Motion for preliminary injunction and memorandum in support — Moore v. Circosta (M.D.N.C. No. 5:20-cv-00507)

Record facts

U.S. District Court for the Middle District of North Carolina · No. 1:20-cv-00911-WO-JLW · Doc. 60 · 2020-10-06 · Docket on CourtListener

Full text

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IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 
 
TIMOTHY K. MOORE, in his 
official capacity as Speaker of 
the North Carolina House of 
Representatives, PHILIP E. 
BERGER, in his official 
capacity as President Pro 
Tempore of the North Carolina 
Senate; BOBBY HEATH, MAXINE 
WHITLEY, and ALAN SWAIN, 
 
Plaintiffs, 
v. 
DAMON CIRCOSTA, in his official 
capacity as Chair of the North 
Carolina State Board of 
Elections, STELLA ANDERSON, in 
her official capacity as a 
member of the North Carolina 
State Board of Elections, JEFF 
CARMON III, in his official 
capacity as a member of the 
North Carolina State Board of 
Elections, and KAREN BRINSON 
BELL, in her official capacity 
as the Executive Director of 
the North Carolina State Board 
of Elections, 
Defendants. 
Civil Action 
No. 1:20-CV-911 
 
PLAINTIFFS’ MOTION FOR A 
PRELIMINARY INJUNCTION AND 
MEMORANDUM IN SUPPORT OF SAME 
 
 
 
Statement 
Plaintiffs Timothy K. Moore, Philip E. Berger, Bobby Heath, 
Maxine Whitley, and Alan Swain, hereby respectfully request, 
pursuant to Federal Rule of Civil Procedure 65(a)(1), that the 
Court issue a preliminary injunction, on or before October 16, 
Case 1:20-cv-00911-WO-JLW   Document 60   Filed 10/06/20   Page 1 of 13

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2020——the date when the temporary restraining order expires, Doc. 
47——enjoining Defendants from enforcing and distributing Numbered 
Memo 2020-19, Numbered Memo 2020-22, Numbered Memo 2020-23, and 
any similar memoranda or policy statement that does not comply 
with the requirements of the Elections Clause, U.S. CONST. art. I, 
§ 4, cl. 1, and the Equal Protection Clause, id. amend. XIV, § 1. 
To be clear, Plaintiffs do not seek to enjoin Defendants from 
enforcing the original version of Numbered Memo 2020-19, issued on 
August 21, 2020. 
Question Presented 
 
