in this election. 
SO ORDERED. This ..3,_ day of October 2020. 
'"•';I 
20 
i: SC.DEVERID 
United States District Judge 
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