In the United States District Court for the Middle District of North Carolina

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER,

Plaintiffs,

THE NORTH CAROLINA STATE BOARD OF ELECTIONS; DAMON CIRCOSTA, in his official capacity as CHAIR OF THE STATE BOARD OF ELECTIONS; STELLA Civil Action No. 20-cv-00457 ANDERSON, in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS; KEN RAYMOND, in his official REPUBLICAN capacity as MEMBER OF THE STATE BOARD COMMITTEES’ MOTION OF ELECTIONS; JEFF CARMON III, in his FOR RECONSIDERATION OF official capacity as MEMBER OF THE STATE COURT’S JUNE 24, 2020 BOARD OF ELECTIONS; DAVID C. BLACK, in ORDER (DKT. NO. 48) AND his official capacity as MEMBER OF THE ALTERNATIVE MOTION STATE BOARD OF ELECTIONS; KAREN FOR LEAVE TO FILE AMICI BRINSON BELL, in her official capacity as CURIAE BRIEF EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants,

Case 1:20-cv-00457-WO-JLW Document 52 Filed 06/26/20 Page 1 of 4 and

PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; AND TIMOTHY K. MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,

Intervenor-Defendants.

MOTION FOR RECONSIDERATION AND ALTERNATIVE MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

Pursuant to Fed. R. Civ. P. 54(b), Proposed Intervenor-Defendants the Republican

National Committee (“RNC”), National Republican Senatorial Committee (“NRSC”),

National Republican Congressional Committee (“NRCC”), and North Carolina Republican

Party (“NCRP”) (collectively the “Republican Committees”) move for reconsideration of the court’s June 24, 2020 order denying the Republican Committees’ motion to intervene.

The Republican Committees respectfully request that the motion be granted for the reasons stated in the accompanying memorandum in support of this motion, which is attached as

Exhibit A. The Republican Committees submit this motion in accordance with the preliminary injunction briefing scheduled entered by the Court. See Order (June 18, 2020)

(Dkt. No. 29).

Alternatively, should the Court deny the motion for reconsideration, the Republican

Committees request leave to file a brief as amici curiae in opposition to Plaintiffs’ amended motion for a preliminary injunction. The Republican Committees make this request, which is supported by the accompanying memorandum, in accordance with L.R. 7.5 and the

Case 1:20-cv-00457-WO-JLW Document 52 Filed 06/26/20 Page 2 of 4 Court’s June 24, 2020 order, which provides that “[t]he court will consider, at the appropriate time, whether Proposed Intervenors and any other interested non-parties should

be allowed to participate by filing timely amicus curiae briefs consistent with Federal Rule

of Civil Procedure 1.” Order at 7 (June 24, 2020) (Dkt. No. 48).

Dated: June 26, 2020 Respectfully submitted,

/s/ Bobby R. Burchfield Bobby R. Burchfield (pro hac vice pending) Matthew M. Leland (pro hac vice pending) King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 [email protected] [email protected]

R. Scott Tobin (N.C. Bar No. 34317) Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: [email protected]

Counsel for the Republican Committees

Case 1:20-cv-00457-WO-JLW Document 52 Filed 06/26/20 Page 3 of 4

CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that, on June 26, 2020, I electronically filed the foregoing Motion for Reconsideration and Alternative Motion for Leave to File

Amici Curiae Brief and Proposed Orders with the Clerk of the Court using the CM/ECF system.

/s/ Bobby R. Burchfield Bobby R. Burchfield

Case 1:20-cv-00457-WO-JLW Document 52 Filed 06/26/20 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

v. [PROPOSED] ORDER THE NORTH CAROLINA STATE BOARD GRANTING MOTION FOR OF ELECTIONS; DAMON CIRCOSTA, in his RECONSIDERATION official capacity as CHAIR OF THE STATE BOARD OF ELECTIONS; STELLA ANDERSON, in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS; KEN RAYMOND, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; JEFF CARMON III, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; KAREN BRINSON BELL, in her official capacity as EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants,

Case 1:20-cv-00457-WO-JLW Document 52-1 Filed 06/26/20 Page 1 of 2

and

Intervenors,

and

REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, AND REPUBLICAN PARTY OF NORTH CAROLINA,

Proposed Republican Committee Intervenors.

It is hereby ORDERED that Proposed Republican Committee Intervenors’ Motion for Reconsideration of the June 24, 2020 Order denying Proposed Intervenors’ Motion to

Intervene is GRANTED.

It is further ORDERED that the Motion to Intervene is hereby GRANTED.

SO ORDERED.

DATED: ______William L. Osteen, Jr. United States District Judge

Case 1:20-cv-00457-WO-JLW Document 52-1 Filed 06/26/20 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B. CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER, Civil Action No. 20-cv-00457 Plaintiffs,

v. [PROPOSED] ORDER THE NORTH CAROLINA STATE BOARD GRANTING MOTION FOR OF ELECTIONS; DAMON CIRCOSTA, in his LEAVE TO FILE AMICI official capacity as CHAIR OF THE STATE CURIAE BRIEF BOARD OF ELECTIONS; STELLA ANDERSON, in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS; KEN RAYMOND, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; JEFF CARMON III, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; KAREN BRINSON BELL, in her official capacity as EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants, and

Case 1:20-cv-00457-WO-JLW Document 52-2 Filed 06/26/20 Page 1 of 2

Intervenors.

It is hereby ORDERED that Proposed Republican Committee Intervenors’ Motion for Reconsideration of Order Denying Intervention is hereby DENIED.

It is further ORDERED that the Republican Committees’ Motion for Leave to File

Brief as Amici Curiae in response to Plaintiffs’ Amended Motion for a Preliminary

Injunction is GRANTED.

SO ORDERED.

DATED: ______William L. Osteen, Jr. United States District Judge

Case 1:20-cv-00457-WO-JLW Document 52-2 Filed 06/26/20 Page 2 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEMOCRACY NORTH CAROLINA, THE LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DONNA PERMAR, JOHN P. CLARK, MARGARET B.

CATES, LELIA BENTLEY, REGINA WHITNEY EDWARDS, ROBERT K. PRIDDY II, WALTER HUTCHINS, AND SUSAN SCHAFFER, Civil Action No. 20-cv-457

Plaintiffs, vs.

THE NORTH CAROLINA STATE BRIEF OF AMICI CURIAE BOARD OF ELECTIONS; DAMON REPUBLICAN COMMITTEES CIRCOSTA, in his official capacity as CHAIR OF THE STATE BOARD OF ELECTIONS; STELLA ANDERSON, in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS; KEN RAYMOND, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; JEFF CARMON III, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; KAREN BRINSON BELL, in her official capacity as EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN,

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 1 of 38

in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants, and

PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate, and TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives,

Intervenors.

BRIEF OF AMICI CURIAE REPUBLICAN COMMITTEES

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii INTERESTS OF THE AMICI ...... 1 INTRODUCTION ...... 1 BACKGROUND ...... 2 STANDARD OF REVIEW ...... 5 ARGUMENT ...... 7 I. Plaintiffs’ Suit Is an Affront to the Constitutional Order...... 7 II. The Enactment of H.B. 1169 Moots a Significant Portion of Plaintiffs’ Claims...... 11 A. Challenges to the Requirements for “Two Witnesses” and Absentee Ballot Procedures Are Moot...... 12 B. Plaintiffs’ Procedural Due Process Claim is Now Moot...... 14 C. Plaintiffs’ Have No Voting Rights Act Claim...... 14 III. Plaintiffs Are Unlikely To Succeed on the Merits of Claims Involving North Carolina’s Administration and Oversight of Voting...... 15 A. North Carolina’s Voting Laws Do Not Unduly Burden the Plaintiffs’ Right to Vote...... 15 B. The North Carolina Absentee Voting Laws Do Not Implicate Plaintiffs’ First Amendment Rights...... 19 C. The Voting Laws Do Not Violate the ADA or Rehabilitation Act...... 22 1. North Carolina Adopted Reasonable Accommodations for Voters under the ADA and Rehabilitation Act...... 22

2. North Carolina’s Voting Laws Do Not Have a Disparate Impact on Disabled Voters...... 25

IV. A Stay is Appropriate to Assess the State’s Election Reforms...... 26 CONCLUSION ...... 27

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 3 of 38

TABLE OF AUTHORITIES

Page(s)

Cases

A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270 (11th Cir. 2018) ...... 23

Anderson v. Celebrezze, 460 U.S. 780 (1983) ...... 5

B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152 (2d Cir. 2016) ...... 26

Bostock v. Clayton Cty., Georgia, 2020 WL 3146686 (U.S. June 15, 2020) ...... 10, 18

Brooks v. Vassar, 462 F.3d 341 (4th Cir. 2006) ...... 15

Burdick v. Takushi, 504 U.S. 428 (1992) ...... 5

Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992) ...... 11

Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) ...... 6, 9, 16, 21

Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997) ...... 26

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ...... 9

Goldstein v. Sec’y of Commonwealth, 484 Mass. 516 (2020) ...... 10

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ...... 24

J. D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663 (4th Cir. 2019) ...... 22, 23, 24 ii

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Key v. Bd. of Voter Registration of Charleston Cty., 622 F.2d 88 (4th Cir. 1980) ...... 16

Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018) ...... 20

Kremens v. Bartley, 431 U.S. 119 (1977) ...... 11, 12

League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298 (S.D. Fla. 2008) ...... 20

Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) ...... 6, 17, 23, 25

Massachusetts v. Oakes, 491 U.S. 576 (1989) ...... 12

MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335 (4th Cir. 2001) ...... 5

N.C. Growers’ Ass’n, Inc. v. Solis, No. 1:09CV411, 2011 WL 4708026 (M.D.N.C. 2011) ...... 11

N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012) ...... 11

N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020) ...... 12, 13

Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) ...... 7, 22

Parson v. Alcorn, 157 F. Supp. 3d 479 (E.D. Va. 2016) ...... 5, 6

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) ...... 23

Pope v. Easley, 354 N.C. 544 (2001) ...... 8, 9

iii

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Princeton Univ. v. Schmid, 455 U.S. 100 (1982) ...... 12

Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) ...... 19

Seremeth v. Bd. of Cty. Comm’rs Frederick Cty. ¸673 F.3d 333 (4th Cir. 2012) ...... 6

Texas v. Johnson, 491 U.S. 397 (1989) ...... 19

Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565 (2d Cir. 2003) ...... 26

U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556 (1986) ...... 12

Voting for America v. Steen, 732 F.3d 382 (5th Cir. 2013) ...... 19, 20, 21

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ...... 5

Statutes

H.B. 1169, Bipartisan Elections Act of 2020 (N.C. 2020) ...... passim

N.C.G.S. 163-226.3 ...... 19

N.C.G.S. § 163-42(b) ...... 4, 13

N.C.G.S. § 163-82.6(d)(1) ...... 3

N.C.G.S. § 163-226.3 ...... 3, 19

N.C.G.S. § 163-227.6(c) ...... 4

N.C.G.S. § 163-230.2 ...... 19

N.C.G.S. § 163-230.2(a), (e)(1) ...... 3

N.C.G.S. § 163-231 ...... 15

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N.C.G.S. § 163-231(a) ...... 3

N.C.G.S § 163-231(b)(1) ...... 3

Voting Rights Act of 1965 Section 208, 52 U.S.C. § 10508 ...... 14

Other Authorities

28 C.F.R. § 35.130 ...... 25

First Amendment ...... 19, 20, 21

U.S. Const. art. I, § 4, cl. 1 ...... 1

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INTERESTS OF THE AMICI

The Republican National Committee (“RNC”), the National Republican

Senatorial Committee (“NRSC”), and the National Republican Congressional

Committee (“NRCC”) are national political party committees and national political organizations of the Republican Party of the United States, and the North Carolina

Republican Party (“NCRP”) is a state political organization of the Republican

Party (collectively, “Republican Committees”).

The Republican Committees represent interests of Republican voters and candidates for federal, state, and local elected offices. They engage in a wide range of party-building activities including voter registration and turnout programs.

Based on their experience with these activities in North Carolina and across the country, the Republican Committees have substantial expertise in voting practices and procedures, and their perspectives these matters will assist the Court.

INTRODUCTION

The Constitution requires that state legislatures “shall” regulate the “Times,

Places and Manner of holding Elections for Senators and Representatives.” U.S.

Const. art. I, § 4, cl. 1. Consistent with its authority, the General Assembly enacted, and Governor Roy Cooper signed into law, H.B. 1169, Session Law 2020-17, to address challenges to voting in the 2020 election that might arise from COVID-19.