Whether Defendants should be preliminarily enjoined from 
enforcing and distributing the challenged Numbered Memoranda. 
Argument 
As set forth in Plaintiffs’ Memorandum in Support of 
Plaintiffs’ Motion for a Temporary Restraining Order, Doc. 9, and 
Reply, Doc. 40-1, Defendants’ actions in publishing the three 
Memoranda violate two provisions of the Constitution that protect 
our elections and the right to vote: the Elections Clause and the 
Equal Protection Clause. First, the U.S. Constitution’s Elections 
Clause provides that only the “Legislature[s]” of the several 
states or Congress may prescribe the time, place, and manner of 
federal elections, and the North Carolina Constitution vests the 
legislative power exclusively in the General Assembly. Defendants 
have clearly violated this Clause by issuing Memoranda that 
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directly contravene the General Assembly’s duly enacted statutes 
setting the rules of the election. Second, these ad-hoc Memoranda 
have been issued while voting is ongoing and to that end Defendants 
are applying different rules to ballots cast by similarly situated 
voters, thus violating the Equal Protection Clause in two distinct 
ways: Defendants are administering the election in an arbitrary 
and nonuniform manner that will inhibit the right of voters who 
cast their absentee ballots before the Memoranda were announced to 
participate in the election on an equal basis with other citizens 
in North Carolina, and Defendants are purposefully allowing 
otherwise unlawful votes to be counted, thereby deliberately 
diluting and debasing North Carolina voters’ votes. 
Preliminary 
injunctive 
relief 
is 
warranted 
because 
(1) Plaintiffs are likely to succeed on the merits of their claims; 
(2) they will likely suffer irreparable harm absent an injunction; 
(3) the balance of hardships weighs in their favor; and (4) the 
injunction is in the public interest. See League of Women Voters 
of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). 
Absent relief from this Court, Plaintiffs’ interests in defending 
duly enacted state election laws, the integrity of the ongoing 
election, and North Carolinians’ voting rights will be irreparably 
harmed, and the current election law framework that governs the 
ongoing election will be substantially, and unconstitutionally, 
altered. 
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Issue 
preclusion 
arising 
from 
the 
state 
trial-court 
litigation in North Carolina Alliance for Retired Americans v. 
North Carolina State Board of Elections, No. 20 CVS 8881 (N.C. 
Wake Cnty. Super. Ct.), does not bar this Court from granting this 
motion. While Defendants have not briefed this issue, they raised 
in during argument on the temporary restraining order, see Hearing 
Transcript at 38–41, Doc. 26, Wise v. N.C. State Bd. of Elections, 
No. 20-cv-912 (M.D.N.C. Oct. 2, 2020) (“Hearing Tr.”) (attached as 
Ex. 1 to Declaration of Peter A. Patterson (“Patterson Decl.”)), 
meaning that Judge Dever implicitly rejected it in granting the 
order. And he was right to do so.  
First, issue preclusion cannot be asserted against a party 
that lacked a full and fair opportunity to litigate the issue in 
the prior proceeding. See In re Microsoft Corp. Antitrust Litig., 
355 F.3d 322, 326 (4th Cir. 2004). Three of the Plaintiffs in this 
case——Heath, Whitley, and Swain——were not parties to the state 
court litigation, so they cannot be barred by issue preclusion. 
That is fatal to Defendants’ issue preclusion argument.  
Second, to determine this motion, this Court must determine 
whether Plaintiffs have a likelihood of success on the merits. The 
state trial court’s consent judgment is subject to appeal, and 
there are substantial arguments that the state court erred in 
entering it. See Fres-co Sys. USA, Inc. v. Hawkins, 690 F. App’x 
72, 79 (3d Cir. 2017); World Wide St. Preachers’ Fellowship v. 
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Reed, No. 05-cv-2565, 2006 WL 1984614, at *3 (M.D. Pa. July 13, 
2006). While we will not rehearse all of them here, two were 
particularly glaring. First, the state trial court lacked 
jurisdiction to enter the consent judgment. Under North Carolina 
law, claims are facial to the extent they seek relief beyond the 
plaintiffs themselves, see State v. Grady, 831 S.E.2d 542, 570 
(N.C. 2019), and facial claims must be heard and decided by a 
three-judge panel, see N.C. GEN. STAT. §§ 1-81.1, 1-267.1. Despite 
the fact that the North Carolina Alliance plaintiffs sought relief 
for the entire North Carolina electorate——as reflected by the scope 
of the consent judgment——the state trial court judge refused to 
transfer the case to a three-judge panel. Second, the state trial 
court judge lacked authority to enter the consent judgment over 
Plaintiffs Berger and Moore’s objections because state law grants 
