Memorandum opinion and order denying preliminary injunction — 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. 74 · 2020-10-14 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 
 
 
 
TIMOTHY K. MOORE, et al., 
) 
 
 
)  
 
Plaintiffs, 
) 
 
 
) 
 
v. 
)  
 
1:20CV911 
 
 
)  
 
 
DAMON CIRCOSTA, et al., 
) 
 
) 
 
Defendants, 
) 
 
 
) 
 
and 
 
) 
 
 
)  
NORTH CAROLINA ALLIANCE FOR 
)  
RETIRED AMERICANS, et al., 
) 
 
) 
 
Defendant-Intervenors.  
) 
 
 
 
 
 
 
 
PATSY J. WISE, et al., 
) 
 
 
) 
 
Plaintiffs, 
) 
 
 
) 
 
v. 
 
)  
 
1:20CV912 
 
 
 
) 
THE NORTH CAROLINA STATE 
) 
BOARD OF ELECTIONS, et al., 
) 
 
 
 
) 
 
 
Defendants, 
) 
 
 
 
) 
 
and 
 
) 
 
 
 
) 
NORTH CAROLINA ALLIANCE FOR 
)  
RETIRED AMERICANS, et al., 
) 
 
) 
 
Defendant-Intervenors.  
) 
 
 
 
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MEMORANDUM OPINION AND ORDER 
OSTEEN, JR., District Judge 
 
Presently before this court are two motions for a 
preliminary injunction in two related cases.  
In the first case, Moore v. Circosta, No. 1:20CV911 
(“Moore”), Plaintiffs Timothy K. Moore and Philip E. Berger 
(together, “State Legislative Plaintiffs”), Bobby Heath, Maxine 
Whitley, and Alan Swain (together, “Moore Individual 
Plaintiffs”) seek an injunction against the enforcement and 
distribution of several Numbered Memoranda issued by the North 
Carolina State Board of Elections pertaining to absentee voting. 
(Moore v. Circosta, No. 1:20CV911, Mot. for Prelim. Inj. and 
Mem. in Supp. (“Moore Pls.’ Mot.”) (Doc. 60).)  
In the second case, Wise v. North Carolina State Board of 
Elections, No. 1:20CV912 (“Wise”), Plaintiffs Patsy J. Wise, 
Regis Clifford, Samuel Grayson Baum, and Camille Annette Bambini  
(together, “Wise Individual Plaintiffs”), Donald J. Trump for 
President, Inc. (“Trump Campaign”), U.S. Congressman Gregory F. 
Murphy and U.S. Congressman Daniel Bishop (together, “Candidate 
Plaintiffs”), Republican National Committee (“RNC”), National 
Republican Senatorial Committee (“NRSC”), National Republican 
Congressional Committee (“NRCC”), and North Carolina Republican 
Party (“NCRP”) seek an injunction against the enforcement and 
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distribution of the same Numbered Memoranda issued by the North 
Carolina State Board of Elections at issue in Moore. (Wise Pls.’ 
Mem. in Supp. of Mot. to Convert the Temp. Restraining Order 
into a Prelim. Inj. (“Wise Pls.’ Mot.”) (Doc. 43).) 
By this order, this court finds Plaintiffs have established 
a likelihood of success on their Equal Protection challenges 
with respect to the State Board of Elections’ procedures for 
curing ballots without a witness signature and for the deadline 
extension for receipt of ballots. This court believes the 
unequal treatment of voters and the resulting Equal Protection 
violations as found herein should be enjoined. Nevertheless, 
under Purcell and recent Supreme Court orders relating to 
Purcell, this court is of the opinion that it is required to 
find that injunctive relief should be denied at this late date, 
even in the face of what appear to be clear violations. 
I. 
BACKGROUND 
 
A.  Parties 
 
 
1. 
Moore v. Circosta (1:20CV911) 
 
State Legislative Plaintiffs Timothy K. Moore and Philip E. 
Berger are the Speaker of the North Carolina House of 
Representatives and the President Pro Tempore of the North 
Carolina Senate, respectively. (Moore v. Circosta, No. 
1:20CV911, Compl. for Declaratory and Injunctive Relief (“Moore 
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Compl.”) (Doc. 1) ¶¶ 7-8.) Individual Plaintiffs Bobby Heath and 
Maxine Whitley are registered North Carolina voters who voted 
absentee by mail and whose ballots have been accepted by the 
State Board of Elections on September 21, 2020, and 
September 17, 2020, respectively. (Id. ¶¶ 9-10.) Plaintiff Alan 
Swain is a resident of Wake County, North Carolina, who is 
running as a Republican candidate to represent the State’s 
Second Congressional District. (Id. ¶ 11.) 
Executive Defendants include Damon Circosta, Stella 
Anderson, Jeff Carmon, III, and Karen Brinson Bell are members 
of the State Board of Elections (“SBE”). (Id. ¶¶ 12-15.) 
Executive Defendant Karen Brinson Bell is the Executive Director 
of SBE. (Id. ¶ 15.) 
Intervenor-Defendants North Carolina Alliance for Retired 
Americans, Barker Fowler, Becky Johnson, Jade Jurek, Rosalyn 
Kociemba, Tom Kociemba, Sandra Malone, and Caren Rabinowitz 
(“Alliance Intervenors”) are plaintiffs in the related state 
court action in Wake County Superior Court. (Moore v. Circosta, 
No. 1:20CV911 (Doc. 28) at 15.)1 Barker Fowler, Becky Johnson, 
Jade Jurek, Rosalyn Kociemba, Tom Kociemba, Sandra Malone, and 
                     
 
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. 
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Caren Rabinowitz are individual voters who are concerned they 
will be disenfranchised by Defendant SBE’s election rules, 
(id.), and North Carolina Alliance for Retired Americans (“NC 
Alliance”) is an organization “dedicated to promoting the 
franchise and ensuring the full constitutional rights of its 
members . . . .” (Id.) 
 
2. 
Wise v. N.C. State Bd. of Elections (1:20CV912) 
Individual Plaintiffs Patsy J. Wise, Regis Clifford, 
Camille Annette Bambini, and Samuel Grayson Baum are registered 
voters in North Carolina. (Wise v. N.C. State Bd. of Elections, 
No. 1:20CV912, Compl. for Declaratory and Injunctive Relief 
(“Wise Compl.”) (Doc. 1) ¶¶ 25-28.) Wise has already cast her 
absentee ballot for the November 3, 2020 election by mail, “in 
accordance with statutes, including the Witness Requirement, 
enacted by the General Assembly.” (Id. ¶ 25.) Plaintiffs 
Clifford, Bambini, and Baum intend to vote in the November 3, 
2020 election and are “concern[ed] that [their] vote[s] will be 
negated by improperly cast or fraudulent ballots.” (Id. ¶¶ 26-
28.)  
Plaintiff Trump Campaign represents the interests of 
President Donald J. Trump, who is running for re-election. (Id. 
¶¶ 29-30.) Together, Candidate Plaintiffs Trump Campaign, U.S. 
Congressman Daniel Bishop, and U.S. Congressman Gregory F. 
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Murphy are candidates who will appear on the ballot for 
re-election in the November 3, 2020 general election. (Id. 
¶¶ 29-32.)  
Plaintiff RNC is a national political party, (id. ¶¶ 33-
36), that seeks to protect “the ability of Republican voters to 
cast, and Republican candidates to receive, effective votes in 
North Carolina elections and elsewhere,” (id. ¶ 37), and avoid 
diverting resources and spending significant amounts of 
resources educating voters regarding confusing changes in 
election rules, (id. ¶ 38).   
Plaintiff NRSC is a national political party committee that 
is exclusively devoted to electing Republican candidates to the 
U.S. Senate. (Id. ¶ 40.) Plaintiff NRCC is the national 
organization of the Republican Party dedicated to electing 
Republicans to the U.S. House of Representatives. (Id. ¶ 41.) 
Plaintiff NRCP is a North Carolina state political party 
organization that supports Republican candidates running in 
North Carolina elections. (Id. ¶¶ 44-45.) 
 
Executive Defendant North Carolina SBE is the agency 
responsible for the administration of the elections laws of the 
State of North Carolina. (Id. ¶ 46.) As in Moore, included as 
Executive Defendants are Damon Circosta, Stella Anderson, Jeff 
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Carmon, III, and Karen Brinson Bell of the North Carolina SBE. 
(Id. ¶¶ 47-50.) 
 
Alliance Intervenors from Moore are also Intervenor-
Defendants in Wise. (1:20CV912 (Doc. 22).)  
B.  Factual Background 
1.  This Court’s Decision in Democracy 
On August 4, 2020, this court issued an order in a third 
related case, Democracy North Carolina v. North Carolina State 
Board of Elections, No. 1:20CV457, 2020 WL 4484063 (M.D.N.C. 
Aug. 4, 2020) (“the August Democracy Order”), 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 *1.) As none of the parties 
appealed that order, the injunctive relief is still in effect. 
2.  Release of the Original Memo 2020-19 
In response to the August Democracy Order, 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 (“Memo 2020-19” or “the original Memo”) 
(Moore v. Circosta, No. 1:20CV911, Moore Compl. (Doc. 1) Ex. 3 – 
NC State Bd. of Elections Mem. (“Original Memo 2020-19”) (Doc. 
1-4) at 2.) This guidance instructed county boards regarding 
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multiple topics. First, it instructed county election boards to 
“accept [a] voter’s signature on the container-return envelope 
if it appears to be made by the voter . . . [a]bsent clear 
evidence to the contrary,” even if the signature is illegible. 
(Id.) The guidance clarified that “[t]he law does not require 
that the voter’s signature on the envelope be compared with the 
voter’s signature in their registration record,” as 
“[v]erification of the voter’s identity is completed through the 
witness requirement.” (Id.) 
Second, the guidance sorted ballot deficiencies into two 
categories: curable and uncurable deficiencies. (Id. at 3.) 
Under this version of 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, and instead, was required to be spoiled, in 
the case of all other listed deficiencies, including a missing 
signature, printed 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 in writing regarding any ballot deficiency – 
curable or incurable - within one day of the county identifying 
the defect and to enclose either a cure affidavit or a new 
ballot, based on the type of deficiency at issue. (Id. at 4.) 
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In the case of an incurable deficiency, 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. (Id. at 4.) 
If the deficiency was curable by a cure affidavit, the 
guidance stated that the voter must return the cure affidavit by 
no later than 5 p.m. on Thursday, November 12, 2020. (Id.)  
3.  Rescission of Numbered Memo 2020-19 
The State began issuing ballots on September 4, 2020, 
marking the beginning of the election process. (Wise, No. 
1:20CV912, Wise Pls.’ Mot. (Doc. 43).) On September 11, 2020, 
SBE directed counties to stop notifying voters of deficiencies 
in their ballot, as advised in Memo 2020-19, pending further 
guidance from SBE. (Moore, No. 1:20CV911, Moore Pls.’ Mot. (Doc. 
60) Ex. 3, Democracy Email Chain (Doc. 60-4) at 6.) 
4.  Revision of Numbered Memo 2020-19 
On September 22, over two weeks after the State began 
issuing ballots, SBE issued a revised Numbered Memo 2020-19, 
which set forth a variety of new policies not implemented in the 
original Memo 2020-19. (Numbered Memo 2020-19 (“the Revised 
Memo” or “Revised Memo 2020-19”) (Moore v. Circosta, No. 
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1:20CV911 (Doc. 36) Ex. 3, Revised Numbered Memo 2020-19 
(“Revised Memo 2020-19”) (Doc. 36-3).) In subsequent litigation 
in Wake County Superior Court, SBE advised the court that both 
the original Memo 2020-19 and the Revised Memo were issued “to 
ensure full compliance with the injunction entered by Judge 
Osteen.” (Moore v. Circosta, No. 1:20CV911, Exec. Defs.’ Br. in 
Supp. of Joint Mot. for Entry of Consent Judgment (“SBE State 
Court Br.”) (Doc. 68-1) at 15.) Moreover, on September 28, 2020, 
during a status conference with a district court in the Eastern 
District of North Carolina prior to transfer to this court, 
counsel for Defendant SBE stated that Defendant SBE issued the 
revised Memo 2020-19 “in order to comply with Judge Osteen’s 
preliminary injunction in the Democracy N.C. action in the 
Middle District.” (Moore v. Circosta, No. 1:20CV911, Order 
Granting Mot. for Temp. Restraining Order (“TRO”) (Doc. 47) at 
9.) At that time, counsel for SBE indicated that they had not 
yet submitted the Revised Memo 2020-19 to this court, “but that 
it was on counsel’s list to get [it] done today.” (Id.) 
(internal quotations omitted.) On September 28, 2020, Defendant 
SBE filed the Revised Memo 2020-19 with this court in the 
Democracy action. (Democracy N.C. v. N.C. State Bd. of 
Elections, No. 1:20CV457 (Doc. 143-1).) 
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The revised guidance modified which ballot deficiencies 
fell into the curable and uncurable categories. Unlike the 
original 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 witness or assistant 
signature, could be cured via voter certification. (Moore v. 
Circosta, No. 1:20CV911, Revised Memo 2020-19 (Doc. 36-3) at 3.) 
According to the revised guidance, the only deficiencies that 
could not be cured by certification, and thus required 
spoliation, were where the envelope was unsealed or where the 
envelope indicated the voter was requesting a replacement 
ballot. (Id. at 4.) 
The cure certification in Revised 2020-19 required voters 
to sign and affirm the following: 
I am submitting this affidavit to correct a problem 
with missing information on the ballot envelope. I am 
an eligible voter in this election and registered to 
vote in [name] County, North Carolina. I solemnly 
swear or affirm that I voted and returned my 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. 
 
