Ortiz II v. NORTH CAROLINA STATE BOARD OF ELECTIONS ( 2024 )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:24-CV-00420-BO JOHNNY THOMAS ORTIZ II, et al., ) Plaintiffs, ORDER NORTH CAROLINA STATE BOARD OF ELECTIONS, et al., ) Defendants. Plaintiffs Johnny Thomas Ortiz II, Jimmie Gregory Rogers Jr., and Weldon Murphy are among the thousands of North Carolina voters who signed petitions to certify the Justice For All Party of North Carolina (“JFA”) as new political party, which would allow JFA’s candidates to appear on the 2024 general election ballot. JFA submitted more validated signatures than needed under the relevant statute, and its submissions were timely. But the North Carolina State Board of Elections (““NCSBE” or “the Board”) deemed JFA’s petitions not sufficient and voted not to certify JFA as a new political party. Plaintiffs contend that the Board’s decision violates their First and Fourteenth Amendment rights. They move this Court for preliminary injunctive relief. [DE 8]. JFA, its nominee for President, and its party chair (collectively, “Intervenors”) move to intervene as plaintiffs in support of the motion. The Board opposes injunctive relief and defends its decision on the grounds that JFA failed to substantiate the required number of signatures. [DE 30]. For the reasons that follow, the Court grants Intervenor’s motion, and the Court grants in part and denies in part Plaintiffs’ motion for preliminary injunction. BACKGROUND I. Factual Background! A. North Carolina’s ballot access scheme for new political parties To be certified as a new party and place its candidates on the 2624 general election ballot, JFA had to comply with North Carolina’s statutory scheme for new political parties set forth in N.C. Gen. Stat. §§ 163-96 and 163-98. Section § 163-96(a)(2) sets the requirements for a group of voters to qualify as a new political party. That group of voters must file with the NCSBE petitions for forming a new political party that “‘are signed by registered and qualified voters . . . equal in number to on-quarter of one percent (.25%) of the total number of voters who voted in the most recent general election for Governor.” § 163-96(a)(2). The petition must also “be signed by at least 200 registered voters from each of three congressional districts in North Carolina.” Jd. Such petitions must be filed with the Board before 12:00 p.m. on the 1 June preceding the general election in which the new party wishes to participate. Jd. Once the petitions are filed, the “State Board of Elections shall forthwith determine the sufficiency of petitions filed with it,” notifying the state chair of the proposed new political party of its decision immediately afterwards. Jd. As for the petitions, § 163-96(b) governs their requirements. That section starts by stating the specific heading that is to appear on each petition for the creation of new political party. It goes on to list additional typographical and stylistic rules. ' The Court derives the facts from the pleadings and materials entered into the record by the parties as well as matters of public of public record those materials reference. The Court may take judicial notice matters of public record. Justice 360 v. Stirling, 42 F.4th 450, 455 (4th Cir. 2022); see also Fed. R. Evid. Adding to those requirements for the form of the petition, § 163-96(b) commands that “organizers and petition circulators shall inform the signers of the general purpose and intent of the new party.” It then finishes with limitations on the proposed new parties’ names and states that the Board must reject petitions for non-compliance with the naming requirements. To determine whether a party has satisfied these requirements, the Board draws on several sources. To determine whether the petition sheets contain all the required information, the Board simply looks at the petition sheets. Confirming that the purpose and intent requirement is satisfied, however, requires the Board to go beyond the petitions. The Board’s practice is to look at documents or statements submitted by the parties since they have the information to demonstrate compliance. Such materials include training materials provided by the parties to their signature gathers, which evince whether the parties’ signature gatherers explained the purpose and intent of the party. (See Cox Decl. 4 11 [DE 30-1]). Although the petitions must be filed with the Board by the 1 June 2024 deadline, there is a critical preceding step with its own deadline. The proposed new party must submit its petitions “to the chairman of the county board of elections in the county in which the signatures were obtained no later than 5:00 p.m. on the fifteenth day preceding” the 1 June deadline to file with the Board. § 163-96(c). For the timely submitted petitions, the chairman of each county board then proceeds to “examine and verify the signatures.” /d. To fulfill this duty, the chairman must first “examine the signatures on the petition and place a check mark on the petition by the name of each signer who is qualified to register to vote in his county.” § 163-96(c)(1). The chairman then must “attach to the petition a signed certificate stating that the signatures on the petition have been checked against the registration records and indicates the number found qualified and registered to vote in his county.” § 163-96(c)(2). Finally, the chairman returns the petition to the party and adds the new certificate. § 163-96(c). The county boards have two weeks to complete this process from the day the proposed new party submits its petition. Jd. If the Board certifies the new political party, the party is “entitled to have the names of its candidates for national, State, congressional, and local offices printed on the official ballots” for “the first general election following the date on which the new party qualifies.” § 163-98. The new political party must choose its candidates by convention. /d. Following the convention, the president of the convention must certify to the Board the individuals chosen as the new party’s candidates. And the deadline for that submission is 1 July. Jd. To sum up, for a group of voters to be certified as a new political party in time to participate in the 2024 general