them 
“final 
decision-making 
authority” 
in 
constitutional 
challenges to North Carolina laws. N.C. GEN. STAT. § 120-32.6(b). 
Because it lacked the consent of necessary parties, the consent 
judgment is void. See Owens v. Voncannon, 111 S.E.2d 700, 702 (N.C. 
1959). These are only two of the many errors undermining the 
consent judgment. Because it is likely to be reversed on appeal, 
any issue preclusive effect it has against Plaintiffs is likely to 
be eliminated.  
Third, issue preclusion is not an inexorable command; it is 
“qualified or rejected when [its] application would contravene an 
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overriding public policy or result in manifest injustice.” United 
States v. LaFatch, 565 F.2d 81, 83–84 (6th Cir. 1977); see also 
RESTATEMENT (SECOND) OF JUDGMENTS § 28 (1982); 18 FED. PRAC. & PROC. JURIS. 
§ 4426 (3d ed.). Applying issue preclusion here would be contrary 
to public policy and work a manifest injustice. For one, the 
fundamental nature of Plaintiffs’ Elections Clause claim is that 
the authority to regulate federal elections is constitutionally 
delegated to state legislatures. Consequently, a state trial 
court’s entering of a consent judgment at the behest of an 
executive branch agency should not be allowed to prevent this Court 
from considering the merits of the claim. For another, as explained 
above, the trial-court consent judgment is subject to appeal and 
Defendants are changing the rules of the election in violation of 
the Constitution as the election is ongoing. Any preclusive effect 
the order has may be ephemeral and the overriding importance of 
protecting the constitutional rights at issue here counsel in favor 
of disregarding it. 
Accordingly, Plaintiffs request that the Court enter a 
preliminary injunction: 
(1) 
Enjoining Defendants from enforcing and distributing 
Numbered Memo 2020-19 or any similar memoranda or policy 
statement that does not comply with the requirements of 
the Elections Clause; 
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(2) 
Enjoining Defendants from enforcing and distributing 
Numbered Memo 2020-22 or any similar memoranda or policy 
statement that does not comply with the requirements of 
the Elections Clause; 
(3) 
Enjoining Defendants from enforcing and distributing 
Numbered Memo 2020-23 or any similar memoranda or policy 
statement that does not comply with the requirements of 
the Elections Clause; and 
(4) 
Enjoining Defendants from enforcing and distributing the 
three Numbered Memoranda or any similar memoranda or 
policy statement that does not comply with the 
requirements of the Equal Protection Clause. 
In addition to the Memorandum and Reply filed in support of 
Plaintiffs’ previous Motion for a Temporary Restraining Order, 
Plaintiffs support this Motion with the accompanying Affidavit of 
Linda Devore, N.C. Alliance for Ret. Ams. v. N.C. State Bd. of 
Elections, No. 20 CVS 8881 (Wake Cnty. Super. Ct. Sept. 30, 2020) 
(“Devore Aff.”) (attached as Ex. 2 to Patterson Decl.). During the 
hearing on Plaintiffs’ Motion for a Temporary Restraining Order on 
October 2, 2020, Defendants’ counsel represented to Judge Dever 
that “[t]here is no evidence in the record of how many ballots, if 
any, have been spoiled so far for lack of a witness requirement. 
That is just speculation.” Hearing Tr. at 31:17–20; see also id. 
at 46:24–47:1 (“There is no evidence . . . in the record that any 
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voter’s ballot was spoiled based on a failure to comply with the 
witness requirement.”). The affidavit of Linda Devore, Secretary 
of the Cumberland County Board of Elections, which Defendants had 
access to because Plaintiffs filed it in the North Carolina 
Alliance action in state court, see Legislative Defendants’ 
Opposition to Plaintiffs’ & Executive Defendants’ Joint Motion for 
Entry of a Consent Judgment, Ex. 18, N.C. All. for Retired Ams., 
No. 20 CVS 8881 (N.C. Wake Cnty. Super. Ct. Sept. 30, 2020), 
indicates that in Cumberland County, before the update to Numbered 
Memo 2020-19, voters with a witness deficiency “were notified that 
their ballot had been spoiled and were mailed a new Absentee 
Ballot.” Devore Aff. ¶ 19. This is not surprising, as that is what 
Defendants instructed county boards to do in the initial version 
of Numbered Memo 2020-19 that was in place when voting started. It 
also is consistent with data on Defendants’ own website, which 
indicates that statewide thousands of absentee ballots have been 
spoiled to date. See Absentee Ballot Data, N.C. STATE BD. OF ELECTIONS 
(Oct. 6, 2020), https://bit.ly/33y6CgY.  
Plaintiffs also would like to present the Court with the 
following chart showing, by date, the twists and turns Defendants’ 
cure procedures have taken to underline the arbitrary nature of 
what they have done since voting started: 
 