(Moore v. Circosta, No. 1:20CV911 (Doc. 45-1) at 34.) 
The revised guidance also extended the deadline for 
civilian absentee ballots to be received to align with that for 
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military and overseas voters. (Moore v. Circosta, No. 1:20CV911, 
Revised Memo 2020-19 (Doc. 36-3) at 5.) Under the original Memo 
2020-19, in order to be counted, civilian absentee ballots must 
have been received by the county board office by 5 p.m. on 
Election Day, November 3, 2020, or if postmarked, by Election 
Day, by 5:00 p.m. on November 6, 2020. (Moore v. Circosta, No. 
1:20CV911, Original Memo 2020-19 (Doc. 1-4) at 5 (citing N.C. 
Gen. Stat. § 163-231(b)).) Under the Revised Memo 2020-19, 
however, a late civilian ballot would be counted if postmarked 
on or before Election Day and received by 5:00 p.m. on 
November 12, 2020. (Moore v. Circosta, No. 1:20CV911, Revised 
Memo 2020-19 (Doc. 36-3) at 5.) This is the same as the deadline 
for military and overseas voters, as indicated in the Original 
Memo 2020-19. (Id.)2 
5.  Numbered Memoranda 2020-22 and 2020-23 
SBE issued two other Numbered Memoranda on September 22, 
2020, in addition to Revised Numbered Memo 2020-19. 
First, SBE issued Numbered Memo 2020-22, the purpose of 
which was to further define the term postmark used in Numbered 
Memo 2020-19. (Wise, No. 1:20CV912, Wise Compl. (Doc. 1), Ex. 3, 
                     
 
2  In Democracy N. Carolina v. N.C. State Board of 
Elections, No. 1:20CV457, an order is entered contemporaneously 
with this Memorandum Opinion and Order enjoining certain aspects 
of the Revised Memo 2020-19. 
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N.C. State Bd. of Elections Mem. (“Memo 2020-22”) (Doc. 1-3) at 
2.) Numbered Memo 2020-22 advised that although “[t]he postmark 
requirement for ballots received after Election Day is in place 
to prohibit a voter from learning the outcome of an election and 
then casting their ballot. . . . [T]he USPS does not always 
affix a postmark to a ballot return envelope.” (Id.) Recognizing 
that SBE now offers “BallotTrax,” a system in which voters and 
county boards can track the status of a voter’s absentee ballot, 
SBE said “it is possible for county boards to determine when a 
ballot was mailed even if does not have a postmark.” (Id.) 
Moreover, SBE recognized that commercial carriers offer tracking 
services that document when a ballot was deposited with the 
commercial carrier. (Id.) For these reasons, the new guidance 
stated that a ballot would be considered postmarked by Election 
Day if it had a postmark, there is information in BallotTrax, or 
“another tracking service offered by the USPS or a commercial 
carrier, indicat[es] that the ballot was in the custody of USPS 
or the commercial carrier on or before Election Day.” (Id. 
at 3.) 
Second, SBE issued Numbered Memo 2020-23, which provides 
“guidance and recommendations for the safe, secure, and 
controlled in-person return of absentee ballots.” (Wise, No. 
1:20CV912, Wise Compl. (Doc. 1), Ex. 4, N.C. State Bd. of 
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Elections Mem. (“Memo 2020-23”) (Doc. 1-4) at 2.) Referring to 
N.C. Gen. Stat. § 163-226.3(a)(5),3 which prohibits any person 
other than the voter’s near relative or legal guardian to take 
possession of an absentee ballot of another voter for delivery 
or for return to a county board of elections, (id.), Numbered 
Memo 2020-23 confirms that “an absentee ballot may not be left 
in an unmanned drop box.” (Id.) The guidance reminds county 
boards that they must keep a written log when any person returns 
an absentee ballot in person, which includes the name of the 
individual returning the ballot, their relationship to the 
voter, the ballot number, and the date it was received. (Id. at 
3.) If the individual who drops off the ballot is not the voter, 
their near relative, or legal guardian, the log must also record 
their address and phone number. (Id.) 
At the same time, the guidance advises county boards that 
“[f]ailure to comply with the logging requirement, or delivery 
or an absentee ballot by a person other than the voter, the 
voter’s near relative, or the voter’s legal guardian, is not 
sufficient evidence in and of itself to establish that the voter 
did not lawfully vote their ballot.” (Id. at 3.) Instead, the 
guidance advises the county board that they “may . . . consider 
                     
3 The Memoranda incorrectly cites this statute as N.C. Gen. 
Stat. § 163-223.6(a)(5). 
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the delivery of a ballot . . . in conjunction with other 
evidence in determining whether the ballot is valid and should 
be counted.” (Id. at 4.)   
6.  Consent Judgment in North Carolina Alliance for 
Retired Americans v. North Carolina State Bd. of 
Elections 
 
On August 10, 2020, NC Alliance, the Defendant-Intervenors 
in the two cases presently before this court, filed an action 
against SBE in North Carolina’s Wake County Superior Court 
challenging, 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. (Moore v 
Circosta, No. 1:20CV911, SBE State Court Br. (Doc. 68-1) at 15.) 
On August 12, 2020, Philip Berger and Timothy Moore, 
Plaintiffs in Moore, filed a notice of intervention as of right 
in the state court action and became parties to that action as 
intervenor-defendants on behalf of the North Carolina General 
Assembly. (Id. at 16.) 
On September 22, 2020, 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 Pls.’ Mot. (Doc. 
43) at 6), until the parties did not attend a previously 
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scheduled deposition, (Democracy v. N.C. Bd. of Elections, No. 
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 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. (Moore v. Circosta, No. 1:20CV911, SBE State Court 
Br. (Doc. 68-1) at 16.) 
In its filings with the state court, SBE frequently cited 
this court’s decision in Democracy as a reason for why the Wake 
County Superior Court Judge should accept the Consent Judgment. 
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 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, 
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“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 Revised Memo 2020-19 as part of the 
consent judgment would comply with this injunction. (Id.) SBE 
indicated that it had notified the federal court of the cure 
mechanism process on September 22, 2020, (id.), although this 
court was not made aware of the cure procedure until September 
28, 2020, (Democracy N.C. v. N.C. State Bd. of Elections, No. 
1:20CV457 (Doc. 143-1)), the day before the processing of 
absentee ballots was scheduled to begin on September 29, 2020, 
(Moore v. Circosta, No. 20CV911 Transcript of Oral Argument 
(“Oral Argument Tr.”)(Doc. 70) at 109.) 
On October 2, 2020, the Wake County Superior Court entered 
the Stipulation and Consent Judgment. (Moore v. Circosta, No. 
1:20CV911, State Court Consent Judgment (Doc. 45-1).) Among its 
recitals, which Defendant SBE drafted and submitted to the judge 
as is customary in state court, (Oral Argument Tr. (Doc. 70) at 
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 
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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 (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. 
 
(State Court Consent Judgment (Doc. 45-1) at 6.)4 
 
7.  Numbered Memoranda 2020-27, 2020-28, and 2020-29 
 
In addition to the Numbered Memoranda issued on 
September 22, 2020, as part of the consent judgment in the state 
court case, SBE has issued three additional numbered memoranda. 
First, on October 1, 2020, SBE issued Numbered Memo 
2020-27, which was issued in response to this court’s order in 
Democracy regarding the need for parties to attend a status 
conference to discuss Numbered Memo 2020-19. (Moore v. Circosta, 
No. 1:20CV911 (Doc. 40-2) at 2.) The guidance advises county 
boards that this court did not find Numbered Memo 2020-19: 
“consistent with the Order entered by this Court on 
August 4, 2020,” and indicates that its preliminary 
injunction order should “not be construed as finding 
that the failure of a witness to sign the application 
and certificate as a witness is a deficiency which may 
                     
4 An additional discussion of the facts related to SBE’s use 
of this court’s order in obtaining a Consent Judgment is set out 
in this court’s order in Democracy v. North Carolina State Board 
of Elections, No. 1:20CV457 (M.D.N.C. Oct. 14, 2020) (enjoining 
witness cure procedure).   
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be cured with a certification after the ballot has 
been returned.” 
 
(Id.) “In order to avoid confusion while related matters are 
pending in a number of courts,” the guidance advises that 
“[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.) In all other respects, SBE 
stated that Revised Numbered Memo 2020-19 remains in effect. 
(Id.) 
 
Second, on October 4, 2020, SBE issued Numbered Memo 
2020-28, which states that both versions of Numbered Memo 
2020-19, as well as Numbered Memoranda 2020-22, 2020-23, and 
2020-27 “are on hold until further notice” following the 
temporary restraining order entered in the instant cases on 
October 3, 2020. (Moore v. Circosta, No. 1:20CV911 (Doc. 60-5) 
at 2.) Moreover, the guidance reiterated that “[c]ounty boards 
that receive an executed absentee container-return envelope with 
a deficiency shall take no action as to that envelope,” 
including sending a cure notification or reissuing the ballot. 
(Id. at 2-3.) Instead, the guidance directs county boards to 
store envelopes with deficiencies in a secure location until 
further notice. (Id. at 3.) If, however, a county board had 
previously issued a ballot and the second envelope is returned 
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without any deficiencies, the guidance permits the county board 
to approve the second ballot. (Id.) 
 
Finally, on October 4, 2020, SBE issued Numbered Memo 
2020-29, which states that it provides “uniform guidance and 
further clarification on how to determine if the correct address 
can be identified if the witness’s or assistant’s address on an 
absentee container-return envelope is incomplete. (Wise, No. 
1:20CV912 (Doc. 43-5).) First, the guidance clarifies that if a 
witness or assistant does not print their address, the envelope 
is deficient. (Id. at 2.) Second, the guidance states that 
failure to list a witness’s ZIP code does not require a cure; a 
witness or assistant’s address may be a post office box or other 
mailing address; and if the address is missing a city or state, 
but the county board can determine the correct address, the 
failure to include this information does not invalidate the 
container-return envelope. (Id.) Third, if both the city and ZIP 
code are missing, the guidance directs staff to determine 
whether the correct address can be identified. (Id.) If they 
cannot be identified, then the envelope is deficient. (Id.) 
C. 
Procedural History 
On September 26, 2020, Plaintiffs in Moore filed their 
action in the United States District Court for the Eastern 
District of North Carolina. (Moore Compl. (Doc. 1).) Plaintiffs 
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in Wise also filed their action in the United States District 
Court for the Eastern District of North Carolina on 
September 26, 2020. (Wise Compl. (Doc. 1).) 
Alliance Intervenors filed a Motion to Intervene as 
Defendants in Moore on September 30, 2020, (Moore v. Circosta, 
No. 1:20CV911 (Doc. 27)), and in Wise on October 2, 2020, (Wise, 
No. 1:20CV912 (Doc. 21)). This court granted Alliance 
Intervenors’ Motion to Intervene on October 8, 2020. (Moore v. 
Circosta, No. 1:20CV911 (Doc. 67); Wise, No. 1:20CV912 (Doc. 
49).) 
The district court in the Eastern District of North 
Carolina issued a temporary restraining order in both cases on 
October 3, 2020, and transferred the actions to this court for 
this court’s “consideration of additional or alternative 
injunctive relief along with any such relief in Democracy North 
Carolina v. North Carolina State Board of Elections . . . .” 
(Moore v. Circosta, 1:20CV911, TRO (Doc. 47) at 2; Wise, No. 
1:20CV912 (Doc. 25) at 2.) 
On October 5, 2020, this court held a Telephone Conference, 
(Moore v. Circosta, No. 1:20CV911, Minute Entry 10/05/2020; 
Wise, No. 1:20CV912, Minute Entry 10/05/2020), and issued an 
order directing the parties to prepare for a hearing on the 
temporary restraining order and/or a preliminary injunction and 
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to submit additional briefing, (Moore v. Circosta, No. 1:20CV911 
(Doc. 51); Wise, No. 1:20CV912 (Doc. 30)). On October 6, 2020, 
Plaintiffs in Wise filed a Memorandum in Support of Plaintiffs’ 
Motion to Convert the Temporary Restraining Order into a 
Preliminary Injunction, (Wise Pls.’ Mot. (Doc. 43)), and 
Plaintiffs in Moore filed a Motion for a Preliminary Injunction 
and Memorandum in Support of Same, (Moore Pls.’ Mot. (Doc. 60)). 
Defendant SBE filed a response to Plaintiffs’ motions in both 
cases on October 7, 2020. (Moore v. Circosta, No. 1:20CV911, 
State Defs.’ Resp. to Pls.’ Mot. for Prelim. Inj. (“SBE Resp.”) 
(Doc. 65); Wise, No. 1:20CV912 (Doc. 45).) Alliance Intervenors 
also filed a response to Plaintiffs’ motions in both cases on 
October 7, 2020. (Moore v. Circosta, No. 1:20CV911, Proposed 
Intervenors’ Mem. in Opp’n to Pls.’ Mot. for a Prelim. Inj. 
(“Alliance Resp.”) (Doc. 64); Wise, No. 1:20CV912 (Doc. 47).)5 
This court held oral arguments on October 8, 2020, in which 
all of the parties in these two cases presented arguments with 
respect to Plaintiffs’ motions for a preliminary injunction. 
                     
5 Defendant SBE and Alliance Intervenors’ memoranda filed in 
opposition to Plaintiffs’ motions for a preliminary injunction 
in Moore are identical to those that each party filed in Wise. 
(Compare SBE Resp. (Doc. 65) and Alliance Resp. (Doc. 64) with 
Wise, No. 1:20CV912 (Doc. 45) and Wise, No. 1:20CV912 (Doc. 
47).) For clarity and ease, this court will cite only to the 
briefs Defendant SBE and Alliance Intervenors filed in Moore in 
subsequent citations. 
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(Moore v. Circosta, No. 1:20CV911, Minute Entry 10/08/2020; 
Wise, No. 1:20CV912, Minute Entry 10/08/2020.) 
This court has federal question jurisdiction over these 
cases under 28 U.S.C. § 1331. This matter is ripe for 
adjudication. 
D. 
Preliminary Injunction Standard of Review 
 
“A plaintiff seeking a preliminary injunction must 
establish that he is likely to succeed on the merits, that he is 
likely to suffer irreparable harm in the absence of preliminary 
relief, that the balance of equities tips in his favor, and that 
an injunction is in the public interest.” Winter v. Nat. Res. 
Def. Council, Inc., 555 U.S. 7, 20 (2008). Such an injunction 
“is an extraordinary remedy intended to protect the status quo 
and prevent irreparable harm during the pendency of a lawsuit.” 
Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017).  
II. ANALYSIS 
 
Executive Defendants and Alliance Intervenors challenge 
Plaintiffs’ standing to seek a preliminary injunction regarding 
their Equal Protection, Elections Clause, and Electors Clause 
claims. (Alliance Resp. (Doc. 64) at 14-18; SBE Resp. (Doc. 65) 
at 11-13.) Executive Defendants and Alliance Intervenors also 
challenge this court’s ability to hear this action under 
abstention, (Alliance Resp. (Doc. 64) at 10-14; SBE Resp. (Doc. 
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65) at 10-11), Rooker-Feldman (Alliance Resp. (Doc. 64) at 13), 
and preclusion doctrines, (SBE Resp. (Doc. 65) at 7-10). 
Finally, Executive Defendants and Alliance Intervenors attack 
Plaintiffs’ motions for preliminary injunction on the merits. 
(Alliance Resp. (Doc. 64) at 19-26; SBE Resp. (Doc. 65) at 
13-18.) 
 