H.B. 1169 provides much of the precise relief requested in Plaintiffs’ initial

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complaint. Dissatisfied with the legislature’s response to the pandemic, Plaintiffs ask this court to replace the duly enacted legislation with its own policy judgments. Not only are Plaintiffs’ requests an affront to the constitutional order, they are largely moot. Plaintiffs are unlikely to prevail on the few claims that might remain.

Accordingly, Amici urge the Court to deny Plaintiffs’ motion, or alternatively, stay the case to allow the state sufficient time to implement the statute’s protective measures for voting.

BACKGROUND

On June 12, 2020, the North Carolina General Assembly enacted H.B. 1169,

which adopted changes to voting procedures to address the COVID-19 pandemic.

The law:

• Eliminates the requirement that two witnesses or a notary public sign an absentee ballot application (the “Two Witness Requirement”). § 1(a).

• Allows voters to call the State or county board of elections to request a blank absentee ballot request form be sent to the voter via mail, e- mail, or fax. § 5(a).

• Enables voters to request absentee ballots online. § 163-230.3(a).

• Allows completed requests for absentee ballots to be returned in person or by mail, e-mail, or fax. § 2.(a).

• Eliminates the precinct residency requirement for poll workers. § 1.(b).

• Permits “multipartisan team” members to help any voter complete absentee ballot request forms and absentee ballots. § 1.(c).

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• Provides for “a bar code or other unique identifier” to track absentee ballots. § 3.(a)(9).

• Expands the types of identification an individual can present to vote. § 10(a)(2)(d).

• Requires the Department of Health and Human Services (“DHHS”) and the State Board of Elections (“SBE”) to develop guidance to allow multipartisan teams safely to assist vulnerable registered voters, and to submit a report to the government by August 1, 2020. § 2.(b).

• Appropriates $26 million to the SBE “to prevent, prepare for, and respond to the coronavirus pandemic during the 2020 federal election cycle.” § 11.1.(a).

Because the new law resolved many claims in Plaintiffs’ initial complaint,

Plaintiffs were granted leave to file a Second Amended Complaint, Doc. 30, and an

Amended Motion for Preliminary Injunction, Doc. 31 (“Amended Motion”). The

Amended Motion removed several of Plaintiffs’ earlier claims, but they continue to challenge provisions:

• Requiring voter registration applications to be postmarked at least 25 days before the election. N.C.G.S. § 163-82.6(d)(1); Am. Mot., Doc. 31 at 4; see also Second Am. Compl., Doc. 30 at ¶ 92.

• Restricting requests for absentee ballots by phone. See N.C.G.S. § 163-230.2(a), (e)(1); Am. Mot., Doc. 31 at 4; Second Am. Compl., Doc. 30 at ¶¶ 103–05.

• Limiting who can assist a voter to return an absentee ballot request, and mark and return an absentee ballot. N.C.G.S. § 163- 226.3(a)(4)–(6), § 163-231(a), § 163-231(b)(1); Am. Mot., Doc. 31 at 4–5; Second Am. Compl., Doc. 30 at ¶ 96.

• Requiring one witnesses or a notary public to witness and sign an absentee ballot application (the “Witness” requirement). N.C.G.S.

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§ 163-231(a), as amended by H.B. 1169; Am. Mot., Doc. 31 at 5; Second Am. Compl., Doc. 30 at ¶¶ 99–100.

• Requiring that poll workers reside in the county where they serve on election day. See N.C.G.S. § 163-42(b), as amended by H.B. 1169; Am. Mot., Doc. 31 at 5.

• Requiring uniform hours at early voting locations in every county. See N.C.G.S. § 163-227.6(c); Am. Mot., Doc. 31 at 5; see also Second Am. Compl., Doc. 30 at ¶ 110.

• Preventing individuals from submitting alternative proof of residency such as HAVA documents with their absentee request forms. Am. Mot., Doc. 31 at 4; Second Am. Compl. at ¶ 97.

Plaintiffs also contend the laws are insufficient because they do not provide:

• A “fail-safe” option for mail-in absentee voters if state election officials cannot deliver mail-in ballots on time. Am. Mot., Doc 31 at 7; Second Am. Compl. at ¶ 97.

• “Contactless drop boxes” to minimize the possibility of COVID-19 transmission. Am. Mot., Doc. 31 at 6; Second Am. Compl., Doc. 30 at ¶ 103.

• A procedure to cure defects in absentee ballot request forms or absentee ballots. Am. Mot., Doc. 31 at 7; Second Am. Compl., Doc. 30 at ¶ 104.

• A “centralized way” for voters and advocates to “monitor precinct consolidation.” Am. Mot., Doc. 31 at 7; Second Am. Compl., Doc. 30 at ¶ 113.

• Personal protective equipment (“PPE”) for poll workers. Second Am. Compl. at ¶ 114.

• Use of Federal Write-in Absentee Ballots (“FWAB”) if an absentee ballot does not arrive in time. See Second Am. Compl. ¶ 73.

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Plaintiffs ask the Court to declare North Carolina’s voting procedures unlawful, enter an order imposing these additional measures, and supervise

Defendants’ compliance with any relief granted. See Second Am. Compl. at 79, 81–

86.

STANDARD OF REVIEW

As the Fourth Circuit recognizes, “preliminary injunctions are extraordinary

remedies involving the exercise of very far-reaching power to be granted only

sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245

F.3d 335, 339 (4th Cir. 2001) (quotation marks omitted). A plaintiff seeking a

preliminary injunction must establish a likelihood of success on the merits,

irreparable harm without relief, that the balance of equities tips in plaintiff’s favor,

and that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008).

Plaintiffs’ First and Fourteenth Amendment challenges to North Carolina’s

voting laws are subject to the “Anderson-Burdick” balancing test set in Anderson v.

Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). See

Parson v. Alcorn, 157 F. Supp. 3d 479, 492 (E.D. Va. 2016). The test requires the

Court to (1) “consider the character and magnitude” of any injury to rights protected

by the First and Fourteenth Amendments, (2) evaluate the precise interests of the

State that justify the burden imposed, and (3) “determine the legitimacy and strength

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of each of [the State’s] interests” and “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Lee v. Va. State Bd. of Elections, 843

F.3d 592, 605 (4th Cir. 2016) (citation and quotation marks omitted). The level of scrutiny depends on the burden: “[w]hen the plaintiffs’ rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance[,]” but “when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth

Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Alcorn, 157 F. Supp. 3d at 492. Moreover, the state’s interests are measured against the remedy plaintiffs seek. See Crawford, 553

U.S. at 199–200 (under the balancing test, a court must take into account the specific

relief sought by the plaintiffs). State election laws are generally not subject to strict

scrutiny, “even though voting rights are fundamental under the Constitution.” Lee,

843 F.3d at 605.

To prevail on their claims under the Americans with Disabilities and the

Rehabilitation Acts,1 Plaintiffs must prove they (1) have a disability; (2) are qualified to receive the benefits of a public service, program, or activity; and (3) are denied

1 As Plaintiffs recognize (Doc. 10 at 64 n.10), “[c]laims under the ADA’s Title II and the Rehabilitation Act can be combined for analytical purposes because the analysis is ‘substantially the same.’” Seremeth v. Bd. of Cty. Comm’rs Frederick Cty.¸673 F.3d 333, 336 n.1 (4th Cir. 2012) (citation omitted). 6

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those benefits or otherwise discriminated against because of their disabilities. Nat’l

Fed. of the Blind v. Lamone, 813 F.3d 494, 502–03 (4th Cir. 2016).

ARGUMENT

Plaintiffs’ case for a preliminary injunction fails. First, the authority to regulate elections is vested in the General Assembly, not the courts. Second, H.B.

1169 moots a significant portion (if not all) of Plaintiffs’ claims. Third, Plaintiffs’

remaining challenges, such as to the 25-day post-mark requirement for absentee

ballots and uniform voting hours for early voting, are unlikely to prevail on the

merits. Finally, Plaintiffs’ request for injunctive relief is premature because H.B.

1169 requires state officials to evaluate the new voting procedures to determine if

they are sufficient to address any impediments to voting that might be caused by the

pandemic. A preliminary injunction would undermine that evaluation. Accordingly,

if the Court were inclined to issue relief, Amici urge the Court to enter a brief stay

to allow the State to complete its evaluation, and then determine if H.B. 1169

addresses Plaintiffs’ remaining claims.

I. Plaintiffs’ Suit Is an Affront to the Constitutional Order.

In June, by a vote of 105-14 in the House and 37-12 in the Senate, strong

bipartisan majorities of the legislature passed H.B. 1169, and Governor Cooper

signed the bill into law. See Declaration of Matthew Leland (June 26, 2020)

(“Leland Decl.”), Exhibit 1 (H.B. 1169, Voting Record). The legislation responds

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directly to the possible effect of the pandemic on the election. By passing H.B. 1169,

the General Assembly fulfilled its obligation under Article I, Section 4, of the United

States Constitution, which mandates that “[t]he Times, Places and Manner of

holding Elections for Senators and Representatives, shall be prescribed in each State

by the Legislature thereof.” It also acted in accord with the North Carolina

Constitution, which provides that the legislative power rests “with the people and is

exercised thorough the General Assembly, which functions as the arm of the

electorate.” Pope v. Easley, 354 N.C. 544, 546 (2001).

Plaintiffs invite this Court to ignore the constitutional order and substitute its

judgment for the collective judgment of two duly elected houses of the General

Assembly and the duly elected Chief Executive. The issues before this Court were

presented to the General Assembly, fully considered, and resolved. Acting swiftly

and deliberately, the legislature balanced policy goals, reached compromises, and

enacted substantial legislation to address the pandemic. Not every legislator got

what he or she wanted, but H.B. 1169 represents an appropriate resolution.2 The

2 See Leland Decl. Ex. 2 (Wilkie, NC House Passes Bipartisan Election Bill To Fund COVID-19 Response, Carolina Public Press (May 29, 2020) (quoting Democratic representative Allison Dahle: “[n]either party got everything they wanted,” but the “compromise bill” was “better for the people of North Carolina.”); Ex. 3 (Pulliman, NC Lawmakers to Discuss Bipartisan Bill on Absentee Voting this Week, 11 Eyewitness News (May 26, 2020) (quoting Democrat Pricey Harrison: it was “an inspiring experience to work across the aisle and across chambers to come up with a bill that’s common sense that also helps voters.”). 8

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process worked exactly as the United States and North Carolina Constitutions require. See id. at 546, 354 (under the North Carolina Constitution, an act of the

General Assembly is “an act of the people and is presumed valid unless it conflicts with the Constitution”) (emphasis and citation omitted). It is not for the judiciary to second guess those judgments. See Garcia v. San Antonio Metro. Transit Auth., 469

U.S. 528, 546 (1985) (“unelected federal judiciary” should not decide “which state policies it favors and which ones it dislikes”).

It is true, of course, that if the General Assembly intrudes upon the rights of citizens, the injured citizens often have recourse to the Courts. But, even then, the judiciary’s role is limited. E.g. Crawford v. Marion Cty. Election Bd., 553 U.S. 181,

203 (2008) (“[w]hen evaluating a neutral, nondiscriminatory regulation of voting procedure, ‘[w]e must keep in mind that ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”) (citations omitted). In this

case, Plaintiffs do not ask the Court to declare individual statutes unconstitutional.

They do not even claim the statutes were invalid before the recent pandemic or that

the General Assembly failed to respond expeditiously. Rather, they complain that

the General Assembly did not act in the manner the Plaintiffs believe most appropriate. As relief, they boldly demand that this Court impose a brand-new election scheme to their liking, discarding the public policy balance reached by the

General Assembly. It is no exaggeration that Plaintiffs are asking the Court to usurp

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the role vested by the Constitution in the legislature, to rewrite election laws of North

Carolina, and then to task itself with administering the implementation of this anti- democratic scheme.

As the United States Supreme Court admonished last week, however, “judges

[] possess no special expertise or authority to declare [] what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.”

Bostock v. Clayton Cty., Georgia, 2020 WL 3146686, at *17 (U.S. June 15, 2020).