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Date 
Governing Document 
Cure Procedures 
Aug. 21 
Original Numbered Memo 
2020-19 
 
(Doc. 1-4) 
• The following deficiencies 
could not be cured by a 
cure affidavit from the 
voter: 
o Witness did not print 
name 
o Witness did not print 
address 
o Witness did not sign 
o Witness signed on the 
wrong line 
Sept. 22 
Revised Numbered Memo 
2020-191 
 
(Doc. 45-1 Ex. B) 
• The following deficiencies 
could be cured by a cure 
affidavit from the voter: 
o Witness did not print 
name 
o Witness did not print 
address 
o Witness did not sign 
o Witness signed on the 
wrong line 
• Cure affidavit to be 
signed and returned by the 
voter merely required the 
voter to affirm that she 
was an eligible voter 
registered in the relevant 
county, that she voted and 
returned her absentee 
ballot for the November 3, 
2020 general election, and 
that she had not and would 
not vote more than one 
ballot in the election 
 
1 Further adding to this twisted evolution of the cure process, 
email correspondence indicates that Defendants may have directed county 
boards of elections on September 11 to stop sending voter notifications 
of deficiencies pending further guidance. See Plaintiffs’ Memorandum of 
Law in Support of Their Motion to Enforce Order Granting in Part 
Preliminary 
Injunction, 
Or, 
in 
the 
Alternative, 
Motion 
for 
Clarification, and to Expedite Consideration of Same, Ex. 1 at 6, Doc. 
148-1, Democracy N.C. v. N.C. State Bd. of Elections, No. 20-cv-457 
(M.D.N.C. Sept. 30, 2020) (attached as Ex. 3 to Patterson Decl.). 
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Oct. 1 
Numbered Memo 2020-27 
 
(Doc. 40-2) 
• Directed county boards of 
elections that when they 
received an executed 
absentee container-return 
envelope with a missing 
witness signature they 
were to take no action as 
to that envelope 
• County boards of elections 
were not to send a cure 
certification or reissue 
the ballot if they 
received an executed 
container-return envelope 
without a witness 
signature 
• Revised Numbered Memo 
2020-19 remained in effect 
in all other respects 
Oct. 4 
Numbered Memo 2020-28 
 
(attached as Ex. 4 to 
Patterson Decl.) 
• Places Numbered Memos 
2020-19, 2020-22, 2020-23, 
and 2020-27 on hold 
• Directs county boards of 
elections that when they 
receive an executed 
absentee container-return 
envelope with any 
deficiency they are to 
take no action as to that 
envelope 
• If a ballot has a 
deficiency, county boards 
of elections are not to 
issue a cure certification 
or spoil the ballot even 
upon a voter’s request 
 
Plaintiffs are ready and willing to file any additional 
submissions that may be considered by the Court if there are 
outstanding issues the Court would like addressed. 
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Conclusion 
 
For the foregoing reasons, Plaintiffs’ motion for a 
preliminary injunction should be granted. 
  
Dated: October 6, 2020 
 
/s/ Nicole J. Moss 
COOPER & KIRK, PLLC 
David H. Thompson 
Peter A. Patterson 
Nicole J. Moss (State Bar No. 
31958) 
1523 New Hampshire Avenue, NW 
Washington, D.C. 20036 
(202) 220-9600 
(202) 220-9601 
nmoss@cooperkirk.com 
Counsel for Plaintiffs 
Respectfully submitted, 
 
/s/ Nathan A. Huff 
PHELPS DUNBAR LLP 
4140 ParkLake Avenue, Suite 100 
Raleigh, North Carolina 27612 
Telephone: (919) 789-5300 
Fax: (919) 789-5301 
nathan.huff@phelps.com 
State Bar No. 40626 
Local Civil Rule 83.1 Counsel 
for Plaintiffs 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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CERTIFICATE OF WORD COUNT 
 
Pursuant to Local Rule 7.3(d)(1), the undersigned counsel 
hereby certifies that the foregoing Motion for a Preliminary 
Injunction and Memorandum in Support of Same, including body, 
headings, and footnotes, contains 2,038 words as measured by 
Microsoft Word. 
/s/ Nicole J. Moss 
Nicole J. Moss 
 
 
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CERTIFICATE OF SERVICE 
 
The undersigned counsel hereby certifies that on the 6th day 
of October, 2020, she electronically filed the foregoing Motion 
for a Preliminary Injunction and Memorandum in Support of Same 
with the Clerk of the Court using the CM/ECF system, which will 
send notification of such to all counsel of record in this matter.  
 
 
 
 
 
 
 
 
 
/s/ Nicole J. Moss 
Nicole J. Moss 
 
 
 
 
 
 
 
 
 
 
Case 1:20-cv-00911-WO-JLW   Document 60   Filed 10/06/20   Page 13 of 13

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