Because Rooker-Feldman, abstention, and preclusion are 
dispositive issues, this court addresses them first, then 
addresses Plaintiffs’ motions on standing and the likelihood of 
success on the merits.  
 
As to each of these abstention doctrines, as will be 
explained further, this court’s preliminary injunction order, 
(Doc. 124), in Democracy North Carolina v. North Carolina State 
Board of Elections, No. 1:20CV457, played a substantial role as 
relevant authority supporting SBE’s request for approval, in 
North Carolina state court, of Revised Memo 2020-19 and the 
related Consent Judgment. (See discussion infra Part 
II.D.3.b.i.) As Berger, Moore, and SBE are all parties in 
Democracy, this court initially finds that abstention doctrines 
do not preclude this court’s exercise of jurisdiction. This 
court’s August Democracy Order was issued prior to the filing of 
these state court actions, and that Order was the basis of the 
subsequent grant of affirmative relief by the state court. This 
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court declines to find that any abstention doctrine would 
preclude it from issuing orders in aid of its jurisdiction, or 
as to parties appearing in a pending case in this court.  
A.  Rooker-Feldman Doctrine 
Rooker-Feldman doctrine is a jurisdictional doctrine that 
prohibits federal district courts from “‘exercising appellate 
jurisdiction over final state-court judgments.’” See Thana v. 
Bd. of License Comm’rs for Charles Cnty., 827 F.3d 314, 319 (4th 
Cir. 2016) (quoting Lance v. Dennis, 546 U.S. 459, 463 (2006) 
(per curiam)). The presence or absence of subject matter 
jurisdiction under Rooker-Feldman is a threshold issue that this 
court must determine before considering the merits of the case. 
Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 196 (4th Cir. 2002). 
Although Rooker-Feldman originally limited only federal-
question jurisdiction, the Supreme Court has recognized the 
applicability of the doctrine to cases brought under diversity 
jurisdiction: 
Rooker and Feldman exhibit the limited circumstances 
in which this Court’s appellate jurisdiction over 
state-court judgments, 28 U.S.C. § 1257, precludes a 
United States district court from exercising 
subject-matter jurisdiction in an action it would 
otherwise be empowered to adjudicate under a 
congressional grant of authority, e.g., § 1330 
(suits against foreign states), § 1331 (federal 
question), and § 1332 (diversity). 
 
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See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 
291-92 (2005). Under the Rooker-Feldman doctrine, courts lack 
subject matter jurisdiction to hear “cases brought by [1] state-
court losers complaining of [2] injuries caused by state-court 
judgments [3] rendered before the district court proceedings 
commenced and [4] inviting district court review and rejection 
of those judgments.” Id. at 284. The doctrine is “narrow and 
focused.” Thana, 827 F.3d at 319. “[I]f a plaintiff in federal 
court does not seek review of the state court judgment itself 
but instead ‘presents an independent claim, it is not an 
impediment to the exercise of federal jurisdiction that the same 
or a related question was earlier aired between the parties in 
state court.’” Id. at 320 (quoting Skinner v. Switzer, 562 U.S. 
521, 532 (2011)). Rather, “any tensions between the two 
proceedings should be managed through the doctrines of 
preclusion, comity, and abstention.” Id. (citing Exxon, 544 U.S. 
at 292–93).  
Moreover, “the Rooker–Feldman doctrine applies only when 
the loser in state court files suit in federal district court 
seeking redress for an injury allegedly caused by the state 
court’s decision itself.” Davani v. Va. Dep’t of Transp., 434 
F.3d 712, 713 (4th Cir. 2006); see also Hulsey v. Cisa, 947 F.3d 
246, 250 (4th Cir. 2020) (“A plaintiff’s injury at the hands of 
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a third party may be ‘ratified, acquiesced in, or left 
unpunished by’ a state-court decision without being ‘produced 
by’ the state-court judgment.”) (internal citations omitted). 
Here, Plaintiffs are challenging SBE’s election procedures 
and seeking injunction of those electoral rules, not attempting 
to directly appeal results of a state court order. More 
importantly, however, the Fourth Circuit has previously found 
that a party is not a state court loser for purposes of Rooker-
Feldman if “[t]he [state court] rulings thus were not ‘final 
state-court judgments’” against the party bringing up the same 
issues before a federal court. Hulsey, 947 F.3d at 251 (quoting 
Lance, 546 U.S. at 463. In the Alliance state court case, 
Alliance brought suit against SBE. The Plaintiffs from this case 
were intervenors. They were not parties to the Settlement 
Agreement and were in no way properly adjudicated “state court 
losers.” Given the Supreme Court’s intended narrowness of the 
Rooker-Feldman doctrine, see Lance, 546 U.S. at 464, and 
Plaintiffs’ failure to fit within the Fourth Circuit’s 
definition of “state-court losers,” this court will decline to 
abstain under the Rooker-Feldman doctrine. 
B. 
Abstention 
1. 
Colorado River Abstention 
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Abstention “is the exception, not the rule.” Colo. River 
Water Conservation Dist. v. United States, 424 U.S. 800, 813 
(1976); see also id. at 817 (noting the “virtually unflagging 
obligation of the federal courts to exercise the jurisdiction 
given them”). Thus, this court’s task “is not to find some 
substantial reason for the exercise of federal jurisdiction,” 
but rather “to ascertain whether there exist ‘exceptional’ 
circumstances, the ‘clearest of justifications,’ . . . to 
justify the surrender of that jurisdiction.” Moses H. Cone Mem’l 
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26 (1983). 
First, and crucially for this case, the court must 
determine whether there are ongoing state and federal 
proceedings that are parallel. Al-Abood ex rel. Al-Abood v. El-
Shamari, 217 F.3d 225, 232 (4th Cir. 2000) (“The threshold 
question in deciding whether Colorado River abstention is 
appropriate is whether there are parallel suits.”); Ackerman v. 
ExxonMobil Corp., 734 F.3d 237, 248 (4th Cir. 2013) (finding 
that abstention is exercised only “in favor of ongoing, parallel 
state proceedings” (emphasis added)). In this instance, the 
parties have failed to allege any ongoing state proceeding that 
this federal suit might interfere with. In fact, Plaintiffs in 
this case were excluded as parties in the Consent Judgment and 
are bringing independent claims in this federal court alleging 
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violations, inter alia, of the Equal Protection Clause. This 
court does not find that Colorado River abstention prevents it 
from adjudicating Equal Protection claims raised by parties who 
were not parties to the Consent Judgment.  
2.  Pennzoil Abstention 
As alleged by Defendants, Pennzoil does dictate that 
federal courts should not “interfere with the execution of state 
judgments.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987). 
However, in the very next sentence, the Pennzoil court caveats 
that this doctrine applies “[s]o long as those challenges relate 
to pending state proceedings.” Id. In fact, in Pennzoil itself, 
the Court clarified that abstention was proper because “[t]here 
is at least one pending judicial proceeding in the state courts; 
the lawsuit out of which Texaco’s constitutional claims arose is 
now pending before a Texas Court of Appeals in Houston, Texas.” 
Id. at 14 n.13. 
Abstention was also justified in Pennzoil because the Texas 
state court was not presented with the contested federal 
constitutional questions, and thus, “when [the subsequent] case 
was filed in federal court, it was entirely possible that the 
Texas courts would have resolved this case . . . without 
reaching the federal constitutional questions.” Id. at 12. In 
the present case, Plaintiffs raised their constitutional claims 
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in the state court prior to the entry of the Consent Judgment. 
The state court, through the Consent Judgment and without taking 
evidence, adjudicated those claims as to the settling parties. 
The Consent Judgment is effective through the 2020 Election and 
specifies no further basis upon which Plaintiffs here may seek 
relief. As a result, there does not appear to be any relief 
available to Plaintiffs for the federal questions raised here. 
For these reasons, this court will also decline to abstain under 
Pennzoil. 
3.  Pullman Abstention 
Pullman abstention can be exercised where: (1) there is “an 
unclear issue of state law presented for decision”; and (2) 
resolution of that unclear state law issue “may moot or present 
in a different posture the federal constitutional issue such 
that the state law issue is potentially dispositive.” Educ. 
Servs., Inc. v. Md. State Bd. for Higher Educ., 710 F.2d 170, 
174 (4th Cir. 1983); see also N.C. State Conference of NAACP v. 
Cooper, 397 F. Supp. 3d 786, 794 (M.D.N.C. 2019). Pullman does 
not apply here because any issues of state law are not, in this 
court’s opinion, unclear or ambiguous. Alliance’s brief in Moore 
posits that “whether NCSBE has the authority to enter the 
Consent Judgment and promulgate the Numbered Memos” are at the 
center of this case, thereby urging Pullman abstention. 
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(Alliance Resp. (Doc. 64 at 12.) SBE has undisputed authority to 
issue guidance consistent with state law and may issue guidance 
contrary to state law only in response to natural disasters – 
the court finds this, though ultimately unnecessary to the 
relief issued in this case, fairly clear. (See discussion supra 
at Part II.E.2.b.ii.) Moreover, this court has already expressly 
assessed and upheld the North Carolina state witness 
requirement, which is the primary state law at issue in this 
case. Democracy N. Carolina, 2020 WL 4484063, at *48. 
Furthermore, Defendants and Intervenors would additionally 
need to show how “resolution of . . . state law issues pending 
in state court” would “eliminate or substantially modify 
the federal constitutional issues raised in Plaintiffs’ 
Complaint.” N.C. State Conference of NAACP, 397 F. Supp. 3d at 
796. As Alliance notes, the Plaintiffs did not appeal the state 
court’s conclusions, but sought relief in federal court – there 
is no state law issue pending in state court here. For all of 
these reasons, this court declines to abstain under Pullman.  
 
C. 
Issue Preclusion 
Collateral estoppel, or issue preclusion “refers to the 
effect of a prior judgment in foreclosing successive litigation 
of an issue of fact or law actually litigated and resolved in a 
valid court determination essential to the prior judgment, 
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whether or not the issue arises on the same or a different 
claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001). The 
purpose of this doctrine is to “protect the integrity of the 
judicial process . . . .” Id. at 749 (internal quotations 
omitted).  
Plaintiffs argue that issue preclusion does not bar their 
Equal Protection claims. Citing Arizona v. California, 530 U.S. 
392 (2000), Plaintiffs in Wise argue that a negotiated 
settlement between parties, like the consent judgment between 
the Alliance Intervenors and Defendant SBE in Wake County 
Superior Court, does not constitute a final judgment for issue 
preclusion. (Wise Pls.’ Mot. (Doc. 43) at 23.) Plaintiffs in 
Moore, citing In re Microsoft Corp. Antitrust Litig., 355 F.3d 
322 (4th Cir. 2004), argue that issue preclusion cannot be 
asserted because the Individual Plaintiffs in Moore were not 
parties to the state court litigation that resulted in the 
consent judgment. (Moore Pls.’ Mot. (Doc. 60) at 4.) 
In response, Defendant SBE argues that, under North 
Carolina law, issue preclusion applies where (1) the issue is 
identical to the issue actually litigated and necessary to a 
prior judgment, (2) the prior action resulted in a final 
judgment on the merits, and (3) the plaintiffs in the latter 
action are the same as, or in privity with, the parties in the 
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earlier action, (SBE Resp. (Doc. 65) at 7), and the parties in 
these federal actions and those in the state actions are in 
privity under the third element of the test, (id. at 8).  
This court finds that issue preclusion does not bar 
Plaintiffs’ claims. In Arizona v. California, the Supreme Court 
held that “[i]n most circumstances, it is recognized that 
consent agreements ordinarily are intended to preclude any 
further litigation on the claim presented but are not intended 
to preclude further litigation on any of the issues presented.” 
530 U.S. at 414 (internal quotations omitted). Moreover, 
“settlements ordinarily occasion no issue preclusion . . . 
unless it is clear . . . that the parties intend their agreement 
to have such an effect.” Id.  
The Consent Judgment SBE and Alliance entered into does not 
clearly demonstrate that they intended their agreement to have 
an issue preclusive effect with regard to claims brought now by 
Plaintiffs in Moore and Wise. The language of the Consent 
Judgment demonstrates that it “constitutes a settlement and 
resolution of Plaintiffs’ claims against Executive Defendants 
pending in this Lawsuit” and that “by signing this Stipulation 
and Consent Judgment, they are releasing any claims . . . that 
they might have against Executive Defendants.” (State Court 
Consent Judgment (Doc. 45-1) at 14 (emphasis added).) Although 
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Timothy Moore and Philip Berger, State Legislative Plaintiffs in 
Moore, were Defendant-Intervenors in the NC Alliance action, 
they were not parties to the consent judgment. (Id.) Thus, 
because the plain language of the agreement did not expressly 
indicate an intention to preclude Plaintiffs Moore and Berger 
from litigating the issue in subsequent litigation, neither 
these State Legislative Plaintiffs, nor any other parties with 
whom they may or may not be in privity, are estopped from 
raising these claims now before this court. 
D. 
Plaintiffs’ Equal Protection Claims 
 
Plaintiffs raise “two separate theories of an equal 
protection violation,” – a “vote dilution claim, and an 
arbitrariness claim.” (Oral Argument Tr. (Doc. 70) at 52; see 
also Wise Pls.’ Mot. (Doc. 43) at 12-15.) 
 