To support their demands, Plaintiffs may point to broad judicial statements from unrelated contexts, or to relatively rare instances in which federal courts have modified or invalidated State election statutes. Almost all those decisions were based on alleged racial discrimination—which is not alleged here. And the

Republican Committees are aware of no decision in which a federal court expansively rewrote a State election statute within weeks of the statute’s passage, on the ground that the statute might be insufficient to solve the problem the General

Assembly explicitly addressed.3

3 Cf., Goldstein v. Sec’y of Commonwealth, 484 Mass. 516, 532 (2020) (due to legislature’s failure to act, ordering temporary reduction in signature requirements and extension of deadlines for candidate petitions). 10

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II. The Enactment of H.B. 1169 Moots a Significant Portion of Plaintiffs’ Claims.

Federal courts lack authority to rule on moot questions. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). This principle applies when a plaintiff challenges a law that is subsequently amended or repealed. See N.C.

Growers’ Ass’n, Inc. v. Solis, No. 1:09CV411, 2011 WL 4708026, at *2–4

(M.D.N.C. Oct. 4, 2011) (Osteen, Jr., J.) (implementation of new rule mooted challenge to previous rule), aff’d sub nom. N.C. Growers’ Ass’n, Inc. v. United Farm

Workers, 702 F.3d 755 (4th Cir. 2012).

The Supreme Court’s decision in Kremens v. Bartley, 431 U.S. 119 (1977), is illustrative. The district court found unconstitutional portions of a statute governing voluntary commitment to mental health institutions. Pennsylvania “enacted a new statute substantially altering its voluntary admission procedures” which “completely repeal[ed] the provisions” the district court found unconstitutional. Id. at 126.

Emphasizing that “[c]onstitutional adjudication [is] a matter of ‘great gravity and delicacy,’” id. at 127–28 (quoting Ashwander v. TVA, 297 U.S. 288, 345 (1936)

(Brandeis, J., concurring)), the Supreme Court held the new statute “eradicated” the plaintiffs’ challenges to the previous law, and “clearly moot[ed]” the plaintiffs’

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claims.4 Id. at 129. Here, H.B. 1169 renders most of Plaintiffs’ challenges to the state’s voting procedures moot. For those not expressly mooted, H.B. 1169 expresses a legislative judgment that Plaintiffs’ proposals are unsound.

A. Challenges to the Requirements for “Two Witnesses” and Absentee Ballot Procedures Are Moot.

Of all Plaintiffs’ original claims, the Two Witness requirement and the

inability to request absentee ballots by phone or online were at the forefront. For

instance, Plaintiff Clark alleges he is house-bound because he fears contracting

COVID-19 and already applied for his ballot. Second Am. Compl., Doc. 30 at ¶ 17.

He alleges his “wife could serve as one witness for his mail-in absentee ballot,” but

he could not safely obtain a second witness because of health risks and did “not

know how he can safely cast a ballot by mail.” Doc. 27-2 at ¶ 17. Similarly, Plaintiff

Cates alleges she never voted by mail but if she could submit an absentee ballot

request online or by phone, she would do so. Second Am. Compl., Doc. 30 at ¶ 18.

Cates has only one person to witness her ballot. Doc. 27-2 at ¶ 18. H.B. 1169’s

elimination of the Two Witness requirement and procedure for requesting absentee

4 See also, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (amendment mooted challenge to old law); Massachusetts v. Oakes, 491 U.S. 576, 578, 582–83 (1989) (amendment mooted First Amendment overbreadth challenge); U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556, 557–60 (1986) (amendment mooted challenge); Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (amendment to regulation mooted challenge to earlier regulation). 12

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ballots by phone or online gave these Plaintiffs the relief they seek. The same is true for other provisions of the election code challenged by Plaintiffs. Compare N.C.G.S.

§ 163-42(b) (requirement that a majority of poll workers reside in the precinct where they serve on election day), with H.B. 1169 Section 1.(b) (eliminating this requirement); compare Second Am. Compl. ¶ 104 (seeking procedure for curing defects in absentee ballots), with H.B. 1169 at Section 3.(a)(b)(9) (requiring a “bar code or other unique identifier” to allow county board of elections and voter to track ballot); compare Second Am. Compl. ¶¶ 103, 114 (seeking provision of PPE at voting sites and contactless drop boxes for absentee ballots), with H.B. 1169 Section

11.1.(a) (appropriating over $26 million to SBE “to prevent, prepare for, and respond to the coronavirus pandemic”); see also Second Am. Compl., Doc. 30 at ¶ 62

(alleging that under H.B. 1169 multipartisan teams may assist voters with completing and delivering an absentee ballot request, but speculating there may not be a sufficient number of team members).

A statutory change giving a party the “precise relief” requested moots claims for declaratory and injunctive relief. N.Y. State Rifle & Pistol Ass’n, Inc., 140 S. Ct. at 1526. Because H.B. 1169 provides Plaintiffs with many of the precise measures they seek, their claims are moot.

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B. Plaintiffs’ Procedural Due Process Claim is Moot.

Plaintiffs allege state law provides no remedy to “cure deficiencies” with

absentee ballot request forms and absentee ballots. But H.B. 1169 requires that a

“bar code or other unique identifier” accompany each absentee ballot return

envelope so the county board of elections and voter can track the ballot following

the return of the voted ballot to the county board. H.B. 1169 Section 3.(a)(9). The

new law ensures voters can track their absentee ballots and monitor them for voting

anomalies. H.B. 1169 also allows voters to request ballots online. If their

applications are deficient, the portal would likely not accept them, and Plaintiffs will

be able to correct the request before re-submitting. This process moots Plaintiffs’

procedural due process claim.

C. Plaintiffs’ Have No Voting Rights Act Claim.

Plaintiffs also allege violations of Section 208 of the Voting Rights Act of

1965, 52 U.S.C. § 10508 (“Section 208”), which requires that individuals with

blindness, disability, or inability to read or write be permitted to receive assistance

with voting. Because of H.B. 1169, that claim is moot, too.

Plaintiffs contend individuals covered by Section 208, including Plaintiff

Hutchins, require assistance submitting a request for, marking, completing, and

delivering an absentee ballot. See Pls’ PI Br., Doc. 10 at 71. H.B. 1169 specifically addresses Plaintiffs’ concerns. First, H.B. 1169 provides that individuals of a

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“multipartisan team” may assist a voter in completing a request for an absentee ballot or in delivering the completed request. H.B. 1169 § 1(c). Second, a member of a multipartisan team may assist with delivery of the completed absentee ballot. H.B.

1169 §2.(a). Third, DHHS and SBE will develop guidance to “safely allow multipartisan teams to assist registered voters within hospitals, clinics, nursing homes, assisted living or other congregate living situations” in the 2020 election.

H.B. 1169 § 2.(b). Finally, N.C.G.S. § 163-231 provides that, in addition to completing the ballot herself or himself, a voter may “cause [an absentee ballot] to be marked . . . in the voter’s presence according to the voter’s instruction.”

In these ways, H.B. 1169 addresses Plaintiffs’ concerns, and thus moots their

claims. See Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006).

III. Plaintiffs Are Unlikely To Succeed on the Merits of Claims Involving North Carolina’s Administration of Voting.

A. North Carolina’s Voting Laws Do Not Unduly Burden the Right to Vote.

The Second Amended Complaint asserts violations of the First and Fourteenth

Amendments based on the following provisions: (1) the requirement that voters register to vote at least 25 days before the election; and (2) the regulation allowing only a voter’s near relative, verifiable legal guardian, or multipartisan team member to help complete and deliver an absentee ballot. See Second Am. Compl., Doc. 30 at ¶¶ 88–115. Plaintiffs also challenge the General Assembly’s failure to adopt

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contactless dropboxes for voting and a “fail-safe” option for mail-in absentee voters if state election officials cannot successfully deliver mail-in ballots on time. E.g.,

Pls’ PI Br., Doc. 10 at 17, 21–22, 36–47.

Plaintiffs’ claims fail because North Carolina’s voting regulations meet the

Anderson-Burdick test. The burden to the Plaintiffs from the regulations, if any, is minimal, they are applied neutrally, and they concern legitimate state interests, including protecting the integrity and reliability of the electoral process. See, e.g.,

Crawford, 553 U.S. at 191–96 (recognizing states’ legitimate interests in protecting the integrity and reliability of the electoral process in the context of an Equal

Protection challenge to a voter identification requirement).

First, it is not unduly burdensome to voters—and is indeed common—to require registration by mail, through state agencies, or online through the

Department of Motor Vehicles at least 25 days before an election. At least 13 other states impose registration cutoffs of at least 25 days before an election. Leland Decl.

Ex. 4 (Voter Registration Deadlines).5 North Carolina has “valid and sufficient

interests” in imposing registration deadlines so that it can prepare adequate voter

records and protect its electoral processes from fraud. See Key v. Bd. of Voter

5 State cutoffs range from 25 days (e.g., New York) to 30 days (e.g., Tennessee). 16

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Registration of Charleston Cty., 622 F.2d 88, 90 (4th Cir. 1980) (South Carolina’s

30-day pre-registration requirement did not violate constitutional right).

Second, there is, at most, a minimal burden when allowing only a voter’s near relative, a verifiable legal guardian, or a multipartisan assistance team member to help complete and deliver an absentee ballot. See H.B. 1196, Sections 1.(c), 2.(a).

And to address the needs of voters who are more vulnerable, H.B. 1169 requires the

DHHS and the SBE to develop guidance on how the multipartisan teams can help

people in “congregate living situations,” such as nursing homes, to vote in the 2020

election. H.B. 1169, Section 2.(b).

Third, North Carolina has a valid interest in preventing voter fraud. Lee, 843

F.3d at 606 (finding that a voter identification requirement did not unduly burden

the right to vote and that Virginia had a valid interest in preventing voter fraud which

justified any burden imposed by the law). Indeed, measures limiting who may

collect absentee ballots are widely recognized as appropriate and necessary. The bi-

partisan commission led by former President Jimmy Carter and former Secretary of

State James Baker explicitly recommended laws restricting ballot collection by

candidates or party workers. See Leland Decl. Ex. 5 (Commission on Federal

Election Reform, Building Confidence in U.S. Elections, § 5.2.1 (Sept. 2005) (“the

Carter–Baker Report”).

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Finally, Plaintiffs’ demand for contactless dropboxes and federal write-in ballots or other “fail-safe” options for mail-in absentee voters who do not receive their mail-in ballots on time also fails. E.g., Pls’ PI Br., Doc. 10 at 17, 21–22, 36–

47. To begin, the time period within which to request absentee ballots—by 5 p.m. on the Tuesday before the date of the election—is entirely sufficient. And, with over four months before the November election, Plaintiffs have specified no reason why they cannot request their absentee ballots sufficiently in advance to avoid delivery issues. Indeed, Plaintiff Clark has already done so. Further, H.B. 1169 provides options (phone, email, and fax) for requesting mail-in ballots that will expedite the time between request and delivery. And finally, if a voter does not receive the requested ballot in time, the voter always has the option to vote in person.

To the degree the Court has any remaining doubts about the fairness of the ballot delivery process, it can stay this aspect of the case to see how State election officials address it. H.B. 1169 provides funds to address COVID-19, and North

Carolina has the discretion to allocate the funds for preventative measures. H.B.

1169, Section 11.1.(a) (appropriating over $26 million to the SBE to “to prevent, prepare for, and respond to the coronavirus pandemic during the 2020 federal election cycle”); Bostock, 2020 WL 3146686, at *17 (noting that “judicial humility” requires courts to “refrain from adding to statutes”). In any event, Plaintiffs have not made the case for a mandatory preliminary injunction.

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B. The North Carolina Absentee Voting Laws Do Not Implicate Plaintiffs’ First Amendment Rights.

The organizational Plaintiffs and Plaintiff Schaffer are also unlikely to prevail

on their First Amendment claims. Plaintiffs allege that SB 683 violates their First

Amendment rights to free speech and association by impeding their ability to assist

voters with absentee ballot request forms. See Pls’ PI Br., Doc. 10 at 55. For the

2020 election, the absentee ballot laws provide that absentee ballot request forms

may be delivered by (1) the voter, (2) the voter’s near relative or verifiable legal

guardian, or (3) a member of a multipartisan team trained and authorized by the

county board of elections pursuant to N.C.G.S. 163-226.3. See H.B. 1169; N.C.G.S.

§ 163-230.2. The absentee ballot laws also allow a voter’s near relative, legal

guardian, or individual working as part of a multipartisan team pursuant to G.S. 163-

226.3, to assist a voter in preparing a request for an absentee ballot. H.B. 1169;

N.C.G.S. § 163-226.3.