1. 
Voting Harms Prohibited by the Equal Protection  
 
 
 
Clause 
 
Under the Fourteenth Amendment of the U.S. 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 several constitutional provisions 
that “protects the right of all qualified citizens to vote, in 
state as well as federal elections.” Reynolds v. Sims, 377 U.S. 
533, 554 (1964). Because the Fourteenth Amendment protects not 
only the “initial allocation of the franchise,” as well as “to 
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the manner of its exercise,” Bush v. Gore, 531 U.S. 98, 104 
(2000), “lines may not be drawn which are inconsistent with the 
Equal Protection Clause . . . .” Id. at 105 (citing Harper v. 
Va. State Bd. of Elections, 383 U.S. 663, 665 (1966)).  
The Supreme Court has identified two theories of voting 
harms prohibited by the Fourteenth Amendment. First, the Court 
has identified a harm caused by “debasement or dilution of the 
weight of a citizen’s vote,” also referred to “vote dilution.” 
Reynolds, 377 U.S. at 555. Courts find this harm arises where 
gerrymandering under a redistricting plan has diluted the 
“requirement that all citizens’ votes be weighted equally, known 
as the one person, one vote principle,” and resulted in one 
group or community’s vote counting more than another’s. Raleigh 
Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 
333, 340 (4th Cir. 2016); see also Gill v. Whitford, 585 U.S. 
____, ____, 138 S. Ct. 1916, 1930-31 (2018) (finding that the 
“harm” of vote dilution “arises from the particular composition 
of the voter’s own district, which causes his vote – having been 
packed or cracked – to carry less weight than it would carry in 
another, hypothetical district”); Wesberry v. Sanders, 376 U.S. 
1, 18 (1964) (finding that vote dilution occurred where 
congressional districts did not guarantee “equal representation 
for equal numbers of people”); Wright v. North Carolina, 787 
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F.3d 256, 268 (4th Cir. 2015) (invalidating a voter 
redistricting plan). 
Second, the Court has found that the Equal Protection 
Clause is violated where the state, “[h]aving once granted the 
right to vote on equal terms,” through “later arbitrary and 
disparate treatment, value[s] one person’s vote over that of 
another.” Bush, 531 U.S. at 104-05 (2000); see also Baker v. 
Carr, 369 U.S. 186, 208 (1962) (“A citizen’s right to a vote 
free of arbitrary impairment by state action has been judicially 
recognized as a right secured by the Constitution, when such 
impairment resulted from dilution by a false tally, or by a 
refusal to count votes from arbitrarily selected precincts, or 
by a stuffing of the ballot box.”) (internal citations omitted). 
This second theory of voting harms requires courts to balance 
competing concerns around access to the ballot. On the one hand, 
a state should not engage in practices which prevent qualified 
voters from exercising their right to vote. 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, 379-80 (1963). On the other hand, the state must 
protect against “the diluting effect of illegal ballots.” Id. at 
380. Because “the right to have one’s vote counted has the same 
dignity as the right to put a ballot in a box,” id., the vote 
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dilution occurs only where there is both “arbitrary and 
disparate treatment.” Bush, 531 U.S. at 105. To this end, states 
must have “specific rules designed to ensure uniform treatment” 
of a voter’s ballot. Id. at 106. 
2. 
Standing to Bring Equal Protection Claims 
 
In light of the harms prohibited by the Equal Protection 
Clause, this court must first consider whether Plaintiffs have 
standing to bring these claims. 
 
For a case or controversy to be justiciable in federal 
court, a plaintiff must allege “such a personal stake in the 
outcome of the controversy as to warrant his invocation of 
federal court jurisdiction and to justify exercise of the 
court’s remedial powers on his behalf.” White Tail Park, Inc. v. 
Stroube, 413 F.3d 451, 458 (4th Cir. 2005) (quoting Planned 
Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 789 (4th Cir. 
2004)).  
 
The party seeking to invoke the federal courts’ 
jurisdiction has the burden of satisfying Article III’s standing 
requirement. Miller v. Brown, 462 F.3d 313, 316 (4th Cir. 2006). 
To meet that burden, a plaintiff must demonstrate three 
elements: (1) that the plaintiff has suffered an injury in fact 
that is “concrete and particularized” and “actual or imminent”; 
(2) that the injury is fairly traceable to the challenged 
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conduct of the defendant; and (3) that a favorable decision is 
likely to redress the injury. Lujan v. Defenders of Wildlife, 
504 U.S. 555, 560-61 (1992).  
 
In multi-plaintiff cases, “[a]t least one plaintiff must 
have standing to seek each form of relief requested in the 
complaint.” Town of Chester v. Laroe Estates, Inc., 581 U.S. 
____, ____, 137 S. Ct. 1645, 1651 (2017). Further, if there is 
one plaintiff “who has demonstrated standing to assert these 
rights as his own,” the court “need not consider whether the 
other individual and corporate plaintiffs have standing to 
maintain the suit.” Vill. of Arlington Heights v. Metro. Hous. 
Dev. Corp., 429 U.S. 252, 264 & n.9 (1977).  
In the voting context, “voters who allege facts showing 
disadvantage to themselves as individuals have standing to sue,” 
Baker, 369 U.S. at 206, so long as their claimed injuries are 
“distinct from a ‘generally available grievance about the 
government,’” Gill, 138 S. Ct. at 1923 (quoting Lance v. 
Coffman, 549 U.S. 437, 439 (2007) (per curiam)). 
Defendant SBE and Alliance Intervenors argue that 
Individual Plaintiffs in Wise and Moore have not alleged a 
concrete and particularized injury under either of the two Equal 
Protection theories. (Alliance Resp. (Doc. 64) at 14-15; SBE 
Resp. (Doc. 65) at 12-13.)  
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First, under a vote dilution theory, they argue that courts 
have “repeatedly rejected this theory as a basis for standing, 
both because it is unduly speculative and impermissibly 
generalized.” (Alliance Resp. (Doc. 64) at 17.) Second, under an 
arbitrary and disparate treatment theory, they argue that the 
injury is too generalized because the Numbered Memoranda apply 
equally to all voters across the state and that Plaintiffs 
“cannot claim an injury for not having to go through a remedial 
process put in place for other voters.” (SBE Resp. (Doc. 65) at 
12.) 
Plaintiffs in Moore and Wise do not address standing for 
their Equal Protection claims in their memoranda in support of 
their motions for a preliminary injunction. (See Wise Pls.’ Mot. 
(Doc. 43); Moore Pls.’ Mot. (Doc. 60).) At oral argument held on 
October 8, 2020, however, counsel for the Moore Plaintiffs 
responded to Defendant SBE and Alliance Intervenor’s standing 
arguments. (Oral Argument Tr. (Doc. 70) at 52-59.)  
First, under a vote dilution theory, counsel argued that 
“the Defendants confuse a widespread injury with not having a 
personal injury,” (id. at 53), and that the Supreme Court’s 
decision in Reynolds demonstrates that “impermissible vote 
dilution occurs when there’s ballot box stuffing,” (id.), 
suggesting that each voter would have standing to sue under the 
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Supreme Court’s precedent in Reynolds because their vote has 
less value. (Id.) Second, under an arbitrary and disparate 
treatment theory, counsel argued that Plaintiffs were subjected 
to the witness requirement and that “[t]here are burdens 
associated with that” which support a finding of an injury in 
fact. (Id. at 56.) Counsel argued the harm that is occurring is 
not speculative because, for example, voters have and will 
continue to fail to comply with the witness requirement, (id. at 
55-56), and ballots will arrive between the third and ninth day 
following the election pursuant to the Postmark Requirement, 
(id. at 58). Moreover, counsel argued that the “regime” imposed 
by the state is arbitrary, citing limitations on assistance 
allowed to complete a ballot, compared to the lessened 
restrictions associated with the witness requirement under 
Numbered Memo 2020-19. (Id. at 59.) 
This court finds that Individual Plaintiffs in Moore and 
Wise have not articulated a cognizable injury in fact for their 
vote dilution claims. However, all of the Individual Plaintiffs 
in Moore, and one Individual Plaintiff in Wise have articulated 
an injury in fact for an arbitrary and disparate treatment 
claim.  
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a.  Vote Dilution 
Although the Supreme Court has “long recognized that a 
person’s right to vote is ‘individual and personal in nature.’” 
Gill, 138 S. Ct. at 1930 (citing Reynolds, 377 U.S. at 561), the 
Court has expressly held that “vote dilution” refers 
specifically to  ”invidiously minimizing or canceling out the 
voting potential of racial or ethnic minorities, Abbott v. 
Perez, 585 U.S. ____, ____, 138 S. Ct. 2305, 2314 (2018) 
(internal quotations and modifications omitted) (emphasis 
added), a harm which occurs where “the particular composition of 
the voter’s own district . . . causes his vote – having been 
packed or cracked – to carry less weight than it would carry in 
another, hypothetical district.” Gill, 138 S. Ct. at 1931.  
Indeed, lower courts which have addressed standing in vote 
dilution cases arising out of the possibility of unlawful or 
invalid ballots being counted, as Plaintiffs have argued here, 
have said that this harm is unduly speculative and impermissibly 
generalized because all voters in a state are affected, rather 
than a small group of voters. See, e.g., Donald J. Trump for 
President, Inc. v. Cegavske, Case No. 2:20-CV-1445 JCM (VCF), 
2020 WL 5626974, at *4 (D. Nev. Sept. 18, 2020) (“As with other 
generally available grievances about the government, plaintiffs 
seek relief on behalf of their member voters that no more 
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directly and tangibly benefits them than it does the public at 
large.”) (internal quotations and modifications omitted); Martel 
v. Condos, Case No. 5:20-cv-131, 2020 WL 5755289, at *4 (D. Vt. 
Sept. 16, 2020) (“If every voter suffers the same incremental 
dilution of the franchise caused by some third-party’s 
fraudulent vote, then these voters have experienced a 
generalized injury.”); Paher v. Cegavske, Case No. 3:20-cv-0234-
MMD-WGC, 2020 WL 2089813, at * 5 (D. Nev. Apr. 30, 2020) 
(“Plaintiffs’ purported injury of having their votes diluted due 
to ostensible election fraud may be conceivably raised by any 
Nevada voter.”); Am. Civil Rights Union v. Martinez-Rivera, 166 
F. Supp. 3d. 779, 789 (W.D. Tex. 2015) (“[T]he risk of vote 
dilution[ is] speculative and, as such, [is] more akin to a 
generalized grievance about the government than an injury in 
fact.”). 
Although “[i]t would over-simplify the standing analysis to 
conclude that no state-wide election law is subject to challenge 
simply because it affects all voters,” Martel, 2020 WL 5755289, 
at *4, the notion that a single person’s vote will be less 
valuable as a result of unlawful or invalid ballots being cast 
is not a concrete and particularized injury in fact necessary 
for Article III standing. Compared to a claim of gerrymandering, 
in which the injury is specific to a group of voters based on 
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their racial identity or the district where they live, all 
voters in North Carolina, not just Individual Plaintiffs, would 
suffer the injury Individual Plaintiffs allege. This court finds 
this injury too generalized to give rise to a claim of vote 
dilution, and thus, neither Plaintiffs in Moore nor in Wise have 
standing to bring their vote dilution claims under the Equal 
Protection Clause. 
b.  Arbitrary and Disparate Treatment 
In Bush, the Supreme Court held that, “[h]aving once 
granted the right to vote on equal terms, the State may not, by 
later arbitrary and disparate treatment, value one person’s vote 
over that of another.” 531 U.S. at 104-05. Plaintiffs argue that 
they have been subjected to arbitrary and disparate treatment 
because they voted under one set of rules, and other voters, 
through the guidance in the Numbered Memoranda, will be 
permitted to vote invalidly under a different and unequal set of 
rules, and that this is a concrete and particularized injury. 
(Oral Argument Tr. (Doc. 70) at 70-71.) 
For the purposes of determining whether Plaintiffs have 
standing, is it not “necessary to decide whether [Plaintiffs’] 
allegations of impairment of their votes” by Defendant SBE’s 
actions “will, ultimately, entitle them to any relief,” Baker, 
369 U.S. at 208; whether a harm has occurred is best left to 
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this court’s analysis of the merits of Plaintiffs’ claims, (see 
discussion infra Section II.D.3). Instead, the appropriate 
inquiry is, “[i]f such impairment does produce a legally 
cognizable injury,” whether Plaintiffs “are among those who have 
sustained it.” Baker, 369 U.S. at 208. 
This court finds that Individual Plaintiffs in Moore and 
one Individual Plaintiff in Wise have standing to raise an 
arbitrary and disparate treatment claim because their injury is 
concrete, particularized, and not speculative. Bobby Heath and 
Maxine Whitley, the Individual Plaintiffs in Moore, are 
registered North Carolina voters who voted absentee by mail and 
whose ballots have been accepted by SBE. (Moore Compl. (Doc. 1) 
¶¶ 9-10.) In Wise, Individual Plaintiff Patsy Wise is a 
registered voter who cast her absentee ballot by mail. (Wise 
Compl. (Doc. 1) ¶ 25.)  
If Plaintiffs Heath, Whitley, and Wise were voters who 
intended to vote by mail but who had not yet submitted their 
ballots, as is the case with the other Individual Plaintiffs in 
Wise, (Wise Compl. (Doc. 1) ¶¶ 26-28), or voters who had 
intended to vote in-person either during the Early Voting period 
or on Election Day, then they would not in fact have been 
impacted by the laws and procedures for submission of absentee 
ballots by mail and the complained-of injury would be merely “an 
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injury common to all other registered voters,” Martel, 2020 WL 
5755289, at *4. See also Donald J. Trump for President, Inc., 
2020 WL 5626974, at *4 (“Plaintiffs never describe how their 
member voters will be harmed by vote dilution where other voters 
will not.”). Indeed, this court finds that Individual Plaintiffs 
Clifford, Bambini, and Baum in Wise do not have standing to 
challenge the Numbered Memoranda, because any “shock[]” and 
“serious concern[s]” they have that their vote “will be negated 
by improperly cast or fraudulent ballots,” (Wise Compl. (Doc. 1) 
¶¶ 26-28), is merely speculative until such point that they have 
actually voted by mail and had their ballots accepted, which 
Plaintiffs’ Complaint in Wise does not allege has occurred. 
(Id.)  
Yet, because Plaintiffs Heath, Whitley, and Wise have, in 
fact, already voted by mail, (Moore Compl. (Doc. 1) ¶¶ 9-10; 
Wise Compl. (Doc. 1) ¶ 25), their injury is not speculative. 
Under the Numbered Memoranda 2020-19, 2020-22, and 2020-23, 
other voters who vote by mail will be subjected to a different 
standard than that to which Plaintiffs Heath, Whitley, and Wise 
were subjected when they cast their ballots by mail. Assuming 
this is an injury that violates the Equal Protection Clause, 
Baker, 369 U.S. at 208, the harm alleged by Plaintiffs is 
particular to voters in Heath, Whitley, and Wise’s position, 
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rather than a generalized injury that any North Carolina voter 
could claim. For this reason, this court finds that Individual 
Plaintiffs Heath, Whitley, and Wise have standing to raise Equal 
Protection claims under an arbitrary and disparate treatment 
theory. Because at least one plaintiff in each of these multi-
plaintiff cases has standing to seek the relief requested, the 
court “need not consider whether the other individual and 
corporate plaintiffs have standing to maintain the suit.” Vill. 
of Arlington Heights, 429 U.S. at 264 & n.9. 
3. 
Likelihood of Success on the Merits  
 
Having determined that Individual Plaintiffs have standing 
to bring their arbitrary and disparate treatment claims, this 
court now considers whether Plaintiffs’ claims are likely to 
succeed on the merits. To demonstrate a likelihood of success on 
the merits, “[a] plaintiff need not establish a certainty of 
success, but must make a clear showing that he is likely to 
succeed at trial.” Di Biase, 872 F.3d at 230. 
 
 
 
a. 
Parties’ Arguments 
Plaintiffs argue that four policies indicated in the 
Numbered Memoranda are invalid under the Equal Protection 
Clause: (1) the procedure which allows ballots without a witness 
signature to be retroactively validated through the cure 
procedure indicated in Revised Numbered Memo 2020-19 (“Witness 
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Requirement Cure Procedure”); (2) the procedure which allows 
absentee ballots to be received up to nine days after Election 
Day if they are postmarked on Election Day, as indicated in 
Numbered Memo 2020-19 (“Receipt Deadline Extension”); and (3) 
the procedure which allows for anonymous delivery of ballots to 
unmanned drop boxes, as indicated in Numbered Memo 2020-23 
(“Drop Box Cure Procedure”); (4) the procedure which allows 
ballots to be counted without a United States Postal Service 
postmark, as indicated in Numbered Memo 2020-22 (“Postmark 
Requirement Changes”). (Moore Compl. (Doc. 1) ¶ 93; Wise Compl. 
(Doc. 1) ¶ 124; Wise Pls.’ Mot. (Doc. 43) at 13-14.) 
Plaintiffs in Wise argue that the changes in these 
Memoranda “guarantee that voters will be treated arbitrarily 
under the ever-changing voting regimes.” (Wise Pls.’ Mot. (Doc. 
43) at 11.) Similarly, Plaintiffs in Moore argue that the three 
Memoranda were issued “after tens of thousands of North 
Carolinians cast their votes following the requirements set by 
the General Assembly,” which deprives Plaintiffs “of the Equal 
Protection Clause’s guarantee because it allows for ‘varying 
standards to determine what [i]s a legal vote.” (Moore Compl. 
(Doc. 1) ¶ 90 (citing Bush, 531 U.S. at 107).)  
In response, Defendants argue that the Numbered Memoranda 
will not lead to the arbitrary and disparate treatment of 
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ballots prohibited by the Supreme Court’s decision in Bush v. 
Gore, 531 U.S. 98 (2000). Defendant SBE argues that the consent 
judgment and Numbered Memos do “precisely what Bush 
contemplated: It establishes uniform and adequate standards for 
determining what is a legal vote, all of which apply statewide, 
well in advance of Election Day. Indeed, the only thing stopping 
uniform statewide standards from going into effect is the TRO 
entered in these cases.” (SBE Resp. (Doc. 65) at 17.) Moreover, 
Defendant SBE argues that the consent judgment “simply 
establishes uniform standards that help county boards ascertain 
which votes are lawful,” and “in no way lets votes be cast 
unlawfully.” (Id. at 18.) 
 
Alliance Intervenors argue that the Numbered Memos “apply 
equally to all voters,” (Alliance Resp. (Doc. 64) at 18), and 
“Plaintiffs have not articulated, let alone demonstrated, how 
their right to vote – or anyone else’s – is burdened or valued 
unequally,” (id. at 19). Moreover, Alliance Intervenors argue 
that the release of the Numbered Memoranda after the election 
began does not raise equal protection issues because, 
“[e]lection procedures often change after voting has started to 
ensure that the fundamental right to vote is protected.” (Id. at 
20.)  
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Both Defendant SBE and Alliance Intervenors argue that the 
release of the Numbered Memoranda after the election began does 
not raise equal protection issues, as election procedures often 
change after voting has started. (SBE Resp. (Doc. 65) at 18; 
Alliance Resp. (Doc. 64) at 20.) For example, Defendant SBE 
argues that “[i]f it is unconstitutional to extend the receipt 
deadline for absentee ballots to address mail disruptions, then 
it would also be unconstitutional to extend hours at polling 
places on Election Day to address power outages or voting-
machine malfunctions.” (SBE Resp. (Doc. 65) at 18 (citing N.C. 
Gen. Stat. § 163-166.01).) “Likewise, the steps that the Board 
has repeatedly taken to ensure that people can vote in the wake 
of natural disasters like hurricanes would be invalid if those 
steps are implemented after voting begins.” (Id.)  
 
 
b. 
Analysis 
This court agrees with the parties that an Equal Protection 
violation occurs where there is both arbitrary and disparate 
treatment. Bush, 531 U.S. at 105. This court also agrees with 
Defendants that not all disparate treatment rises to the level 
of an Equal Protection violation. As Defendant SBE argues, the 
General Assembly has empowered SBE to make changes to voting 
policies and procedures throughout the election, including 
extending hours at polling places or adjusting voting in 
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response to natural disasters. (SBE Resp. (Doc. 65) at 18.) 
Other federal courts have upheld changes to election procedures 
even after voting has commenced. For example, in 2018, a federal 
court enjoined Florida’s signature matching procedures and 
ordered a cure process after the election. Democratic Exec. 
Comm. of Fla. V. Detzner, 347 F. Supp. 3d 1017, 1031 (N.D. Fla. 
2018), appeal dismissed as moot sub nom. Democratic Exec. Comm. 
of Fla. v. Nat’l Republican Senatorial Comm., 950 F.3d 790 (11th 
Cir. 2020). Similarly, a Georgia federal court in 2018 ordered a 
cure process in the middle of the absentee and early voting 
periods. Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018), 
appeal dismiss sub nom. Martin v. Sec’y of State of Ga., No. 
18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018). 
A change in election rules that results in disparate 
treatment shifts from constitutional to unconstitutional when 
these rules are also arbitrary. The ordinary definition of the 
word “arbitrary” refers to matters “[d]epending on individual 
discretion” or “involving a determination made without 
consideration of or regard for facts, circumstances, fixed 
rules, or procedures.” Arbitrary, Black’s Law Dictionary (11th 
ed. 2019). This definition aligns with the Supreme Court’s 
holding in Reynolds and Bush, that the State must ensure equal 
treatment of voters both at the time it grants citizens the 
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right to vote and throughout the election. Bush, 531 U.S. 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 over that of another.”); Reynolds, 377 
U.S. at 555 (“[T]he 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.”). 
The requirement that a state “grant[] the right to vote on 
equal terms,” Bush, 531 U.S. at 104, includes protecting the 
public “from the diluting effect of illegal ballots,” Gray, 372 
U.S. at 380. To fulfill this requirement, a state legislature 
must define the manner in which voting should occur and the 
minimum requirements for a valid, qualifying ballot. In North 
Carolina, the General Assembly has passed laws defining the 
requirements for permissible absentee voting, N.C. Gen. Stat. 
§ 163-226 et seq., including as recently as this summer, when it 
modified the one-witness requirement, 2020 N.C. Sess. Laws 2020-
17 (H.B. 1169) § 1.(a). As this court found in its order issuing 
a preliminary injunction in Democracy, these requirements 
reflect a desire by the General Assembly to prevent voter fraud 
resulting from illegal voting practices. Democracy N. Carolina, 
2020 WL 4484063, at *35. 
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A state cannot uphold its obligation to ensure equal 
treatment of all voters at every stage of the election if 
another body, including SBE, is permitted to contravene the duly 
enacted laws of the General Assembly and to permit ballots to be 
counted that do not satisfy the fixed rules or procedures the 
state legislature has deemed necessary to prevent illegal 
voting. Any guidance SBE adopts must be consistent with the 
guarantees of equal treatment contemplated by the General 
Assembly and Equal Protection. 
Thus, following this precedent, and the ordinary definition 
of the word “arbitrary,” this court finds that SBE engages in 
arbitrary behavior when it acts in ways that contravene the 
fixed rules or procedures the state legislature has established 
for voting and that fundamentally alter the definition of a 
validly voted ballot, creating “preferred class[es] of voters.” 
Gray, 372 U.S. at 380. 
This definition of arbitrariness does not require this 
court to consider whether the laws enacted by the General 
Assembly violate other provisions in the North Carolina or U.S. 
Constitution or whether there are better public policy 
alternatives to the laws the General Assembly has enacted. These 
are separate inquiries. This court’s review is limited to 
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whether the challenged Numbered Memos are consistent with state 
law and do not create a preferred class or classes of voters. 
 
 
 
i. 
Witness Requirement Cure Procedure 
This court finds Plaintiffs have demonstrated a likelihood 
of success on the merits with respect to their Equal Protection 
challenge to the Witness Requirement Cure Procedure in Revised 
Memo 2020-19. 
 
Under the 2020 N.C. Sess. Laws 2020-17 (H.B. 1169) § 1.(a), 
a witnessed absentee ballot must be “marked . . . in the 
presence of at least one [qualified] person . . . .” 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.  
Revised Memo 2020-19 counsels that ballots missing a 
witness signature may be cured where voters sign and affirm the 
following statement:  
I am submitting this affidavit to correct a problem 
with missing information on the ballot envelope. I am 
an eligible voter in this election and registered to 
vote in [name] County, North Carolina. I solemnly 
swear or affirm that I voted and returned my 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. 
 
(Moore v. Circosta, No. 1:20CV911 (Doc. 45-1) at 34.) 
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This “cure” affidavit language makes no mention of whether 
a witness was in the presence of the voter at the time that the 
voter cast their ballot, which is the essence of the 
Legislature’s Witness Requirement. 2020 N.C. Sess. Laws 2020-17 
(H.B. 1169) § 1.(a). In fact, a voter could truthfully sign and 
affirm this statement and have their ballot counted by their 
county board of elections without any witness becoming involved 
in the process.6 Because the effect of this affidavit is to 
                     
6 Plaintiffs do not challenge the use of the cure affidavit 
for ballot deficiencies generally, aside from arguing that the 
cure affidavit circumvents the statutory Witness Requirement. 
(See Moore Compl. (Doc. 1) ¶ 93; Wise Compl. (Doc. 1) ¶ 124.) 
Although not raised by Plaintiffs, this courts finds the 
indefiniteness of the cure affidavit language troubling as a 
means of correcting even curable ballot deficiencies.  
During oral arguments, Defendants did not and could not 
clearly define what it means to “vote,” (see, e.g., Oral 
Argument Tr. (Doc. 70) at 130-32), which is all that the 
affidavit requires voters to attest that they have done. (Moore 
v. Circosta, No. 1:20CV911, State Court Consent Judgment (Doc. 
45-1) at 34.) Under the vague “I voted” language used in the 
affidavit, a voter who completed their 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. § 163-
226.3(a)(1). Because the cure affidavit does not define what it 
means to vote, voters are permitted to decide what that means 
for themselves. 
This presents additional Equal Protection concerns. A state 
must ensure that there is “no preferred class of voters but 
equality among those who meet the basic qualifications.” Gray, 
372 U.S. at 380. 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  
 
 
 
 
 
 
 
 
(Footnote continued) 
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eliminate the statutorily required witness requirement, this 
court finds that Plaintiffs have demonstrated a likelihood of 
success on the merits in proving that the Witness Requirement 
Cure Procedure indicated in Revised Memo 2020-19 is arbitrary. 
Based on counsel’s statements at oral arguments, Defendant 
SBE may contend that the guidance in Revised Memo 2020-19 is not 
arbitrary because it was necessary to resolve the Alliance state 
court action. (Oral Argument Tr. (Doc. 70) at 105 (“Our reading 
then of state law is that the Board has the authority to make 
adjustments in emergencies or as a means of settling protracted 
litigation until the General Assembly reconvenes.”).) However, 
Defendant SBE’s arguments to the state court judge and the court 
in the Eastern District of North Carolina belie that assertion, 
as they advised the state court that both the original Memo 
2020-19 and the Revised Memo were issued “to ensure full 
compliance with the injunction entered by Judge Osteen,” (SBE 
State Court Br. (Doc. 68-1) at 15), and they advised the court 
in the Eastern District of North Carolina that they had issued 
                     
voters will be held to the same standards for casting their 
ballot. This is, by definition, arbitrary and disparate 
treatment inconsistent with existing state law.  
This court’s concerns notwithstanding, however, Plaintiffs 
do not challenge the use of a cure affidavit in other contexts, 
so this court will decline to enjoin the use of a cure affidavit 
beyond its application as an alternative for compliance with the 
Witness Requirement.  
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the revised Memo 2020-19 “in order to comply with Judge Osteen’s 
preliminary injunction in the Democracy N.C. action in the 
Middle District.” (TRO (Doc. 47) at 9.) As this court more fully 
explains in its order issued in Democracy, this court finds that 
Defendant SBE improperly used this court’s August Democracy 
Order to modify the witness requirement. Democracy N. Carolina, 
No. 1:20CV457 (M.D.N.C. Oct. 14, 2020) (enjoining witness cure 
procedure). Because Defendant SBE acted improperly in that 
fashion, this court declines to accept an argument now that 
elimination of the witness requirement was a rational and 
justifiable basis upon which to settle the state lawsuit. 
Furthermore, it is difficult to conceive that SBE was authorized 
to resolve a pending lawsuit that could create a preferred class 
of voters: those who may submit an absentee ballot without a 
witness under an affidavit with no definition of the meaning of 
“vote.” 
This court also finds Plaintiffs have demonstrated a 
likelihood of success on the merits in proving disparate 
treatment may result as a result of the elimination of the 
Witness Requirement. Individual Plaintiffs Wise, Heath, and 
Whitley assert that they voted absentee by mail, including 
complying with the Witness Requirement. (Wise Compl. (Doc. 1) 
¶ 25; Moore Compl. (Doc. 1) ¶¶ 9-10.) Whether because a voter 
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inadvertently cast a ballot without a witness or because a voter 
was aware of the “cure” procedure and thus, willfully did not 
cast a ballot with a witness, there will be voters whose ballots 
are cast without a witness. Accordingly, this court finds that 
Plaintiffs have demonstrated a likelihood of success on the 
merits in proving that the Witness Requirement Cure Procedure 
indicated in Memo 2020-19 creates disparate treatment.  
Thus, because Plaintiffs have demonstrated a likelihood of 
success on the merits with respect to arbitrary and disparate 
treatment that may result from under Witness Requirement Cure 
Procedure in Revised Memo 2020-19, this court finds Plaintiffs 
have established a likelihood of success on their Equal 
Protection claim. 
 