The First Amendment forbids only the abridgment of “speech,” and conduct

“sufficiently imbued with elements of communication.” Texas v. Johnson, 491 U.S.

397, 404 (1989); see also ex Rumsfeld v. Forum for Acad. & Institutional Rights,

Inc., 547 U.S. 47, 66 (2006) (citing Texas v. Johnson and noting that the Court has

“extended First Amendment protection only to conduct that is inherently expressive”). If an election law implicates these interests, then the Court must apply the Anderson-Burdick test. See Voting for America v. Steen, 732 F.3d 382, 393 (5th

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Cir. 2013) (Anderson-Burdick balancing test applies if the challenged law implicates

First Amendment interests).

Plaintiffs’ claims fail because the absentee ballot laws do not implicate First

Amendment rights. Courts have held that submitting completed voter registration forms or completed ballots on behalf of another person is not “speech” or

“sufficiently imbued with elements of communication” to qualify for First

Amendment freedom of speech protection. Id. at 392 (“[T]here is nothing

‘inherently expressive’ about receiving a person’s completed application and being charged with getting that application to the proper place.”) (citation and quotation marks omitted); League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298,

1319 (S.D. Fla. 2008) (same); Knox v. Brnovich, 907 F.3d 1167 (9th Cir. 2018)

(same). The acts of completing an absentee ballot on behalf of another voter

(pursuant to that voter’s desires) and submitting the ballot requests are not materially different from the acts of submitting completed voter registration forms or completed ballots. As the Fifth Circuit concluded in rejecting an analogous claim,

“if actually registering citizens to vote is necessary to ‘express’ the canvasser’s belief in the importance of voting, then [plaintiffs] essentially seek a ‘First Amendment right not just to speak out or engage in ‘expressive conduct’ but also to succeed in their ultimate goal regardless of any other considerations.’” Steen, 732 F.3d at 391.

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“[O]nly the voter decides to ‘speak’ by registering,” or, in this case, submitting a request for an absentee ballot. Id. at 390.

Even if the North Carolina absentee ballot laws did implicate Plaintiffs’ First

Amendment interests, the laws pass the Anderson-Burdick balancing test. See Steen,

732 F.3d at 391 (laws limiting who can handle a completed voter register application pass the Anderson-Burdick balancing test). As the Supreme Court held in Crawford, states have legitimate interests in enacting measures to prevent fraud. 553 U.S. at

194–95 (upholding voter identification requirement against an Equal Protection challenge). Indeed, measures limiting who may collect absentee ballots are widely recognized as appropriate and necessary to prevent fraud, as evidenced by the conclusions of the Carter-Baker commission on election reform, which recommended states enact similar laws to prevent persons, such as employees of the organizational plaintiffs, from handling ballots. See Leland Decl. Ex. 5 (Carter–

Baker Report, § 5.2.1).

By contrast, any burden to Plaintiffs is minimal. The organizational Plaintiffs and Plaintiff Schafer remain free to encourage voters to request an absentee ballot and to instruct them how to properly complete the necessary application. And

Plaintiffs may also be eligible to become part of the “multipartisan team” that may assist voters with completing absentee ballot requests. See H.B. 1169.

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C. The Voting Laws Do Not Violate the ADA or Rehabilitation Act.

Plaintiffs argue that North Carolina’s witness requirement and restrictions on assistance in completing absentee ballot request forms and ballots violate the ADA and Rehabilitation Act because they fail to accommodate Plaintiffs’ disabilities. Pls’

PI Br., Doc. 10 at 62–63, 68.

1. North Carolina Adopted Reasonable Accommodations for Voters under the ADA and Rehabilitation Act.

To prevail on their failure-to-accommodate claims, Plaintiffs must prove they

(1) have a disability; (2) are qualified to receive benefits of a public service, program, or activity; and (3) are being denied those benefits or otherwise discriminated against because of their disabilities. Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494, 502–

03 (4th Cir. 2016). Plaintiffs cannot satisfy the third requirement, and, in turn, are not entitled to a preliminary injunction.

To show discrimination, Plaintiffs bear the burden of demonstrating that

North Carolina has “fail[ed] to make reasonable modifications in policies, practices, or procedures” that implicate Plaintiffs’ absentee voting rights, “when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” J. D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 671 (4th Cir. 2019) (quoting 42

U.S.C. § 12182(b)(2)(A)(ii)). The statute therefore requires Plaintiffs to show

Defendants failed to make accommodations that are both necessary and reasonable 22

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in light of Plaintiffs’ alleged disabilities. See PGA Tour, Inc. v. Martin, 532 U.S.

661, 683 n.38 (2001). Neither requirement is satisfied here.

First, H.B. 1169 resolves Plaintiffs’ concerns about absentee voting. Section

1.(a) reduces the witness requirement for absentee ballots, reconciling Plaintiffs’ limited “ability to have contact with others during this pandemic,” Pls’ PI Br., Doc.

10 at 63, with the public’s right to have confidence in the integrity of the election results. See Lee, 843 F.3d at 606. Furthermore, H.B. 1169 accommodates nursing

home residents by requiring DHHS and SBE to “develop guidance to safely allow

multipartisan teams to assist registered voters” within nursing homes and assisted

living or other congregate living situations. H.B. 1169 § 2.(b).

Plaintiffs claim the recent legislation is “inadequate” because more could be

done to address their concerns, Second Am. Compl., Doc. 30 at ¶ 7, but this argument

falls far short of establishing that Plaintiffs’ proposed modifications are “necessary.”

Under the ADA and RA, it is not a requirement to “eliminate all discomfort or

difficulty.” A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900

F.3d 1270, 1296 (11th Cir. 2018). Rather, “[f]acilities need make only reasonable

accommodations that are ‘necessary.’” Id. When determining the necessity of a

proposed accommodation, the Fourth Circuit “requires an individualized inquiry

into the plaintiff’s capacity.” J.D. by Doherty, 925 F.3d at 673. Under that approach,

when a defendant has already implemented disability accommodations, “a plaintiff

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may still be entitled to something more if he can show that the accommodation does not account sufficiently for his disability.” Id.

Plaintiffs cannot make this showing. North Carolina reduced the two-witness requirement and will provide specialized assistance for vulnerable registered voters who wish to submit absentee ballots. See H.B. 1169 §§ 1.(a), 2.(b). Further accommodations are warranted only if absentee voting remains “beyond the capacity of plaintiffs,” a standard Plaintiffs cannot satisfy because H.B. 1169 provides for absentee voting assistance for registered voters within nursing homes and other congregate living facilities and reduces the witness requirement sufficiently to account for Plaintiffs’ desire to limit social interaction. See id. (citing Argenyi v.

Creighton Univ., 703 F.3d 441, 450 (8th Cir. 2013); A.L. by and through D.L. v.

Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1296 (11th Cir. 2018)).

Second, Plaintiffs cannot show their proposed changes to the law are

“reasonable” under the ADA or RA. The ADA requires “reasonable” accommodations for disabilities, a standard satisfied only if the Plaintiffs’ proposed modification is “reasonable on its face, i.e., ordinarily or in the run of cases.” J.D. by Doherty, 925 F.3d at 673. But the North Carolina General Assembly already implemented several measures to address Plaintiffs’ safety concerns, so there is “no need for injunctive relief” when plaintiffs are “already being reasonably accommodated.” Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003).

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And, as shown (p. 16 above), North Carolina’s approach is in line with many other states.

Even if Plaintiffs showed their proposed accommodations were prima facie reasonable, those modifications would “fundamentally alter” the nature of North

Carolina’s elections because they would eliminate the administration and enforcement of the witness requirement and restrictions on those who can provide absentee ballot assistance. See 28 C.F.R. § 35.130 (requiring public entities to make

“reasonable” modifications “necessary to avoid discrimination on the basis of

disability, unless the entity can demonstrate that making such modifications would

fundamentally alter the nature of the service, program, or activity.” (emphasis

added)). States have “valid interests in preventing voter fraud,” along with “an

independent interest in protecting voter confidence in the integrity of [their]

elections.” Lee, 843 F.3d at 607 (citing Crawford v. Marion Cty. Election Bd., 553

U.S. 181, 194-97 (2008)). The witness requirement and ballot assistance restrictions

are measures approved by the General Assembly to preserve the integrity of North

Carolina’s elections.

2. North Carolina’s Voting Laws Do Not Have a Disparate Impact on Disabled Voters.

Plaintiffs have not provided evidence showing the challenged voting laws

disproportionately burden disabled voters, and their disparate impact claims fail for

that reason. Establishing a prima facie ADA or RA violation under a disparate 25

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impact theory requires a plaintiff to “demonstrate (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016)

(internal quotation marks omitted). Plaintiffs failed to identify any evidence that the witness requirement or ballot assistance restrictions have a “significantly adverse or

disproportionate impact” on disabled voters, much less the statistical evidence courts

routinely expect. See Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 575–

76 (2d Cir. 2003). Instead, Plaintiffs assert that “Defendants’ policies have a

disparate impact on vulnerable voters like the ADA/RA Plaintiffs”—a paradigmatic

example of the kind of “inference of discriminatory impact” that other circuits have

rejected. See id. at 575; Gamble v. City of Escondido, 104 F.3d 300, 306 (9th Cir.

1997). The same result is appropriate here.

IV. A Stay is Appropriate to Assess the State’s Election Reforms.

Plaintiffs have not cleared the high bar for entry of a preliminary injunction,

and Amici urge the Court to deny any relief. In the alternative, if the Court has

doubts about the sufficiency of the new procedures, Amici urge the Court to stay the

action until the Board and HHS fulfill their legislative obligation to “develop

guidance to safely allow multipartisan teams to assist registered voters within

hospitals, clinics, nursing homes, assisted living or other congregate living situations

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in the 2020 elections during the COVID-19 pandemic in accordance with law” by

August 1, 2020. H.B. 1169 § 2.(b). As it stands, Plaintiffs’ Motion assumes that

North Carolina will not take appropriate action to modify its election procedures to account for the pandemic. H.B. 1169 has already proven that assumption false.

Before the Court takes the extraordinary step of imposing new requirements on the

State, the public interest supports a stay of this litigation pending additional guidance from the Board and HHS.

CONCLUSION

For the foregoing reasons, Amici respectfully request that this Court deny

Plaintiffs’ motion or, alternatively, stay this case until further action from the Board

and HHS.

Respectfully submitted this 26th day of June, 2020.

Respectfully submitted,

/s/ Bobby R. Burchfield Bobby R. Burchfield Matthew M. Leland King & Spalding LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 Email: [email protected] Email: [email protected]

R. Scott Tobin

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 34 of 38

North Carolina Bar No. 34317 Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: [email protected]

Counsel for the Republican Committees

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 35 of 38

STATEMENT PURSUANT TO L.R. 7.5(d)

Amici represent that (1) no party’s counsel authored the brief in whole or in part, (2) no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief, and (3) no person—other than amicus, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief.

This the 26th day of June, 2020.

/s/ Bobby R. Burchfield Bobby R. Burchfield

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 36 of 38

CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for this Amici Curiae Brief is 6242 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of Microsoft Word, which was used to prepare the brief.

/s/ Bobby Burchfield Bobby Burchfield

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 37 of 38

CERTIFICATE OF SERVICE

I hereby certify that on this date, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which automatically sends e-mail notification of such filing to any attorneys of record.

This 26th day of June, 2020.

/s/ Bobby Burchfield Bobby Burchfield

Case 1:20-cv-00457-WO-JLW Document 52-3 Filed 06/26/20 Page 38 of 38 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THE NORTH CAROLINA STATE BOARD OF ELECTIONS; DAMON CIRCOSTA, in his official capacity as CHAIR OF THE STATE BOARD OF ELECTIONS; STELLA ANDERSON, in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS; KEN RAYMOND, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; JEFF CARMON III, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; DAVID C. BLACK, in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; KAREN BRINSON BELL, in her official capacity as EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS; THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. ERIC BOYETTE, in his official capacity as TRANSPORTATION SECRETARY; THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants,

and

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 1 of 50

Intervenors.

DECLARATION OF MATTHEW M. LELAND

I, Matthew M. Leland, state the following based on my personal knowledge:

1. I am over 18 years of age and competent to make this Declaration.

2. I am counsel for amici curiae Republican Committees in the above-captioned case.

3. I have reviewed the Exhibits in support of the Brief of Amici Curiae Republican

Committees.