 
 
ii. Receipt Deadline Extension 
This court finds that Plaintiffs are likely to succeed on 
their Equal Protection challenge to the Receipt Deadline 
Extension in Revised Memo 2020-19. 
Under N.C. Gen. Stat. § 163-231(b), in order to be counted, 
civilian absentee ballots must have been received by the county 
board office by 5 p.m. on Election Day, November 3, 2020, or if 
postmarked by Election Day, by 5:00 p.m. on November 6, 2020. 
The guidance in Revised Memo 2020-19 extends the time in which 
absentee ballots must be returned, allowing a late civilian 
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ballot to be counted if postmarked on or before Election Day and 
received by 5:00 p.m. on November 12, 2020 (Revised Memo 2020-19 
(Doc. 36-3) at 5.)  
Alliance Intervenors argue that, “[t]o the extent Numbered 
Memo 2020-22 introduces a new deadline, it affects only the 
counting of ballots for election officials after Election Day 
has passed – not when voters themselves must submit their 
ballots. All North Carolina absentee voters still must mail 
their ballots by Election Day.” (Alliance Resp. (Doc. 64) at 
21.) 
This court disagrees, finding Plaintiffs have demonstrated 
a likelihood of success on the merits in proving that this 
change contravenes the express deadline established by the 
General Assembly, by extending the deadline from three days 
after Election Day, to nine days after Election Day. Moreover, 
it results in disparate treatment, as voters like Individual 
Plaintiffs returned their ballots within the time-frame 
permitted under state law, (Wise Compl. (Doc. 1) ¶ 25; Moore 
Compl. (Doc. 1) ¶¶ 9-10), but other voters whose ballots would 
otherwise not be counted if received three days after Election 
Day, will now have an additional six days to return their 
ballot.  
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Because Plaintiffs have demonstrated a likelihood of 
success on the merits in proving arbitrary and disparate 
treatment may result under the Receipt Deadline Extension, this 
court finds Plaintiffs have established a likelihood of success 
on the merits of their Equal Protection claim.  
 
 
 
iii. Drop Box Cure Procedure 
Plaintiffs have failed to establish a likelihood of 
success, however, on their Equal Protection challenge to the 
Drop Box Cure Procedure indicated in Numbered Memo 2020-23. 
(Wise, No. 1:20CV912, Memo 2020-23 (Doc. 1-4).)  
N.C. Gen. Stat. § 163-226.3(a)(5) makes it a felony for any 
person other than the voter’s near relative or legal guardian to 
take possession of an absentee ballot of another voter for 
delivery or for return to a county board of elections.  
“Because of this provision in the law,” and the need to 
ensure compliance with it, SBE recognized in Memo 2020-23 that, 
“an absentee ballot may not be left in an unmanned drop box,” 
(Wise, No. 1:20CV912, Memo 2020-23 (Doc. 1-4) at 2), and 
directed county boards which have a “drop box, slot, or similar 
container at their office” for other business purposes to place 
a “sign indicating that absentee ballots may not be deposited in 
it.” (Id.)  
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Moreover, the guidance reminds county boards that they must 
keep a written log when any person returns an absentee ballot in 
person, which includes the name of the individual returning the 
ballot, their relationship to the voter, the ballot number, and 
the date it was received. (Id. at 3.) If the individual who 
drops off the ballot is not the voter, their near relative, or 
legal guardian, the log must also record their address and phone 
number. (Id.) The guidance also advises county boards that 
“[f]ailure to comply with the logging requirement, or delivery 
or an absentee ballot by a person other than the voter, the 
voter’s near relative, or the voter’s legal guardian, is not 
sufficient evidence in and of itself to establish that the voter 
did not lawfully vote their ballot.” (Id. at 3.) Instead, the 
guidance advises the county board that they “may . . . consider 
the delivery of a ballot . . . in conjunction with other 
evidence in determining whether the ballot is valid and should 
be counted.” (Id. at 4.)   
Plaintiffs argue that this guidance “undermines the General 
Assembly’s criminal prohibition of the unlawful delivery of 
ballots,” (Moore Compl. (Doc. 1) ¶ 68), and “effectively 
allow[s] voters to use drop boxes for absentee ballots,” (Wise 
Pls.’ Mot. (Doc. 43) at 13), and thus, violates the Equal 
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Protection Clause, (Moore Compl. (Doc. 1) ¶ 93). This court 
disagrees.  
Although Numbered Memo 2020-23 was released on 
September 22, 2020, (Wise, No. 1:20CV912, Memo 2020-23 (Doc. 
1-4) at 2), the guidance it contains is not new. Consistent with 
the guidance in Numbered Memo 2020-23, SBE administrative rules 
adopted on December 1, 2018, require that any person delivering 
a ballot to a county board of elections office provide: 
(1) Name of voter;  
 
(2) Name of person delivering ballot; 
 
(3) Relationship to voter; 
 
(4) Phone Number (if available) and current address of 
person delivering ballot; 
 
(5) Date and time of delivery of ballot; and 
 
(6) Signature or mark of person delivering ballot 
certifying that the information provided is true and 
correct and that the person is the voter or the 
voter’s near relative as defined in [N.C. Gen. Stat 
§ 163-226(f)] or verifiable legal guardian as defined 
in [N.C. Gen. Stat. § 163-226(e)]. 
 
8 N.C. Admin. Code 18.0102 (2018). Moreover, the administrative 
rule states that “the county board of elections may consider the 
delivery of a ballot in accordance with this Rule in conjunction 
with other evidence in determining whether the container-return 
envelope has been properly executed according to the 
requirements of [N.C. Gen. Stat. § 163-231],” (id.), and that 
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“[f]ailure to comply with this Rule shall not constitute 
evidence sufficient in and of itself to establish that the voter 
did not lawfully vote his or her ballot.” (Id.)  
Because the guidance contained in Numbered Memo 2020-23 was 
already in effect at the start of this election as a result of 
SBE’s administrative rules, Individual Plaintiffs were already 
subject to it at the time that they cast their votes. 
Accordingly, because all voters were subject to the same 
guidance, Plaintiffs have not demonstrated a likelihood of 
success on the merits in proving disparate treatment. 
It is a closer issue with respect to whether Plaintiffs 
have demonstrated a likelihood of success on the merits in 
proving that the rules promulgated by Defendant SBE are 
inconsistent with N.C. Gen. Stat. § 163-226.3(a)(5). 
This statute makes it a felony for any person other than 
the voter’s near relative or legal guardian to take possession 
of an absentee ballot of another voter for delivery or for 
return to a county board of elections. Id. It would seem 
logically inconsistent that the General Assembly would 
criminalize this behavior, while at the same time, permit 
ballots returned by unauthorized third parties to be considered 
valid. Yet, upon review of the legislative history, this court 
finds the felony statute has been in force since 1979, 1979 N.C. 
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Sess. Laws Ch. 799 (S.B. 519) § 4, https://www.ncleg.gov/ 
enactedlegislation/sessionlaws/pdf/1979-1980/sl1979-799.pdf 
(last visited Oct. 13, 2020), and in its current form since 
2013. 2013 N.C. Sess. Laws 381 (H.B. 589) § 4.6.(a).  
That the General Assembly, by not taking legislative 
action, and instead, permitted SBE’s administrative rule and the 
General Assembly’s statute to coexist for nearly two years and 
through several other elections undermines Plaintiffs’ argument 
that Defendant SBE has acted arbitrarily. For this reason, this 
court finds that Plaintiffs have not demonstrated a likelihood 
of success on the merits in proving the arbitrariness of the 
guidance in Numbered Memo 2020-23 and accordingly, Plaintiffs 
have failed to establish a likelihood of success on their Equal 
Protection challenge to Numbered Memo 2020-23. 
If the General Assembly believes that SBE’s administrative 
rules are inconsistent with its public policy goals, they are 
empowered to pass legislation which overturns the practice 
permitted under the administrative rule. 
 
 
 
iv. Postmark Requirement Changes 
Similarly, this court finds that Plaintiffs have failed to 
establish likelihood of success on the merits with respect to 
their Equal Protection challenge to the Postmark Requirement 
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Changes in Numbered Memo 2020-22. (Wise, 1:20CV912, Memo 2020-22 
(Doc. 1-3).) 
Under Numbered Memo 2020-22, a ballot will be considered 
postmarked by Election Day if it has a USPS postmark, there is 
information in BallotTrax, or “another tracking service offered 
by the USPS or a commercial carrier, indicat[es] that the ballot 
was in the custody of USPS or the commercial carrier on or 
before Election Day.” (Id. at 3.) This court finds that these 
changes are consistent with N.C. Gen. Stat. § 163-231(b)(2)b, 
which does not define what constitutes a “postmark,” and 
instead, merely states that ballots received after 5:00 p.m. on 
Election Day may not be accepted unless the ballot is 
“postmarked and that postmark is dated on or before the day of 
the . . . general election . . . and are received by the county 
board of elections not later than three days after the election 
by 5:00 p.m.”  
In the absence of a statutory definition for postmark, this 
court finds Plaintiffs have not demonstrated a likelihood of 
success on the merits in proving that Numbered Memo 2020-22 is 
inconsistent with N.C. Gen. Stat. § 163-231(b)(2)b, and thus, 
arbitrary. If the General Assembly believes that the Postmark 
Requirement Changes indicated in Memo 2020-22 are inconsistent 
with its public policy goals, they are empowered to pass 
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legislation which further specifies the definition of a 
“postmark.” In the absence of such legislation, however, this 
court finds that Plaintiffs have failed to establish a 
likelihood of success on the merits of their Equal Protection 
challenge. 
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4. 
Irreparable Harm 
In addition to a likelihood of success on the merits, a 
plaintiff must also make a “clear showing that it is likely to 
be irreparably harmed absent preliminary relief” in order to 
obtain a preliminary injunction. UBS Fin. Servs. Inc. v. 
Carilion Clinic, 880 F. Supp. 2d 724, 733 (E.D. Va. 2012) 
(quoting Real Truth About Obama, Inc. v. Fed. Election Comm’n, 
575 F.3d 342, 347 (4th Cir. 2009)). Further, an injury is 
typically deemed irreparable if monetary damages are inadequate 
or difficult to ascertain. See Multi-Channel TV Cable Co. v. 
Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 
(4th Cir. 1994), abrogated on other grounds by Winter, 555 U.S. 
at 22. “Courts routinely deem restrictions on fundamental voting 
rights irreparable injury.” League of Women Voters of N.C. v. 
North Carolina, 769 F.3d 224, 247 (4th Cir. 2014). “[O]nce the 
election occurs, there can be no do-over and no redress. The 
injury to these voters is real and completely irreparable if 
nothing is done to enjoin th[ese] law[s].” Id. 
The court therefore finds Plaintiffs have demonstrated a 
likelihood of irreparable injury regarding the Equal Protection 
challenges to the Witness Requirement and the Receipt Deadline 
Extension. 
5. 
Balance of Equities 
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The third factor in determining whether preliminary relief 
is appropriate is whether the plaintiff demonstrates “that the 
balance of equities tips in his favors.” Winter, 555 U.S. at 20.  
The Supreme Court’s decision in Purcell v. Gonzalez, 549 
U.S. 1 (2006), urges that this court should issue injunctive 
relief as narrowly as possible. 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), as 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 election are strongly disfavored.”). 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, 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, 
2020 WL 2748301, at *1, *6; and the use of college IDs for 
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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. 
Purcell is not a per se rejection of any injunctive relief 
close to an election. However, as the Supreme Court’s 
restoration of the South Carolina witness requirement last week 
illustrates, a heavy thumb on the scale weighs against changes 
to voting regulations. Andino v. Middleton, ____ S. Ct. ____, 
2020 WL 5887393, at *1 (Oct. 5, 2020) (Kavanaugh, J., 
concurring) (“By enjoining South Carolina’s witness requirement 
shortly before the election, the District Court defied [the 
Purcell] principle and this Court’s precedents.”).  
In this case, there are two SBE revisions where this court 
has found that Plaintiffs are likely to succeed on the merits. 
First, the Witness Requirement Cure Procedure, which determines 
whether SBE will send the voter a cure certification or spoil 
the ballot and issue a new one. This court has, on separate 
grounds, already enjoined the Witness Requirement Cure Procedure 
in Democracy North Carolina v. North Carolina State Board of 
Elections, No. 1:20CV457 (M.D.N.C. Oct. 24, 2020) (enjoining 
witness cure procedure). Thus, the issue of injunctive relief on 
the Witness Requirement Cure Procedure is moot at this time. 
Nevertheless, in the absence of relief in Democracy, it seems 
likely that SBE’s creation of “preferred class[es] of voters”, 
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Gray, 372 U.S. at 380, with elimination of the witness 
requirement and the cure procedure could merit relief in this 
case.  
Ripe for this court’s consideration is the Receipt Deadline 
Extension, which contradicts state statutes regarding when a 
ballot may be counted. Ultimately, this court will decline to 
enjoin the Receipt Deadline Extension, in spite of its likely 
unconstitutionality and the potential for irreparable injury. 
The Purcell doctrine dictates that this court must “ordinarily” 
refrain from interfering with election rules. Republican Nat’l 
Comm., 140 S. Ct. at 1207. These issues may be taken up by 
federal courts after the election, or at any time in state 
courts and the legislature. However, in the middle of an 
election, less than a month before Election Day itself, this 
court cannot cause “judicially created confusion” by changing 
election rules. Id. Accordingly, this court declines to impose a 
preliminary injunction because the balance of equities weighs 
heavily against such an injunction. 
E. 
Plaintiffs’ Electors Clause and Elections Clause 
Claims 
 
As an initial matter, this court will address the 
substantive issues of the Electors Clause and the Elections 
Clause together. The Electors Clause of the U.S. Constitution 
requires “[e]ach State shall appoint, in such Manner as the 
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Legislature thereof may direct, a Number of Electors” for 
President. U.S. Const. art. II, § 1, cl. 2. Plaintiffs in Wise 
argue that, in order to “effectuate” this Electors requirement, 
“the State must complete its canvas of all votes cast by three 
weeks after the general election” under N.C. Gen. Stat. § 163-
182.5(c). (Wise Pls.’ Mot. (Doc. 43) at 15.) Plaintiffs argue 
that (1) the extension of the ballot receipt deadline and (2) 
the changing of the postmark requirement “threaten to extend the 
process and threaten disenfranchisement,” as North Carolina 
“must certify its electors by December 14 or else lose its voice 
in the Electoral College. (Id.)  
The meaning of “Legislature” within the Electors Clause can 
be analyzed in the same way as “Legislature” within the 
Elections Clause. For example,  
As an initial matter, the Court finds no need to 
distinguish between the term ‘Legislature’ as it is 
used in the Elections Clause as opposed to 
the Electors Clause. Not only were both these clauses 
adopted during the 1787 Constitutional Convention, but 
the clauses share a “considerable similarity. 
 