4. Exhibit 1 is a true and correct copy of the North Carolina General Assembly voting

record for HB 1169 (2019-20), which is available at

https://www.ncleg.gov/BillLookUp/2019/H1169.

5. Exhibit 2 is a true and correct copy of the following article: Jordan Wilkie, NC

House Passes Bipartisan Election Bill To Fund COVID-19 Response, Carolina Public Press (May

29, 2020), which is available at https://carolinapublicpress.org/30559/nc-house-passes-bipartisan- election-bill-to-fund-covid-19-response/.

6. Exhibit 3 is a true and correct copy of the following article: Tim Pulliman, NC

Lawmakers to Discuss Bipartisan Bill on Absentee Voting this Week, 11 Eyewitness News (May

26, 2020), which is available at https://abc11.com/hb1169-absentee-voting-state-elections-covid-

19-response/6213140/.

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 2 of 50 7. Exhibit 4 is a true and correct copy of the following webpage: Voter Registration

Deadlines (last accessed June 22, 2020), which is available at https://www.vote.org/voter- registration-deadlines/.

8. Exhibit 5 is a true and correct copy of excerpts of the report by the Commission on

Federal Election Reform: Building Confidence in U.S. Elections (Sept. 2005), which is available at http://www.lb7.uscourts. Gov/documents/15-324URL1savedon08-04-2016.pdf

I declare under penalty of perjury that the foregoing is true and correct.

/s/ Matthew M. Leland Matthew M. Leland

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 3 of 50 Exhibit 1

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 4 of 50 6/25/2020 House Bill 1169 / SL 2020-17 (2019-2020 Session) - North Carolina General Assembly

 H1168 House Bill 1169 / SL 2020-17 H1170  Bipartisan Elections Act of 2020. 2019-2020 Session

VIEW BILL DIGEST Last Action: Ch. SL 2020-17 on 6/12/2020

VIEW AVAILABLE BILL SUMMARIES Sponsors: Grange; Dahle; D. Hall; Harrison (Primary) EDITION FISCAL NOTE Autry; Ball; Batch; Brewer; Carney; Clark; Clemmons; Dixon; Dobson; Fisher; Fraley; Gailliard; Harris; Humphrey; Hunt; Insko; Jackson; John; P. Jones; Filed Lambeth; Lewis; Lofton; Logan; Majeed; Martin; McElraft; Meyer; Pierce; Edition 1 Reives; Russell; K. Smith; Stevens; Szoka; B. Turner; von Haefen; White; Edition 2 Zachary

Edition 3 Attributes: Public; Contains Appropriations; Contains Local Appropriations; Text has Edition 4 changed

Edition 5 Counties: No counties specically cited Edition 6 Statutes: 163, 20 (Chapters); 143C-1-2, 163-132.5G, 163-166.11, 163-166.16, 163- Ratied 182.2, 163-226.3, 163-229, 163-230.1, 163-230.2, 163-230.3, 163-231, SL 2020-17 163-237, 163-27.1, 163-41, 163-42, 20-37.7 (Sections) Keywords: APPROPRIATIONS, BOARDS, BUDGETING, COUNTIES, DHHS, DISASTERS & EMERGENCIES, DISEASES & HEALTH DISORDERS, ELECTIONS, ELECTIONS BOARDS, ELECTIONS, STATE BOARD OF, ID SYSTEMS, INFORMATION TECHNOLOGY, INTERNET, LOCAL GOVERNMENT, POLITICAL PARTIES, PRESENTED, PUBLIC, PUBLIC HEALTH, PUBLIC OFFICIALS, RATIFIED, REPORTS, SESSION LAWS,

LATEST 2 VOTES

DATE SUBJECT RCS# AYE NO N/V EXC.ABS. EXC.VOTE TOTAL RESULT 6/11/2020 2:49 p.m. M11 Concur [H]-959 105 14 0 1 0 119 PASS 6/11/2020 12:29 p.m. Third Reading [S]-727 37 12 0 1 0 49 PASS

 HISTORY

DATE  CHAMBER ACTION DOCUMENTS VOTES 6/12/2020 Ch. SL 2020-17 6/12/2020 Signed by Gov. 6/12/2020 6/11/2020 Pres. To Gov. 6/11/2020 6/11/2020 Ratied 6/11/2020 House Ordered Enrolled 6/11/2020 House Concurred In S Com Sub PASS: 105-14 6/11/2020 House Added to Calendar 6/11/2020 House Cal Pursuant 36(b) 6/11/2020 House Special Message Received For Concurrence in S Com Sub 6/11/2020 Senate Special Message Sent To House 6/11/2020 Senate Passed 3rd Reading PASS: 37-12 6/11/2020 Senate Amend Tabled A6 A6: ABK-69-V-4 PASS: 29-20 6/10/2020 Senate Passed 2nd Reading PASS: 35-12 6/10/2020 Senate Amendment Withdrawn A5 A5: Scanned Document 6/10/2020 Senate Amend Tabled A4 A4: Scanned Document PASS: 27-21 6/10/2020 Senate Amend Tabled A3 A3: ABK-67-V-6 PASS: 27-21 6/10/2020 Senate Amend Tabled A2 A2: Scanned Document PASS: 27-21 6/10/2020 Senate Amend Tabled A1 A1: ALU-56-V-4 PASS: 27-21 6/9/2020 Senate Reptd Fav 6/9/2020 Senate Re-ref Com On Rules and Operations of the Senate 6/9/2020 Senate Com Substitute Adopted 6/9/2020 Senate Reptd Fav Com Substitute CS: PCS10849-ML-23 6/2/2020 Senate Re-ref Com On Appropriations/Base Budget

https://www.ncleg.gov/BillLookUp/2019/H1169 1/2 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 5 of 50 6/25/2020 House Bill 1169 / SL 2020-17 (2019-2020 Session) - North Carolina General Assembly

6/2/2020 Senate Com Substitute Adopted 6/2/2020 Senate Reptd Fav Com Substitute CS: PCS30592-BVa-1 6/1/2020 Senate Re-ref to Redistricting and Elections. If fav, re-ref to Appropriations/Base Budget. If fav, re-ref to Rules and Operations of the Senate 6/1/2020 Senate Withdrawn From Com 5/28/2020 Senate Ref To Com On Rules and Operations of the Senate 5/28/2020 Senate Passed 1st Reading 5/28/2020 Senate Special Message Received From House 5/28/2020 House Special Message Sent To Senate 5/28/2020 House Ordered Engrossed 5/28/2020 House Passed 3rd Reading 5/28/2020 House Passed 2nd Reading PASS: 116-3 5/28/2020 House Amend Adopted A1 A1: Scanned Document 5/27/2020 House Placed On Cal For 05/28/2020 5/27/2020 House Cal Pursuant Rule 36(b) 5/27/2020 House Reptd Fav Com Sub 2 CS: PCS10834-ST-75 5/27/2020 House Re-ref Com On Rules, Calendar, and Operations of the House 5/27/2020 House Reptd Fav Com Substitute CS: PCS30587-ST-74 5/22/2020 House Ref to the Com on Elections and Ethics Law, if favorable, Rules, Calendar, and Operations of the House 5/22/2020 House Passed 1st Reading 5/22/2020 House Filed DRAFT: DRH20008-BKa-24A

https://www.ncleg.gov/BillLookUp/2019/H1169 2/2 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 6 of 50 Exhibit 2

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 7 of 50 NC House passes bipartisan election bill to fund COVID-19 response

carolinapublicpress.org/30559/nc-house-passes-bipartisan-election-bill-to-fund-covid-19-response

Jordan Wilkie May 29, 2020

Every booth is occupied with 2020 primary election voters just before 7 a.m. March 3 at the American Legion 7 polling place in Durham County. That situation would be problematic with the ongoing pandemic, and adjustments to avoid crowding and answer the demand for more absentee ballots will require expenditures in each North Carolina county. A bipartisan election bill to address that passed the N.C. House on Thursday and will be taken up by the state Senate. Jake Axelbank / Carolina Public Press

The outbreak of COVID-19 is making it more difficult and more expensive to run elections.

In March, state elections officials asked the General Assembly for relief, both in the form of funding and some tweaked laws to make running elections during the pandemic easier.

The N.C. House passed a bipartisan election bill Thursday afternoon that would provide the state with money needed to access much larger federal funds. The bill would also change state law to both make it easier to vote by mail and for election officials to staff

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 8 of 50 their polling places.

[The latest: North Carolina coronavirus daily updates]

However, the bill does not provide the full scope of relief sought by the state Board of Elections, county elections directors or democracy watchers.

“Neither party got everything they wanted,” said Rep. Allison Dahle, D-Wake, who was one of the bill’s sponsors.

“We worked together to find solutions that both sides of the aisle were comfortable with. Is it perfect? No. Is it what we dreamed of? No. Is it better for the people of North Carolina? Yes.”

Get independent, in-depth and investigative journalism in your inbox

House Bill 1169 passed with an overwhelming majority, 116-3, even as some Democrats grumbled that it did not make voting by mail easy enough and that the bill included unnecessary provisions. The bill will now be sent to the state Senate, where it is expected to be taken up quickly.

In an April 22 letter to the General Assembly, state Board of Elections Executive Director Karen Brinson Bell said elections officials needed the money by June 15 at the latest to make all the necessary purchases for the November election, not to mention the second primary election in June. The second primary affects the southwestern part of the state in Congressional District 11, plus a local election in Columbus County. She asked the legislature to act during the special session that began April 28.

Dahle said lawmakers have been working on this bill for a month and a half. To speed up the process, she said, if there were any requests that members of the House or Senate were not comfortable with, they just took that piece out.

The state really needed the federal money, Dahle said. To get those funds, a combined $22.7 million from the Help America Vote Act and the CARES Act, the state needs to provide almost $4.5 million in matching funds.

The money will be used to make security improvements for the election and to cover COVID-19-related costs, such as printing and postage for a predicted spike in by-mail ballot demand and personal protective equipment at the polls.

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 9 of 50 An investigation by the NC Watchdog Reporting Network, of which CPP is a member, shows that counties would be unlikely to afford the changes to elections brought on by COVID-19 without this additional support.

A compromise of 120 lawmakers

When sponsors of this bill, Reps. Holly Grange, R-New Hanover, and Dahle, spoke about the bill, they stressed its bipartisan nature.

“This is a compromise bill of 100, really 120 people,” Dahl said. “Even though there were only four (sponsors), we still had our caucuses that we talked to and went back and forth with.”

Beyond the state’s partial match required to access federal funding, the election bill would make several temporary changes that would expire at the end of the year and a few permanent changes.

The House bill would temporarily lower the witness requirement on absentee by-mail ballots from two adult witnesses to one. Since the majority of households in North Carolina have fewer than three adults — one to vote, two to witness — the current requirement was seen as a burden during a pandemic.

At the same time, the bill would make it easier for voters to request absentee by-mail ballots. If this bill is passed by the Senate and signed into law, ballot requests could be submitted by email or fax, in addition to by mail or in person. The state has allocated $424,000 for the state to create an online portal for absentee ballot requests.

Under the bill, voters would also be able to track their ballots by way of a bar code or unique identifier associated with the ballot, both when their county’s board of elections mails it out and when they mail ballots back.

County boards of elections would have increased flexibility in hiring poll workers. Until the end of the year, only one poll worker per precinct would need to be from that precinct, while others could be recruited from across the county.

Since poll workers in North Carolina are, on average, over 65 years old and are therefore more vulnerable to serious illness or death if they contract COVID-19, counties are expecting to struggle to retain and recruit poll workers.

The bill also clarifies how multipartisan assistance teams operate during a pandemic. These teams usually assist voters in residential care homes, but there is currently an executive order banning visitors to these centers to limit the spread of COVID-19 to vulnerable populations. Under the bill, the state Board of Elections would work with the

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 10 of 50 Department of Health and Human Services to create a plan whereby the teams can work safely “within hospitals, clinics, nursing homes, assisted living or other congregate living situations.”

Requests that didn’t make the election bill

In a March 26 letter, Brinson Bell gave the General Assembly a list of requests to help run the June second primary in Western North Carolina and the November elections during a pandemic.

The election bill failed to adopt a few of the requests, such as paying for return postage for absentee ballots.

Both Democratic sponsors of the bill, Dahle and Rep. Pricey Harrison, D-Guilford, said they requested this, but Republicans in both the House and Senate balked at the cost.

By turning Election Day into a state holiday, state and county employees could work the polls, Brinson Bell said in her letter. That request was not taken up, nor was increased pay for poll workers or changes to one-stop voting site and hours requirements.

Rep. Marcia Morey, D-Durham, introduced another bill with the Democrats’ wish list of changes for the November election.

One item on her wish list was to expand curbside voting, whereby voters can remain in their cars at a polling place and a poll worker will deliver, retrieve and submit the ballot for them.

The idea is that voters concerned about contracting COVID-19 at a polling place could vote from their cars, as people with physical limitations are currently able to do.

“We encourage anyone concerned about contracting coronavirus to vote by mail in 2020,” said Pat Gannon, spokesperson for the state Board of Elections, in an email, in which he also described several measures, such as social distancing and providing masks, that will be used in precincts to keep voters healthy.

Pro-democracy advocacy groups had other requests to make the voting process run smoothly that were not picked up in the legislation.

Voter registration has dipped significantly, Democracy NC’s executive director, Tomas Lopez, said. He would have liked to see an extension in the deadline for voter registrations.

Voters also frequently and unknowingly make mistakes on the ballot envelopes, forcing boards of elections to discard those ballots, he said.

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 11 of 50 “There’s not a process right now for people to cure absentee ballots that have issues,” Lopez said.

That means that, as in previous elections, a substantial percentage of voters who vote by mail would have their ballots rejected and potentially not know it until after the election. In a year when the state Board of Elections projects that vote-by-mail ballots could balloon from 5% of voters to 40%, that could result in the state not counting of thousands of ballots.

Other bills can be passed that could address some of these concerns, though time is running short for the state and county boards of elections to put more changes into place before the November election.

Election bill tries to solve problems that don’t exist

Some measures of the election bill solve problems that do not exist and were not expected to manifest.

For example, the bill would prohibit North Carolina from moving to an all vote-by-mail election in November.

At the beginning of the COVID-19 outbreak in North Carolina, the legislature received requests from mostly Democratic voters and some advocates to move the election to all vote by mail, according to Dahle.

This was never a feasible option for the state, and the state Board of Elections never considered requesting that move.

Brinson Bell stated during the March 20 board meeting that the state’s “response to coronavirus for the November general election must not upend the system we have in place but rather be an all-out effort to reinforce, strengthen and improve voting as we know it in North Carolina.”

The bill also has a provision requiring photo ID in the November 2020 election. But the issue of photo ID is already tied up in the courts, with multiple court injunctions currently preventing North Carolina from forcing voters to provide photo ID in order to vote.

This added provision does not negate the court injunctions. Even if the courts unexpectedly overturned those rulings in time for photo ID to be required for November, it would be very difficult for county elections offices to prepare for that change in time. This bill, though, would add to the ID options allowed to voters.

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 12 of 50 Finally, the bill made it a felony for an employee of a county board of elections to send an absentee ballot to a voter who had not requested one. Under current elections law, voters already need to request an absentee ballot, either to vote early or vote by mail.

The state Board of Elections and the legislature received a glut of emails propagating conspiracy theories that Brinson Bell, the Democratic-appointed head of elections in the state, could use emergency powers to send ballots to all voters. This, as well, was never proposed.

Republican legislators felt strongly that each of these provisions should be included in this bill.

Comments

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 13 of 50 Exhibit 3

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 14 of 50 NC lawmakers to discuss bipartisan bill on absentee voting this week

abc11.com/hb1169-absentee-voting-state-elections-covid-19-response/6213140

May 26, 2020

Politics By Tim Pulliam Tuesday, May 26, 2020

RALEIGH, N.C. (WTVD) -- House Republicans and Democrats hope to help the state elections board prepare for an increase in absentee voting.

Elections officials say typically 4 to 5 percent of voters mail in their ballots.

But this fall, they project 30 to 40 percent of voters could vote by mail.

House Bill 1169 could update that process.

Voters would be able to request an absentee ballot through email, fax, or online.

One person could verify your absentee ballot vs. the previous requirement of two witnesses.

Election leaders said that with the majority of poll workers being older than 65, this bill will provide more flexibility in recruiting precinct officials.

The bill would also provide more funding to help make in-person voting safer and offset any extra costs.

"I'm really excited about it," State Rep. Pricey Harrison, a Democrat from Guilford County and co-sponsor of the bill, told ABC11. "I think if other states could follow our lead this wouldn't be a debate. This is all about making sure people have access to their right to vote and don't risk their health. It's been an inspiring experience to work across the aisle and across the chambers to come up with a bill that's common sense that also helps voters."

HB 1169 would also prevent the state board of elections from moving toward an all-by-mail election day and prevent sending unrequested ballots to your address.

But some advocates said the bill should go further to reduce limitations on voting.

On Wednesday, 30 civil and social justice groups will host a virtual rally called "ProtectOurVoteNC."

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 15 of 50 They are asking lawmakers to consider making election day a holiday, expand curbside voting, and ensure the postage for mail-in ballots is prepaid.

"Our votes matter, our lives matter," said Anthony Spearman, president of the North Carolina chapter of the NAACP.

HB 1169 is expected to be voted on this Thursday.

The Senate is working on a similar bill. Report a correction or typo Related topics: politicsraleighncvotingstate politicsgeneral assemblycoronaviruselectioncovid 19 pandemic Copyright © 2020 WTVD-TV. All Rights Reserved.

From CNN Newsource affiliates

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Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 16 of 50 Exhibit 4

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 17 of 50 6/25/2020 Voter Registration Deadlines - Vote.org

Vote.org (/) DONATE (/DONATE/) MENU

Voter Registration Deadlines

It's best to double check with your state for any recent changes to election rules in your state.

COVID-19 Info: This information may have have changed in your state’s next election, check the COVID-19 page (/covid-19/) for info.

Select your state:

Alabama (/state/alabama)

Voter Registration Deadlines

In Person: 15 days before Election Day. By Mail: Postmarked 15 days before Election Day. Online: 15 days before Election Day.

Election Day Registration Instructions

N/A

Alaska (/state/alaska) https://www.vote.org/voter-registration-deadlines/ 1/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 18 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Voter Registration Deadlines

In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. If this falls on a Sunday, postmarked 31 days before Election Day. Online: 30 days before Election Day.

Election Day Registration Instructions

N/A

Arizona (/state/arizona)

Voter Registration Deadlines

In Person: 29 days before Election Day, or on the next immediate business day if the deadline falls on a legal holiday or weekend. By Mail: Postmarked 29 days before Election Day, or on the next immediate business day if the deadline falls on a legal holiday or weekend. Online: 29 days before Election Day.

Election Day Registration Instructions

N/A

Arkansas (/state/arkansas)

Voter Registration Deadlines

In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. If this falls on a Sunday, postmarked 29 days before Election Day. https://www.vote.org/voter-registration-deadlines/ 2/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 19 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Online: N/A

Election Day Registration Instructions

N/A

California (/state/california)

Voter Registration Deadlines

In Person: 15 days before Election Day. By Mail: Postmarked 15 days before Election Day. Online: 15 days before Election Day.

Election Day Registration Instructions

If the voter registration deadline has passed, you can still conditionally register to vote and cast a provisional ballot in person at your County Elections Office at any time up to and including Election Day. Your provisional ballot will be counted when your County Elections Official verifies your voter registration.

Conditional registration may also be available in County Elections satellite oﬃces and vote centers.

Colorado (/state/colorado)

Voter Registration Deadlines

In Person: Election Day. By Mail: Received 8 days before Election Day. Online: 8 days before Election Day. https://www.vote.org/voter-registration-deadlines/ 3/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 20 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Election Day Registration Instructions

You can register and cast a ballot up through Election Day by appearing in- person at a Voter Service and Polling Center during the Early Voting period or on Election Day. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Connecticut (/state/connecticut)

Voter Registration Deadlines

In Person: 7 days before Election Day. By Mail: Postmarked 7 days before Election Day. Online: 7 days before Election Day.

Election Day Registration Instructions

If the voter registration deadline has passed, you can still register to vote in person at a designated Election Day Registration oﬃce. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Delaware (/state/delaware)

Voter Registration Deadlines

In Person: 24 days before Election Day. By Mail: Postmarked 24 days before Election Day. Online: The fourth Saturday before Election Day.

https://www.vote.org/voter-registration-deadlines/ 4/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 21 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Election Day Registration Instructions

N/A

District of Columbia (/state/district-of-columbia)

Voter Registration Deadlines

In Person: Election Day, with proof of residency. By Mail: Received 21 days before Election Day. Online: 21 days before Election Day.

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. Simply go to your regular polling place or early voting site to register and vote. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions. You will need to bring proof of residency, such as a government photo ID, or a copy of a current utility bill, bank statement, government check, or pay check that shows your current name and address.

Florida (/state/ﬂorida)

Voter Registration Deadlines

In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: 29 days before Election Day.

https://www.vote.org/voter-registration-deadlines/ 5/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 22 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Election Day Registration Instructions

N/A

Georgia (/state/georgia)

Voter Registration Deadlines

In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: The ﬁfth Monday before Election Day.

Election Day Registration Instructions

N/A

Hawaii (/state/hawaii)

Voter Registration Deadlines

In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. Online: 30 days before Election Day.

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting at early walk-in locations and on Election Day at your polling place. Contact your Local Election Oﬃce if you have any questions.

https://www.vote.org/voter-registration-deadlines/ 6/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 23 of 50 6/25/2020 Voter Registration Deadlines - Vote.org

Idaho (/state/idaho)

Voter Registration Deadlines

In Person: 24 days before Election Day. If you miss this deadline, you may also register on Election Day. (You must show proof of residence to register at the polls on Election Day.) By Mail: Postmarked 25 days before Election Day. Online: 25 days before Election Day.

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. Simply go to your regular polling place or early voting site to register and vote. You will need to show proof of residence and a photo ID. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Illinois (/state/illinois)

Voter Registration Deadlines

In Person: 27 days before Election Day, after which you may register during the early voting period through Election Day. By Mail: Postmarked 28 days before Election Day. Online: 16 days before Election Day.

Election Day Registration Instructions

You can also register in person (and vote) at your local elections office during the "grace period." The grace period starts 27 days before Election Day and ends on Election Day. Grace Period Voting does NOT take place at your regular https://www.vote.org/voter-registration-deadlines/ 7/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 24 of 50 6/25/2020 Voter Registration Deadlines - Vote.org polling place. Grace Period Voting almost always happens at your Local Election Office. Contact your Local Election Office (https://www.usvotefoundation.org/vote/eoddomestic.htm) for more information.

Indiana (/state/indiana)

Voter Registration Deadlines

In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: 29 days before Election Day.

Election Day Registration Instructions

N/A

Iowa (/state/iowa)

Voter Registration Deadlines

In Person: 10 days before Election Day. If you miss the deadline, you can also register to vote in-person during early vote or on Election Day. By Mail: Postmarked 15 days before Election Day or received 10 days before Election Day. Online: 10 days before Election Day.

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. Simply go to your regular polling place or early voting site to register and vote. https://www.vote.org/voter-registration-deadlines/ 8/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 25 of 50 6/25/2020 Voter Registration Deadlines - Vote.org You should bring valid photo ID and, if the ID does not list your current address, also proof of residence. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

Kansas (/state/kansas)

Voter Registration Deadlines

In Person: 21 days before Election Day. By Mail: Postmarked 21 days before Election Day. Online: 21 days before Election Day.

Election Day Registration Instructions

N/A

Kentucky (/state/kentucky)

Voter Registration Deadlines

In Person: 29 days before Election Day. By Mail: Postmarked 29 days before Election Day. Online: 29 days before Election Day.

Election Day Registration Instructions

N/A

https://www.vote.org/voter-registration-deadlines/ 9/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 26 of 50 6/25/2020 Voter Registration Deadlines - Vote.org

Louisiana (/state/louisiana)

Voter Registration Deadlines

In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. Online: 20 days before Election Day.

Election Day Registration Instructions

N/A

Maine (/state/maine)

Voter Registration Deadlines

In Person: Election Day. By Mail: Received 21 business days before Election Day. Online: N/A

Election Day Registration Instructions

If you register to vote within 21 days of an election, including on election day, you must appear in person to register at the municipal registrar in order to register. Photo ID and proof of residence is required. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) with any questions.

Maryland (/state/maryland) https://www.vote.org/voter-registration-deadlines/ 10/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 27 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Voter Registration Deadlines

In Person: 21 days before Election Day. You may also register during early voting or on Election Day with proof of address. See Election Day registration instructions. By Mail: Postmarked 21 days before Election Day. Online: 21 days before Election Day.