 
. . . . 
 
 
. . . [T]he Court finds that the term 
“Legislature” is used in a sufficiently similar 
context in both clauses to properly afford the term an 
identical meaning in both instances. 
 
Donald J. Trump for President, Inc. v. Bullock, No. CV 20-66-H-
DLC, 2020 WL 5810556, at *11 (D. Mont. Sept. 30, 2020). Nor do 
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Plaintiffs assert any difference in the meaning they assign to 
“Legislature” and its authority between the two Clauses. 
This court finds that all Plaintiffs lack standing under 
either Clause. The discussion infra of the Elections Clause 
applies equally to the Electors Clause.  
1.  Elections Clause  
a. 
Standing 
The Elections Clause standing analysis differs in Moore and 
Wise, though this court ultimately arrives at the same 
conclusion in both cases.  
i. 
Standing in Wise 
In Wise, Plaintiffs are private parties clearly established 
by Supreme Court precedent to have no standing to contest the 
Elections Clause in this manner. Plaintiffs are individual 
voters, a campaign committee, national political parties, and 
two Members of the U.S. House of Representatives. Even though 
Plaintiffs are part of the General Assembly, they bring their 
Elections Clause claim alleging an institutional harm to the 
General Assembly. Though the Plaintiffs claim to have suffered 
“immediate and irreparable harm”, (Wise Compl. (Doc. 1) ¶¶ 100, 
109), this does not establish standing for their Elections 
Clause claim or Electors Clause claim. See Corman v. Torres, 287 
F. Supp. 3d 558, 573 (M.D. Pa. 2018) (“[T]he Elections Clause 
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claims asserted in the verified complaint belong, if they belong 
to anyone, only to the . . . General Assembly.”). The Supreme 
Court has already held that a private citizen does not have 
standing to bring an Elections Clause challenge without further, 
more particularized harms. See Lance, 549 U.S. at 441-42 (“The 
only injury [private citizen] plaintiffs allege is that . . . 
the Elections Clause . . . has not been followed. This injury is 
precisely the kind of undifferentiated, generalized grievance 
about the conduct of government that we have refused to 
countenance in the past.”). Plaintiffs allege no such extra 
harms, and in fact, do not speak to standing in their brief at 
all. 
ii. Standing in Moore 
In Moore, both Plaintiff Moore and Plaintiff Berger are 
leaders of chambers in the General Assembly. The Plaintiffs 
allege harm stemming from SBE flouting the General Assembly’s 
institutional authority. (Wise Pls.’ Mot. (Doc. 43) at 16.) 
However, as Proposed Intervenors NC Alliance argue, “a subset of 
legislators has no standing to bring a case based on purported 
harm to the Legislature as a whole.” (Alliance Resp. (Doc. 64) 
at 15.) The Supreme Court has held that legislative plaintiffs 
can bring Elections Clause claims on behalf of the legislature 
itself only if they allege some extra, particularized harm to 
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themselves – or some direct authority from the whole legislative 
body to bring the legal claim. Specifically, the Supreme Court 
found a lack of standing where “[legislative plaintiffs] have 
alleged no injury to themselves as individuals”; where “the 
institutional injury they allege is wholly abstract and widely 
disperse”; and where the plaintiffs  “have not been authorized 
to represent their respective Houses of Congress in this 
action.” Raines v. Byrd, 521 U.S. 811, 829 (1997).  
An opinion in a very similar case in the Middle District of 
Pennsylvania is instructive: 
[T]he claims in the complaint rest solely on the 
purported usurpation of the Pennsylvania General 
Assembly’s exclusive rights under the Elections Clause 
of the United States Constitution. We do not gainsay 
that these [two] Senate leaders are in some sense 
aggrieved by the Pennsylvania Supreme Court’s actions. 
But that grievance alone does not carry them over the 
standing bar. United States Supreme Court precedent is 
clear — a legislator suffers no Article III injury 
when alleged harm is borne equally by all members of 
the legislature. 
 
Corman, 287 F. Supp. 3d at 567. In the instant case, the two 
members of the legislature do not allege individual injury. The 
institutional injury they allege is dispersed across the entire 
General Assembly. The crucial element, then, is whether Moore 
and Berger are authorized by the General Assembly to represent 
its interests. The General Assembly has not directly authorized 
Plaintiffs to represent its interests in this specific case. See 
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Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 
576 U.S. 787, 802 (2015) (finding plaintiff “[t]he Arizona 
Legislature” had standing in an Elections Clause case only 
because it was “an institutional plaintiff asserting an 
institutional injury” which “commenced this action after 
authorizing votes in both of its chambers”). Moore and Berger 
argued the general authorization in N.C. Gen. Stat. Section 120-
32.6(b), which explicitly authorizes them to represent the 
General Assembly “[w]henever the validity or constitutionality 
of an act of the General Assembly or a provision of the 
Constitution of North Carolina is the subject of an action in 
any State or federal court.” N.C. Gen. Stat. § 120-32.6(b). The 
text of § 120-32.6 references N.C. Gen. Stat. § 1-72.2, which 
further specifies that Plaintiffs will “jointly have standing to 
intervene on behalf of the General Assembly as a party in any 
judicial proceeding challenging a North Carolina statute or 
provision of the North Carolina Constitution.” (emphasis added). 
Neither statute, however, authorizes them to represent the 
General Assembly as a whole when acting as plaintiffs in a case 
such as this one. See N.C. State Conference of NAACP v. Berger, 
970 F.3d 489, 501 (4th Cir. 2020) (granting standing to Moore 
and Berger in case where North Carolina law was directly 
challenged, distinguishing “execution of the law” from “defense 
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of a challenged act”). The facts of this case do not match up 
with this court’s prior application of N.C. Gen. Stat. § 1-72.2, 
which has been invoked where legislators defend the 
constitutionality of legislation passed by the legislature when 
the executive declines to do so. See Fisher-Borne v. Smith, 14 
F. Supp. 3d 699, 703 (M.D.N.C. 2014). Furthermore, to the extent 
Plaintiffs Moore and Berger disagree with the challenged 
provisions of the Consent Judgment, they have not alleged they 
lack the authority to bring the legislature back into session to 
negate SBE’s exercise of settlement authority. See N.C. Gen. 
Stat. § 163-22.2. 
Thus, even Plaintiff Moore and Plaintiff Berger lack 
standing to proceed with the Elections Clause claim. 
Nonetheless, this court will briefly address the merits as well. 
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2. 
Merits of Elections Clause Claim 
a. 
The ‘Legislature’ May Delegate to SBE 
The Elections Clause of the U.S. Constitution states that 
the “Times, Places, and Manner of holding Elections for Senators 
and Representatives, shall be prescribed in each State by the 
Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. Plaintiffs 
assert that the General Assembly instituted one such time/place/ 
manner rule regarding the election by passing H.B. 1169. 
Therefore, Plaintiffs argue, SBE “usurped the General Assembly’s 
authority” when it “plainly modif[ied]” what the General 
Assembly had implemented. (Wise Pls.’ Mot. (Doc. 43) at 14.)  
The Elections Clause certainly prevents entities other than 
the legislature from unilaterally tinkering with election 
logistics and procedures. However, Plaintiffs fail to establish 
that the Elections Clause forbids the legislature itself from 
voluntarily delegating this authority. The “Legislature” of a 
state may constitutionally delegate the power to implement 
election rules – even rules that may contradict previously 
enacted statutes.   
State legislatures historically have the power and ability 
to delegate their legislative authority over elections and 
remain in compliance with the Elections Clause. Ariz. State 
Legislature, 576 U.S. at 816 (noting that, despite the Elections 
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Clause, “States retain autonomy to establish their own 
governmental processes”). Here, the North Carolina General 
Assembly has delegated some authority to SBE to contravene 
previously enacted statutes, particularly in the event of 
certain “unexpected circumstances.” (SBE Resp. (Doc. 65) at 15.)  
The General Assembly anticipated that SBE may need to 
implement rules that would contradict previously enacted 
statutes. See N.C. Gen. Stat. § 163-27.1(a) (“In exercising 
those emergency powers, the Executive Director shall avoid 
unnecessary conflict with the provisions of this Chapter.” 
(emphasis added)). Plaintiffs claim that “[t]he General Assembly 
could not, consistent with the Constitution of the United 
States, delegate to the Board of Elections the power to suspend 
or re-write the state’s election laws.” (Wise Compl. (Doc. 1) 
¶ 97.) This would mean that the General Assembly could not 
delegate any emergency powers to SBE. For example, if a 
hurricane wiped out all the polling places in North Carolina, 
Plaintiffs’ reading of the Constitution would prohibit the 
legislature from delegating to SBE any power to contradict 
earlier state law regarding election procedures. (See SBE Resp. 
(Doc. 65) at 15). 
As courts have adopted a broad understanding of 
“Legislature” as written in the Elections Clause, see Corman, 
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287 F. Supp. 3d at 573, it follows that a valid delegation from 
the General Assembly allowing SBE to override the General 
Assembly in certain circumstances would not be unconstitutional. 
See Donald J. Trump for President, 2020 WL 5810556, at *12 
(finding that the legislature’s “decision to afford” the 
Governor certain statutory powers to alter the time/place/manner 
of elections was legitimate under the Elections Clause).  
b. 
Whether SBE Exceeded Legitimate Delegated 
Powers  
 
The true question becomes, then, whether SBE was truly 
acting within the power legitimately delegated to it by the 
General Assembly. Even Proposed Intervenors NC Alliance note 
that SBE’s actions “could . . . constitute plausible violations 
of the Elections Clause if they exceeded the authority granted 
to [SBE] by the General Assembly.” (Alliance Resp. (Doc. 64) at 
19.) 
SBE used two sources of authority to enter into the Consent 
Agreement changing the laws and rules of the election process 
after it had begun: N.C. Gen. Stat. § 163-22.2 and § 163-27.1.  
i. 
SBE’s Authority to Avoid Protracted 
Litigation   
 
First, this court finds that, while N.C. Gen. Stat. § 163-
22.2 authorizes agreements in lieu of protracted litigation, it 
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does not authorize the extensive measures taken in the Consent 
Agreement: 
In the event any portion of Chapter 163 of the General 
Statutes or any State election law or form of election 
of any county board of commissioners, local board of 
education, or city officer is held unconstitutional or 
invalid by a State or federal court or is 
unenforceable because of objection interposed by the 
United States Justice Department under the Voting 
Rights Act of 1965 and such ruling adversely affects 
the conduct and holding of any pending primary or 
election, the State Board of Elections shall have 
authority to make reasonable interim rules and 
regulations with respect to the pending primary or 
election as it deems advisable so long as they do not 
conflict with any provisions of this Chapter 163 of 
the General Statutes and such rules and regulations 
shall become null and void 60 days after the convening 
of the next regular session of the General Assembly. 
The State Board of Elections shall also be authorized, 
upon recommendation of the Attorney General, to enter 
into agreement with the courts in lieu of protracted 
litigation until such time as the General Assembly 
convenes. 
 
N.C. Gen. Stat. § 163-22.2. While the authority delegated under 
this statute is broad, it limits SBE’s powers to implementing 
rules that “do not conflict with any provisions of this 
Chapter.” Moreover, this power appears to exist only “until such 
time as the General Assembly convenes.” Id. By eliminating the 
witness requirement, SBE implemented a rule that conflicted 
directly with the statutes enacted by the North Carolina 
legislature.  
Moreover, SBE’s power to “enter into agreement with the 
courts in lieu of protracted litigation” is limited by the 
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language “until such time as the General Assembly convenes.” Id. 
Plaintiffs appear to have a remedy to what they contend is an 
overreach of SBE authority by convening. 
ii. SBE’s Power to Override the Legislature 
in an Emergency 
 
 
Second, Defendants rely upon N.C. Gen. Stat. § 163-27.1. 
That statute provides: 
(a) The Executive Director, as chief State elections 
official, may exercise emergency powers to conduct an 
election in a district where the normal schedule for 
the election is disrupted by any of the following: 
 
(1) A natural disaster. 
 
(2) Extremely inclement weather. 
 
(3) An armed conflict involving Armed Forces of 
the United States, or mobilization of those 
forces, including North Carolina National Guard 
and reserve components of the Armed Forces of the 
United States. 
 
N.C. Gen. Stat. § 163-27.1(a)(1-3). As neither (a)(2) or (3) 
apply, the parties agree that only (a)(1), a natural disaster, 
is at issue in this case. On March 10, 2020, the Governor of 
North Carolina declared a state of emergency as a result of the 
spread of COVID-19. N.C. Exec. Order No. 116 (March 10, 2020). 
Notably, the Governor did not declare a disaster pursuant to  
N.C. Gen. Stat. § 166A-19.21. Instead, on March 25, 2020, it was 
the President of the United States who declared a state of 
disaster existed in North Carolina: 
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I have determined that the emergency conditions in the 
State of North Carolina resulting from the Coronavirus 
Disease 2019 (COVID-19) pandemic beginning on January 
20, 2020, and continuing, are of sufficient severity 
and magnitude to warrant a major disaster declaration 
under the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the 
“Stafford Act”). Therefore, I declare that such a 
major disaster exists in the State of North Carolina. 
 
Notice, North Carolina; Major Disaster and Related 
Determinations, 85 Fed. Reg. 20701 (Mar. 25, 2020) (emphasis 
added). The President cited the Stafford Act as justification 
for declaring a major disaster. See 42 U.S.C. § 5122(2). 
Notably, neither the Governor’s Emergency Proclamation nor the 
Presidential Proclamation identified COVID-19 as a natural 
disaster. 
 