Election Day Registration Instructions

You can register to vote in-person during early voting and on Election Day. You will need to bring your MVA-issued license, ID card, or change of address card, or a paycheck, bank statement, utility bill, or other government document that has your name and current address.

Massachusetts (/state/massachusetts)

Voter Registration Deadlines

In Person: 20 days before Election Day. By Mail: Postmarked 20 days before Election Day. Online: 20 days before Election Day.

Election Day Registration Instructions

N/A

Michigan (/state/michigan)

Voter Registration Deadlines

https://www.vote.org/voter-registration-deadlines/ 11/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 28 of 50 6/25/2020 Voter Registration Deadlines - Vote.org In Person: Election Day at your city or township clerk oﬃce. The voter registration deadline is 15 days before Election Day, if you submit an application form through a voter registration drive or deliver it to a county clerk or secretary of state oﬃce. By Mail: Postmarked 15 days before Election Day. Online: 15 days before Election Day.

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during early voting or on Election Day. If you plan to register in person within 14 days of Election Day, you will need to present proof of residency. To register under these rules, Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) with any questions.

Minnesota (/state/minnesota)

Voter Registration Deadlines

In Person: Election Day. By Mail: Received 21 days before Election Day. Online: 21 days before Election Day.

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time during the in-person absentee voting period or on Election Day. Simply go to your regular in-person absentee voting site -- or to your regular polling place -- to register and vote. You should bring valid ID and, if the ID does not list your current name and address, also proof of residence. Contact your Local Election Oﬃce (https://www.usvotefoundation.org/vote/eoddomestic.htm) if you have any questions.

https://www.vote.org/voter-registration-deadlines/ 12/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 29 of 50 6/25/2020 Voter Registration Deadlines - Vote.org

Mississippi (/state/mississippi)

Voter Registration Deadlines

In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. Online: N/A

Election Day Registration Instructions

N/A

Missouri (/state/missouri)

Voter Registration Deadlines

In Person: 27 days before Election Day. By Mail: Postmarked 27 days before Election Day. Online: 27 days before Election Day.

Election Day Registration Instructions

N/A

Montana (/state/montana)

Voter Registration Deadlines

In Person: Election Day. https://www.vote.org/voter-registration-deadlines/ 13/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 30 of 50 6/25/2020 Voter Registration Deadlines - Vote.org By Mail: Postmarked 30 days before Election Day. Received 27 days before Election Day. Online: N/A

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote at your county election office through close of polls on Election Day, except between noon and 5:00 p.m. the day before the election. You'll have to register at the office of your Local Election Office (https://www.usvotefoundation.org/vote/eoddomestic.htm) -- not at a polling place. Contact your Local Election Office (https://www.usvotefoundation.org/vote/eoddomestic.htm) for questions about the process. Photo ID or proof or residency is required.

Nebraska (/state/nebraska)

Voter Registration Deadlines

In Person: 11 days before Election Day. By Mail: Postmarked 18 days before Election Day. Received 14 days before Election Day, if there's an illegible postmark. Online: 18 days before Election Day

Election Day Registration Instructions

N/A

Nevada (/state/nevada)

Voter Registration Deadlines

https://www.vote.org/voter-registration-deadlines/ 14/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 31 of 50 6/25/2020 Voter Registration Deadlines - Vote.org In Person: Election Day. By Mail: Postmarked 28 days before Election Day. Online: 5 days before Election Day

Election Day Registration Instructions You may register to vote in-person at the polling place either during early voting or on Election Day. You must show a valid Nevada driver’s license or identiﬁcation card at the polls to vote. If the identiﬁcation does not have your current address, you must also show proof of residency .

N/A

New Hampshire (/state/new-hampshire)

Voter Registration Deadlines

In Person: Election Day. Before Election Day, the last day to register is the last meeting of the Supervisors of the Checklist. The supervisors meet once, 6-13 days before Election Day. Check your town/city website, or call your clerk's oﬃce for the date, time, and location of the Supervisor's meeting. By Mail: Received between 6 and 13 days before Election Day, depending on which town you live in. Online: N/A

Election Day Registration Instructions

If you have missed the voter registration deadline, you can still register to vote and a cast a ballot at the same time on Election Day. Simply go to your regular polling place or early voting site to register and vote. Voters should bring a valid photo ID to vote. Voters that do not bring a valid photo ID execute a challenged voter affidavit form and will later receive a letter requesting confirmation they voted. Contact your Local Election Office (https://www.usvotefoundation.org/vote/eoddomestic.htm) for questions about the process or identification requirements.

https://www.vote.org/voter-registration-deadlines/ 15/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 32 of 50 6/25/2020 Voter Registration Deadlines - Vote.org

New Jersey (/state/new-jersey)

Voter Registration Deadlines

In Person: 21 days before Election Day. By Mail: Postmarked 21 days before Election Day. Online: N/A

Election Day Registration Instructions

N/A

New Mexico (/state/new-mexico)

Voter Registration Deadlines

In Person: Saturday before Election Day at the county clerk's oﬃce. 28 days before Election Day otherwise. By Mail: Postmarked 28 days before Election Day. However, an application may be accepted through the Friday following the deadline if the application is postmarked before the deadline. Online: 28 days before Election Day

Election Day Registration Instructions

N/A. New Mexico will begin same-day registration in 2021.

New York (/state/new-york)

https://www.vote.org/voter-registration-deadlines/ 16/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 33 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Voter Registration Deadlines

In Person: 25 days before Election Day. By Mail: Postmarked 25 days before Election Day. Received 20 days before Election Day. Online: 25 days before Election Day

Election Day Registration Instructions

N/A

North Carolina (/state/north-carolina)

Voter Registration Deadlines

In Person: The Saturday before Election Day if voting early in person. Otherwise 25 days before Election Day. By Mail: Postmarked 25 days before Election Day. If the postmark is missing or unclear, the application will still be processed if it is Received 20 days before Election Day. Online: 25 days before Election Day

Election Day Registration Instructions

If an individual becomes qualiﬁed to vote between the registration deadline (the 25th day before Election Day) and Election Day, then the individual may apply to register on Election Day by submitting an application to: a member of the county board of elections, the county director of elections, or the chief judge or a judge of the precinct in which the person is eligible to vote. If the application is approved, the individual may vote the same day. This applies to those individuals who recently become naturalized citizens of the U.S. or who have restored to citizenship after a felony conviction, but it does not apply to individuals who were 17 years old and reach 18 after the registration deadline.

https://www.vote.org/voter-registration-deadlines/ 17/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 34 of 50 6/25/2020 Voter Registration Deadlines - Vote.org North Dakota (/state/north-dakota)

Voter Registration Deadlines

In Person: North Dakota does not have voter registration. You simply need to bring valid proof of ID and residency to the polls in order to vote. By Mail: North Dakota does not have voter registration. You simply need to bring valid proof of ID and residency to the polls in order to vote. Online: N/A

Election Day Registration Instructions

North Dakota does not have voter registration. You simply need to bring valid proof of ID and residency to the polls in order to vote.

Ohio (/state/ohio)

Voter Registration Deadlines

In Person: 30 days before Election Day, extended to the next business day if this falls on a Sunday. By Mail: Postmarked 30 days before Election Day, extended to the next business day if this falls on a Sunday. Online: 30 days before Election Day

Election Day Registration Instructions

N/A

Oklahoma (/state/oklahoma)

Voter Registration Deadlines https://www.vote.org/voter-registration-deadlines/ 18/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 35 of 50 6/25/2020 Voter Registration Deadlines - Vote.org In Person: 25 days before Election Day. By Mail: Postmarked 25 days before Election Day. Online: N/A

Election Day Registration Instructions

N/A

Oregon (/state/oregon)

Voter Registration Deadlines

In Person: 21 days before Election Day. By Mail: Received 21 days before Election Day. Online: 21 days before Election Day

Election Day Registration Instructions

N/A

Pennsylvania (/state/pennsylvania)

Voter Registration Deadlines

In Person: 15 days before Election Day. By Mail: Received 15 days before Election Day. Online: 15 days before Election Day

Election Day Registration Instructions

N/A https://www.vote.org/voter-registration-deadlines/ 19/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 36 of 50 6/25/2020 Voter Registration Deadlines - Vote.org

Rhode Island (/state/rhode-island)

Voter Registration Deadlines

In Person: 30 days before Election Day. By Mail: Postmarked 30 days before Election Day. If the postmark is missing or unclear and the registration form is received no later than 5 days after the deadline, the individual shall be presumed to have been registered by the deadline. Online: 30 days before Election Day

Election Day Registration Instructions

You may register in person on Election Day at your local Board of Canvassers but only for Presidential elections.

South Carolina (/state/south-carolina)

Voter Registration Deadlines

In Person: 30 days before Election Day. If this falls on a Sunday, the last preceeding day that the county board of voter registration and elections is open. By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 30 days before Election Day

Election Day Registration Instructions

N/A

https://www.vote.org/voter-registration-deadlines/ 20/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 37 of 50 6/25/2020 Voter Registration Deadlines - Vote.org

South Dakota (/state/south-dakota)

Voter Registration Deadlines

In Person: 15 days before Election Day. By Mail: Received 15 days before Election Day. Online: N/A

Election Day Registration Instructions

N/A

Tennessee (/state/tennessee)

Voter Registration Deadlines

In Person: 30 days before Election Day. If this falls on a Sunday, 29 days before Election Day. By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 30 days before Election Day

Election Day Registration Instructions

N/A

Texas (/state/texas)

Voter Registration Deadlines https://www.vote.org/voter-registration-deadlines/ 21/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 38 of 50 6/25/2020 Voter Registration Deadlines - Vote.org In Person: 30 days before Election Day. If this falls on a Sunday, 29 days before Election Day. By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: N/A

Election Day Registration Instructions

N/A

Utah (/state/utah)

Voter Registration Deadlines

In Person: 7 days before Election Day in clerk's oﬃce, but may also register during early vote and on Election Day.However, individuals must vote by provisional ballot if they: (i) register online or in person between 7 and 14 days before Election Day, (ii) register during early voting, or (iii) register on Election Day. By Mail: Postmarked 30 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 7 days before Election Day

Election Day Registration Instructions

An individual who is not registered to vote may register to vote, and vote, on election day or during the early voting period described in Section 20A-3-601, by voting a provisional ballot, if:

1. the individual is otherwise legally entitled to vote the ballot; 2. the ballot is identical to the ballot for the precinct in which the individual resides; 3. the information on the provisional ballot form is complete; and 4. the individual provides valid voter identiﬁcation and proof of residence to the poll worker.

https://www.vote.org/voter-registration-deadlines/ 22/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 39 of 50 6/25/2020 Voter Registration Deadlines - Vote.org More information on election day registration (https://le.utah.gov/xcode/Title20A/Chapter2/20A-2-S207.html?v=C20A-2- S207_2018050820180508)

Vermont (/state/vermont)

Voter Registration Deadlines

In Person: Election Day (you must show proof of residence to register at the polls on Election Day). By Mail: Received Election Day. Online: Election Day. But if you register online the day before or on Election Day, your application may not be processed and your name may not appear on the checklist and you may be asked to ﬁll out another application at the polls. To be sure your name appears on the checklist, please register by the Friday before the election.

Election Day Registration Instructions

You can register to vote on Election Day at your polling place. You must show proof of residence to register at the polls on Election Day.

Virginia (/state/virginia)

Voter Registration Deadlines

In Person: 22 days before Election Day. If this day falls on a Sunday, 21 days before Election Day. By Mail: Postmarked 22 days before Election Day, the deadline is extended to the next business day if this falls on a Sunday. Online: 22 days before Election Day

https://www.vote.org/voter-registration-deadlines/ 23/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 40 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Election Day Registration Instructions

N/A

Washington (/state/washington)

Voter Registration Deadlines

In Person: Election Day. By Mail: Received 8 days before Election Day. Online: 8 days before Election Day

Election Day Registration Instructions

Individuals may register to vote in their county auditor's office, the division of elections if in a separate city from the county auditor's office, a voting center, or other location designated by the county auditor in his or her county of residence no later than 8:00pm on the day of the primary, special election, or general election. The registration process and requirements for registering on Election Day are the same as for filling out a paper registration form or the online form.