On March 12, 2020, the Executive Director of SBE, Karen 
Brinson Bell (“Bell”), crafted an amendment to SBE’s Emergency 
Powers rule. Bell’s proposed rule change provided as follows: 
(a) In exercising his or her emergency powers and 
determining whether the “normal schedule” for the 
election has been disrupted in accordance with G.S. 
163A-750, 163-27.1, the Executive Director shall 
consider whether one or more components of election 
administration has been impaired. The Executive 
Director shall consult with State Board members when 
exercising his or her emergency powers if feasible 
given the circumstances set forth in this Rule. 
 
(b) For the purposes of G.S. 163A-750, 163-27.1, the 
following shall apply: 
 
 
(1) A natural disaster or extremely inclement 
weather include a: any of the following: 
 
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(A) Hurricane; 
 
 
(B) Tornado; 
 
 
(C) Storm or snowstorm; 
 
 
(D) Flood; 
 
 
(E) Tidal wave or tsunami; 
 
 
(F) Earthquake or volcanic eruption; 
 
 
(G) Landslide or mudslide; or 
(H) Catastrophe arising from natural causes 
resulted and resulting in a disaster 
declaration by the President of the United 
States or the Governor. Governor, a national 
emergency declaration by the President of 
the United States, or a state of emergency 
declaration issued under G.S. 166A-19.3(19). 
“Catastrophe arising from natural causes” 
includes a disease epidemic or other public 
health incident. The disease epidemic or 
other public health incident must make [that 
makes] it impossible or extremely hazardous 
for elections officials or voters to reach 
or otherwise access the voting [place or 
that creates] place, create a significant 
risk of physical harm to persons in the 
voting place, or [that] would otherwise 
convince a reasonable person to avoid 
traveling to or being in a voting place.  
 
https://files.nc.gov/ncoah/documents/Rules/RRC/06182020-Follow-
up-Tab-B-Board-of-Elections.pdf at 5 (proposed changes in 
strikethroughs, or underline.) Shortly after submitting the rule 
change, effective March 20, 2020, SBE declared COVID-19 a 
natural disaster, attempting to invoke its authority under the 
Emergency Powers Statute, § 163-27.1. However, the Rules Review 
Commission subsequently unanimously rejected Bell’s proposed 
rule change, finding in part that there was a “lack of statutory 
authority as set forth in G.S. 150B-21.9(a)(1),” and more 
specifically, that “the [SBE] does not have the authority to 
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expand the definition of ‘natural disaster’ as proposed.” North 
Carolina Office of Administrative Hearings, Rules Review 
Commission Meeting Minutes (May 21, 2020), at 4 
https://files.nc.gov/ncoah/Minutes-May-2020.pdf.  
In a June 12, 2020 letter, the Rules Review Commission 
Counsel indicated that Bell had responded to the committee’s 
findings by stating “that the agency will not be submitting a 
new statement or additional findings,” and, as a result, “the 
Rule [was] returned” to the agency. Letter re: Return of Rule 08 
NCAC 01.0106 (June 12, 2020) at 1 https://files.nc.gov/ncoah/ 
documents/Rules/RRC/06182020-Follow-up-Tab-B-Board-of-
Elections.pdf. Despite the Rules Review Commission’s rejection 
of Bell’s proposed changes, on July 17, 2020, Bell issued an 
Emergency Order with the following findings: 
 
18. N.C. Gen. Stat. § 163-27.1 and 08 NCAC 01. 
0106 authorize me to exercise emergency powers to 
conduct an election where the normal schedule is 
disrupted by a catastrophe arising from natural causes 
that has resulted in a disaster declaration by the 
President of the United States or the Governor, while 
avoiding unnecessary conflict with the laws of North 
Carolina. The emergency remedial measures set forth 
here are calculated to offset the nature and scope of 
the disruption from the COVID-19 disaster. 
 
 
19. Pursuant to N.C. Gen. Stat. § 163-27.1 and 08 
NCAC 01. 0106(a) and (b), and after consultation with 
the State Board, I have determined that the COVID-19 
health emergency is a catastrophe arising from natural 
causes — i.e., a naturally occurring virus — resulting 
in a disaster declaration by the President of the 
United States and a declaration of a state of 
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emergency by the Governor, and that the disaster has 
already disrupted and continues to disrupt the 
schedule and has already impacted and continues to 
impact multiple components of election administration. 
 
(Democracy N. Carolina, No. 1:20CV457 (Doc. 101-1) ¶¶ 18-19.) 
This directly contradicted the Rules Commission’s finding that 
such a change was outside SBE’s authority. In keeping with 
Bell’s actions, the State failed to note in argument before this 
court that Bell’s proposal had been rejected explicitly because 
SBE lacked statutory authority to exercise its emergency powers. 
In fact, at the close of a hearing before this court, the State 
made the following arguments: 
but the Rules Review Commission declined to let it go 
forward as a temporary rule, I think I’m remembering 
this right, without stating why. But it did not go 
through.  
 
 
In the meantime, the president had declared a 
state of national -- natural disaster declaration. The 
president had declared a disaster declaration, so 
under the existing rule, the powers kicked into place. 
 
 
. . . .  
 
 
And the statute that does allow her to make those 
emergency decisions says in it, in exercising those 
emergency decisions says in it, in exercising those 
emergency powers, the Executive Director shall avoid 
unnecessary conflict with the provisions of this 
chapter, this chapter being Chapter 163 of the 
election laws. 
 
(Democracy N. Carolina, No. 1:20CV457, Evidentiary Hr’g Tr. vol. 
3 (Doc. 114) at 109.) This court agrees with the Rules Review 
Commission: re-writing the definition of “natural disaster” is 
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outside SBE’s rulemaking authority. N.C. Gen. Stat. § 163-
27.1(a)(1) limits the Executive Director’s emergency powers to 
those circumstances where “the normal schedule for the election 
is disrupted by any of the following: (1) A natural disaster.”7 
Nor does the President’s major disaster proclamation define 
COVID-19 as a “natural disaster” – at least not as contemplated 
by the state legislature when § 163-27.1 (or its predecessor, 
§ 163A-750) was passed. To the contrary, the Emergency Powers 
are limited to an election “in a district where the normal 
schedule for the election is disrupted.” N.C. Gen. Stat. § 163-
27.1(a). Nothing about COVID-19 disrupts the normal schedule for 
the election as might be associated with hurricanes, tornadoes, 
or other natural disasters. 
 
 
 
 
 
(a)  Elimination of the Witness  
 
 
 
 
 
 
 
Requirement 
 
Finally, even if, as SBE argues, it had the authority to 
enter into a Consent Agreement under its emergency powers, it 
did not have the power to contradict statutory authority by 
eliminating the witness requirement. See N.C. Gen. Stat. § 163-
27.1(a) (“In exercising those emergency powers, the Executive 
Director shall avoid unnecessary conflict with the provisions of 
                     
7 Notably, Bell makes no finding as to whether this is a 
Type I, II, or III Declaration of Disaster, which would in turn 
limit the term of the Disaster Declaration. See, e.g., N.C. Gen. 
Stat. § 166A-19.21. 
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this Chapter.”) (emphasis added). The legislature implemented a 
witness requirement and SBE removed that requirement. This is 
certainly an unnecessary conflict with the legislature’s 
choices.  
By the State’s own admission, any ballots not subject to 
witnessing would be unverified. The State of North Carolina 
argued as much in urging this court to uphold the one-witness 
requirement: 
 
As Director Bell testified, it is a basic bedrock 
principle of elections that you have some form of 
verifying that the voter is who they say they are; 
voter verification. As she said, when a voter comes 
into the poll, whether that is on election day proper 
or whether it is by –  
 
 
. . . . 
 
 
Obviously, you can’t do that when it is an 
absentee ballot. Because you don’t see the voter, you 
can’t ask the questions. So the witness requirement, 
the purpose of it is to have some means that the 
person who sent me this is the person -- the person 
who has sent this absentee ballot is who they say they 
are. That’s the purpose of the witness requirement. 
The witness is witnessing that they saw this person, 
and they know who they are, that they saw this person 
fill out the ballot and prepare the ballot to mail in. 
And that is the point of it.  
 
And, as Director Bell testified, I mean, we’ve 
heard a lot from the Plaintiffs about how many states 
do not have witness requirements. And that is true, 
that the majority of states, I think at this point, do 
not have a witness requirement. 
 
But as Director Bell testified, they’re going to 
have one of two things. They’re going to either have 
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the witness requirement, or they’re going to have a 
means of verifying the signature . . . . 
 
 
One thing -- and I think that is unquestionably 
an important State interest. Some means of knowing 
that this ballot that says it came from Alec Peters 
actually is from Alec Peters, because somebody else 
put their name down and said, yes, I saw Alec Peters 
do this. I saw him fill out this ballot.  
 
 
Otherwise, we have no way of knowing who the 
ballot -- whether the ballot really came from the 
person who voted. It is there to protect the integrity 
of the elections process, but it is also there to 
protect the voter, to make sure that the voter knows -
- everybody knows that the voter is who they say they 
are, and so that somebody else is not voting in their 
place. 
 
 
Additionally, it is a tool for dealing with voter 
fraud. 
 
(Democracy N. Carolina, No. 1:20CV457, Evidentiary Hr’g Tr. vol. 
3 (Doc. 114) at 111-12.) In this hearing, the State continued on 
to note that “there needs to be some form of verification of who 
the voter is,” which can “either be through a witness 
requirement or . . . through signature verification,” but “it 
needs to be one or the other.” (Id. at 115-16.) Losing the 
witness requirement, according to the State, would mean having 
“no verification.” (Id. at 116.) Contravening a legislatively 
implemented witness requirement and switching to a system of “no 
verification,” (id.), was certainly not a necessary conflict 
under § 163-27.1(a). 
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SBE argues that this court does not have authority to 
address how this switch contradicted state law and went outside 
its validly delegated emergency powers. This is a state law 
issue, as the dispute is over the extent of the Executive 
Director’s authority as granted to her by the North Carolina 
Legislature. The State claims that, since a North Carolina 
Superior Court Judge has approved this exercise of authority, 
this court is obligated to follow that state court judgment. 
(SBE Resp. (Doc. 65) at 16.)  
However, when the Supreme Court of a state has not spoken, 
federal courts must predict how that highest court would rule, 
rather than automatically following any state court that might 
have considered the question first. See Doe v. Marymount Univ., 
297 F. Supp. 3d 573, 590 (E.D. Va. 2018) (“[F]ederal courts are 
not bound to follow state trial court decisions in exercising 
their supplemental jurisdiction.”). The Fourth Circuit has 
addressed this issue directly in diversity jurisdiction contexts 
as well: 
a federal court sitting in diversity is not bound by a 
state trial court’s decision on matters of state law. 
In King v. Order of United Commercial Travelers of 
America, 333 U.S. 153, 68 S. Ct. 488, 92 L. Ed. 608 
(1948), the Supreme Court upheld the Fourth Circuit’s 
refusal to follow an opinion issued by a state trial 
court in a South Carolina insurance case. The Court 
concluded, “a Court of Common Pleas does not appear to 
have such importance and competence within South 
Carolina’s own judicial system that its decisions 
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should be taken as authoritative expositions of that 
State’s ‘law.’” Id. at 161, 68 S. Ct. 488.  
 
Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of 
S.C., 433 F.3d 365, 370 (4th Cir. 2005). In other words, this 
court’s job is to predict how the Supreme Court of North 
Carolina would rule on the disputed state law question. Id. at  
369 (“If the Supreme Court of [North Carolina] has spoken 
neither directly nor indirectly on the particular issue before 
us, [this court is] called upon to predict how that court would 
rule if presented with the issue.”)(quotation omitted); Carter 
v. Fid. Life Ass’n, 339 F. Supp. 3d 551, 554 (E.D.N.C.), aff’d, 
740 F. App’x 41 (4th Cir. 2018) (“Accordingly, the court applies 
North Carolina law, and the court must determine how the Supreme 
Court of North Carolina would rule.”). In predicting how the 
North Carolina Supreme Court might decide, this court 
“consider[s] lower court opinions in [North Carolina], the 
teachings of treatises, and the practices of other 
states.” Twin City Fire Ins. Co., 433 F.3d at 369. This court 
“follow[s] the decision of an intermediate state appellate court 
unless there is persuasive data that the highest court would 
decide differently.” Town of Nags Head v. Toloczko, 728 F.3d 
391, 397-98 (4th Cir. 2013).  
In all candor, this court cannot conceive of a more 
problematic conflict with the provisions of Chapter 163 of the 
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North Carolina General Statutes than the procedures implemented 
by the Revised 2020-19 memo and the Consent Order. Through this 
abandonment of the witness requirement, some class of voters 
will be permitted to submit ballots with no verification. Though 
SBE suggests that its “cure” is sufficient to protect against 
voter fraud, the cure provided has few safeguards: it asks only 
if the voter “voted” with no explanation of the manner in which 
that vote was exercised. (Moore v. Circosta, No. 1:20CV911, 
State Court Consent Judgment (Doc. 45-1) at 34.) This court 
believes this is in clear violation of SBE’s powers, even its 
emergency powers under N.C. Gen. Stat. § 163-27.1(a). However, 
none of this changes the fact that Plaintiffs in both Wise and 
Moore lack standing to challenge the legitimacy of SBE’s 
election rule-setting power under either the Elections Clause or 
the Electors Clause.  
III. CONCLUSION 
 
This court believes the unequal treatment of voters and the 
resulting Equal Protection violations as found herein should be 
enjoined. Nevertheless, under Purcell and recent Supreme Court 
orders relating to Purcell, this court is of the opinion that it 
is required to find that injunctive relief should be denied at 
this late date, even in the face of what appear to be clear 
violations. For the foregoing reasons, this court finds that in 
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Moore v. Circosta, No. 1:20CV911, Plaintiffs’ Motion for 
Preliminary Injunction should be denied. This court also finds 
that in Wise v. N. Carolina State Bd. of Elections, No. 
1:20CV912, the Plaintiffs’ Motion to Convert the Temporary 
Restraining Order into a Preliminary Injunction should be 
denied. 
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for 
Preliminary Injunction in Moore v. Circosta, No. 1:20CV911, 
(Doc. 60), is DENIED.  
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Convert 
the Temporary Restraining Order into a Preliminary Injunction in 
Wise v. N. Carolina State Bd. of Elections, No. 1:20CV912, (Doc. 
43), is DENIED. 
 
This the 14th day of October, 2020. 
 
 
 
 
 
 
 
 
 
__________________________________ 
 
 
 
 
 
 
   United States District Judge 
 
 
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