West Virginia (/state/west-virginia)

Voter Registration Deadlines

In Person: 21 days before Election Day. By Mail: Postmarked 21 days before Election Day. Online: 21 days before Election Day

Election Day Registration Instructions https://www.vote.org/voter-registration-deadlines/ 24/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 41 of 50 6/25/2020 Voter Registration Deadlines - Vote.org N/A

Wisconsin (/state/wisconsin)

Voter Registration Deadlines

In Person: The Friday before Election Day. By Mail: Postmarked the 3rd Wednesday before Election Day. Online: 20 days before Election Day

Election Day Registration Instructions

Individuals may register to vote in person at your polling place on Election Day. All individuals must provide both a proof of residency document and proof of identiﬁcation to register on election Day.

Wyoming (/state/wyoming)

Voter Registration Deadlines

In Person: 14 days before Election Day. By Mail: Postmarked 14 days before Election Day. After this date, individuals may register to vote by mail if their registration is also accompanied by an absentee ballot request. Online: N/A

Election Day Registration Instructions

1. Wyoming does not accept the National Voter Registration Form so please do not use our Register to Vote Tool (/register-to-vote/) to register to vote in Wyoming.

https://www.vote.org/voter-registration-deadlines/ 25/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 42 of 50 6/25/2020 Voter Registration Deadlines - Vote.org 2. Wyoming prefers that people register to vote in person at the County Clerk's office. 3. If this isn't possible, print out the Wyoming Voter Registration form and fill it out in front of a notary. That part is really important! Your Wyoming Voter Registration Form MUST be notarized. Print clearly, using a black or blue ink pen (not felt tip). 4. Sign the voter registration oath on the form and have the notary or registered agent sign the form. 5. Make copies of the identification documents you showed to the notary. 6. Mail the voter registration form, along with the copies of your ID documents, to your County Clerk (http://soswy.state.wy.us/Elections/CountyClerks.aspx) . Note: Sending your form to any other office will delay your voter registration. 7. Mail your form as soon as possible. Voter registration closes two weeks prior to Election Day. 8. Follow up with your County Clerk (http://soswy.state.wy.us/Elections/CountyClerks.aspx) about any questions you may have about your registration or requests for absentee ballots.

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VOTER REGISTRATION

Voter registration rules (/voter-registration-rules/)

Voter registration deadlines (/voter-registration-deadlines/)

https://www.vote.org/voter-registration-deadlines/ 27/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 44 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Check your registration status (/am-i-registered-to-vote/)

Pledge to register (/pledge-to-register/)

ABSENTEE BALLOTS

Absentee ballot rules (/absentee-voting-rules/)

Absentee ballot deadlines (/absentee-ballot-deadlines/)

Get your absentee ballot (/absentee-ballot/)

VOTE BY MAIL

Vote by mail rules (/absentee-voting-rules/)

Vote by mail deadlines (/absentee-ballot-deadlines/)

Vote by mail (/absentee-ballot/)

VOTING

Voting & COVID-19 (/covid-19/)

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Press (/press/) https://www.vote.org/voter-registration-deadlines/ 28/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 45 of 50 6/25/2020 Voter Registration Deadlines - Vote.org Values (/values/)

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Donate to Vote.org (/donate/)

https://www.vote.org/voter-registration-deadlines/ 29/29 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 46 of 50 Exhibit 5

Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 47 of 50 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 48 of 50 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 49 of 50 Case 1:20-cv-00457-WO-JLW Document 52-4 Filed 06/26/20 Page 50 of 50 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Plaintiffs,

THE NORTH CAROLINA STATE BOARD OF ELECTIONS; DAMON CIRCOSTA, in his official capacity as CHAIR OF THE STATE BOARD OF ELECTIONS; STELLA Civil Action No. 20-cv-00457 ANDERSON, in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS; KEN RAYMOND, in his official MEMORANDUM IN capacity as MEMBER OF THE STATE BOARD SUPPORT OF MOTION FOR OF ELECTIONS; JEFF CARMON III, in his RECONSIDERATION OF official capacity as MEMBER OF THE STATE ORDER DENYING BOARD OF ELECTIONS; DAVID C. BLACK, in PROPOSED REPUBLICAN his official capacity as MEMBER OF THE COMMITTEE STATE BOARD OF ELECTIONS; KAREN INTERVENORS’ MOTION TO BRINSON BELL, in her official capacity as INTERVENE AND EXECUTIVE DIRECTOR OF THE STATE ALTERNATIVE MOTION BOARD OF ELECTIONS; THE NORTH FOR LEAVE TO FILE CAROLINA DEPARTMENT OF RESPONSE AS AMICI TRANSPORTATION; J. ERIC BOYETTE, in his CURIAE TO PLAINTIFFS’ official capacity as TRANSPORTATION AMENDED MOTION FOR A SECRETARY; THE NORTH CAROLINA PRELIMINARY INJUNCTION DEPARTMENT OF HEALTH AND HUMAN SERVICES; MANDY COHEN, in her official capacity as SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendants,

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 1 of 10 and

Intervenor-Defendants.

MEMORANDUM IN SUPPORT OF REPUBLICAN COMMITTEES’ MOTION FOR RECONSIDERATION AND ALTERNATIVE MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 2 of 10

INTRODUCTION

Proposed Intervenor-Defendants the Republican National Committee (“RNC”),

National Republican Senatorial Committee (“NRSC”), National Republican Congressional

Committee (“NRCC”), and North Carolina Republican Party (“NCRP”) (collectively the

“Republican Committees”) move for reconsideration of the court’s June 24, 2020 order denying the Republican Committees’ motion to intervene. First, Defendants and the

Legislative Intervenors are not organizations engaged in voter education, registration, and get-out-the-vote activities. By denying the Republican Committees’ request for intervention, there is currently no party in the case that can provide arguments in opposition to Plaintiffs League of Women Voters and Democracy North Carolina, which engage in the same activities. Second, the denial of permissive intervention was based on concern that the Committees’ participation would cause delay, even though they had timely filed a motion to intervene and committed to meeting scheduling deadlines. Accordingly, the

Republican Committees urge the Court to reverse its ruling and grant them intervention in this case.

Alternatively, the Republican Committee request leave to file a response in

opposition to Plaintiffs’ amended motion for a preliminary injunction as amici curiae.

BACKGROUND

On June 19, 2020, the Republican Committees moved to intervene by right and by

permissive intervention in order to uphold the North Carolina election laws challenged by

Plaintiffs and prevent the diversion of financial and personnel resources to address abrupt

changes to voting procedures only months before an election. Mot. to Intervene at 4 (Dkt.

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 3 of 10

No. 33). As stated in their motion, the Republican Committees committed to file their response to Plaintiffs’ motion by the deadline specified by the court, and represented they would not attempt to alter that schedule in any way. See Republican Committees’ Br. at 5

(Dkt. No. 33).

On June 24, the court denied the motion to intervene on both grounds. The Court

held that the Republican Committees had no right to intervention because their interest in

“the current lawfully enacted requirements” would be adequately represented by the parties already in the case. Order at 4 (Dkt. No. 48). With respect to permissive intervention, the court determined that granting the Republican Committees’ motion to intervene would

“likely unnecessarily extend fact-finding, discovery, and evidentiary hearings, thereby resulting in inefficiencies and undue delay of the resolution of these matters.” Id. at 7.

ARGUMENT

I. THE REPUBLICAN COMMITTEES’ HAVE UNIQUE INTERESTS SUPPORTING INTERVENTION AND THEIR PARTICIPATION WILL NOT HINDER PROGRESS IN THE CASE.

Rule 54(b), which “provides that ‘any order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Parker v. John Moriarty & Assocs., 221 F. Supp. 3d 1, 2 (D.D.C. 2016)

(quoting Fed. R. Civ. Proc. 54(b)). Although reconsideration is not granted liberally, it is appropriate when necessary to “correct manifest errors of law or fact.” Georgia-Pacific

Consumer Prods. v. Von Drehle Corp., 815 F. Supp. 2d 927, 929 (E.D.N.C. 2011) (quoting

Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D. 507 (W.D.N.C. 2003)).

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 4 of 10

That standard is satisfied here. First, the Court’s order denying intervention by right misconstrued the Republican Committees’ interests in opposing Plaintiffs’ motion for a preliminary injunction. The Court denied intervention on the ground that the existing parties adequately represent the interest in “current lawfully enacted [voting] requirements.” Order at 4 (Dkt. No. 48). But as specified in their Reply and supporting

Declaration, the Committees seek to preserve North Carolina’s voting laws to prevent disruption to the Committees’ “voter registration, voter education, and ‘get-out-the-vote’

(‘GOTV’) activities up to and on election day.” Those are the same activities carried out by Plaintiffs Democracy North Carolina and the League of Women Voters, and which they claim the statutes at issue suppress. Defendants and Intervenors do not fund or engage in such electioneering programs and cannot adequately represent the interests of the

Republican Committees.

Second, although finding the Republican Committees’ request for permissive intervention timely and that their answer (filed with the motion) “shared common questions

of law and fact with the main action,” the Court denied permissive intervention because

their involvement might “unnecessarily extend fact-finding, discovery, and evidentiary

hearings, thereby resulting in inefficiencies and undue delay of the resolution of these

matters.” Order at 7 (Dkt. No. 48). But the Republican Committees committed to adhere

to the schedule in the case, filed an Answer with their motion, and herewith submit a brief

in opposition (tendered either as a brief in intervention or, alternatively as an amicus brief).

With respect, there is no basis for the Court to question the commitment of the Republican

Committees to conform to the existing schedule, or to otherwise disrupt the case. Weighing

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 5 of 10

against any minimal additional burden would be the nationwide experience with election laws and procedures the Committees’ can bring to the case. Accordingly, the Republican

Committees respectfully request that the Court reconsider its ruling and enter an order

granting intervention in sufficient time for the Committees to participate in any hearing on

Plaintiffs’ motion.

II. ALTERNATIVELY, REPUBLICAN COMMITTEES REQUEST APPROVAL TO PARTICIPATE AS AMICI CURIAE.

In the event the court adheres to its order denying intervention, the Republican

Committees seek leave to file the accompanying conditional friend of the court brief. The

Republican Committees have substantial interests in the outcome of Plaintiffs’ motion for

a preliminary injunction and the litigation as a whole. The Republican Committees

comprise national committees and a state political party organization of the Republican

Party. Each is dedicated to supporting Republican candidates in North Carolina through

fundraising, voter education and registration, get-out-the-vote drives, and other campaign

activities. In light of these programs and the expenses necessary to administer them, the

Republican Committees oppose Plaintiffs’ amended motion for a preliminary injunction

because the requested relief would create voter confusion, increase the risk of voter fraud,

and require the Republican Committees to divert money, staff, and volunteer resources to

communicate to voters about the proposed changes. Further, certain changes advocated by

Plaintiffs (such as extending the voter registration deadline or allowing private entities to

collect ballots) would directly affect the Republican Committees’ electioneering efforts by

requiring competitive responses. Accordingly, the Republican Committees seek to defend

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 6 of 10

the challenged North Carolina voting laws and support the Defendants and Legislative

Intervenor-Defendants in this matter. Based on their decades of experience with voting

activities in North Carolina and across the country, the Republican Committees have

substantial expertise in political campaigns and voting practices and procedures, and their

perspectives on election laws and procedures will assist the Court.

CONCLUSION

For the foregoing reasons, the RNC, NRSC, NRCC, and NCRP urge the Court to grant their motion for reconsideration and admit them as intervenors with all the rights of a defendant in this litigation. Alternatively, the RNC, NSRC, NRCC, and NCRP request permission to file the attached brief as amici curiae in accordance with the Court’s June

24, 2020 order. See Order at 7 (Dkt. No. 48).

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Dated: June 26, 2020 Respectfully submitted,

R. Scott Tobin (N.C. Bar No. 34317) Taylor English Duma LLP 4208 Six Forks Road, Suite 1000 Raleigh, North Carolina 27609 Telephone: (404) 640-5951 Email: [email protected]

Counsel for the Republican Committees

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 8 of 10

CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for this Memorandum is 1,177 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of Microsoft Word, which was used to prepare the brief.

/s/ Bobby R. Burchfield Bobby R. Burchfield

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 9 of 10

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that, on June 26, 2020, I electronically filed the foregoing Memorandum in Support of Republican Committees’ Motion for

Reconsideration and Alternative Motion for Leave to File Amici Curiae Brief with the

Clerk of the Court using the CM/ECF system.

/s/ Bobby R. Burchfield Bobby R. Burchfield

Case 1:20-cv-00457-WO-JLW Document 53 Filed 06/26/20 Page 10 of 10