election, the proposed new party must: (1) collect sufficient valid signatures on petitions that meet § 163-96(b)’s requirements, including “informi[ng] signers of the general purpose and intent of the new party,” § 163-96(b); (2) submit those petitions to the county boards of elections before 5:00 p.m. on 17 May 2024 so the county boards of elections could validate them; (3) submit those petitions and their new attached certificates to the Board by noon on □ June 2024; and, (4) nominate candidates in a convention and submit their names to the Board by 1 July 2024. B. The Board declines to certify JFA as a new political party. In January 2024, JFA began its efforts to gather signatures to meet the 17 May 2024 deadline to submit signatures to the county boards. JFA submitted most of its sheets to the county boards around the end of April beginning of May. To be certified as a new political party for the 2024 general election, JFA needed to hit 13,865 verified signatures. JFA ultimately submitted 17,141 verified signatures, thus clearing that threshold a cushion of over 3,200 signatures. JFA’s signatures also satisfied the three congressional districts requirement. During the review process, however, several issues were raised. (See Brinson Bell Test. at 6, 15 [DE 38-4]; Cox Decl.ff 4, 24.) First, at some point during the verification process, a county board of elections raised concerns that a JFA petition sheet had potentially fraudulent signatures. That county board was tipped to the possibility of fraud when the name of a local leader for recognized major political party appeared on the petition sheet. The county board contacted the purported signer, who confirmed that she didn’t sign the petition. The county director told the Board, and it began a criminal investigation into the gathering of those signatures. Additionally, other counties reported signs of fraudulent signatures on JFA petitions to the Board. The counties concerned with fraudulent signatures were Wake, Edgecombe, Watauga, Beaufort, and, perhaps, Mecklenburg. None of the signatures suspected as fraudulent were validated, so those signatures were not included in JFA’s total signature count. (See Brinson Bell Test. at 10; Cox Decl. {J 14, 25; Excerpts of North Carolina House Oversight & Reform Committee Hearing Test. 107:11—20, 107:23 [DE 38-2] (hereafter “House Test’”).) Second, outside groups filed objection letters regarding JFA’s petitions. Specifically, Clear Choice Action claimed that 76 county boards failed to conduct the signature matching needed to verify JFA’s petition. Although § 163-96 has no official process for third-party groups to challenge or object to the certification of a new political party, the Board’s policy is to review all allegations and evidence of violations. (See Clear Choice Action, /3 June Letter to NCSBE, at https://dl.ncsbe.gov/?prefix=State_Board_ Meeting Docs/2024-07- 16/New%20Party%20Petitions/Objections/ (last accessed Aug. 12, 2024) ; Brinson Bell Test. at 17; Cox Decl. § 10.) On Clear Choice Action’s prompting, the Board conducted its own review of the county boards’ signature validation efforts. That review revealed that Clear Choice Action misread the publicly reported data. Instead of the 76 county boards alleged to have conducted no signature matching, the actual number of county boards did not match petition signer’s signatures to the signatures in their voter registration records was nine, maybe ten. On the Board’s instructions, those counties completed their signature comparisons by 19 June and submitted updated totals to the Board. (See Brinson Bell Test. at 9-10; Cox Decl. J 13; House Test. 75:15-24, 106:11-15.) At the Board’s 26 June 2024 meeting, the Board addressed the sufficiency of JFA’s petitions. JFA’s party chair, Italo Medelius, appeared and fielded questions from the Board. Much of the Board’s inquiry concerned JFA’s control over the signature gathering. Medelius explained that JFA operates as a volunteer, grassroots outfit. It conducted multiple trainings for petition circulators and provided instructional materials and guidance. Throughout the signature gathering process, JFA was aware that the sufficiency of its petitions depended, in part, on its ability to demonstrate not only its intent to create a long-term political organization but also that it informed petition signers of JFA’s intent and general purpose. To that end, JFA referenced an internal e- mail, which it submitted to the Board, containing materials and a “script” for petition circulators.” The Board also asked Medelius about JFA’s connection with People Over Parties (“POP”), a non-partisan group aimed at promoting voter choice. During the signature-gathering process, POP, through its general counsel, contacted JFA about gathering petitions on JFA’s behalf. JFA admitted that it didn’t have control over POP or its efforts, but it did authorize three of POP’s * (See NCSBE, 26 June 2024 Board Meeting, at https://s3.amazonaws.com/dl.ncsbe.gov/State_Board Meeting Docs/2024-06- 26/State%20Board%200f%20Elections%20Meeting-20240626%202000-1.mp4 (last accessed Aug. 12, 2024); JFA, Responses to NCSBE, https://dl.ncsbe.gov/?prefix=State_Board Meeting Docs/2024-06- 26/New%20Party%20Petitions/ (last accessed 12 August 2024)). circulators to submit petitions on JFA’s behalf. Several weeks before the 26 June meeting, POP’s general counsel, Paul Hamrick, responded to a request from NCSBE staff for information relating to its efforts to collect signatures for JFA. POP submitted training materials for its petition circulators detailing its efforts to convey the purpose and intent requirement. Responding to a later subpoena, POP also submitted a declaration from David Saddler, the manager of the canvassing and petition management company POP engaged to collect signatures for JFA further illuminating POP’s efforts to comply with § 163-96. (See House Test. at 6:14—10; Cox Decl. § 27; Hamrick Decl. 9§ 2-5, 7-5, Ex. D. at 5, Ex. A to Ex. D ff 2, 3, 7-9 [DE 38-1].) While the Board continued to investigate JFA’s petition, the statutory deadline edged closer. Notwithstanding the uncertainty about its status as a new political party, JFA went ahead and held a nominating convention to select its candidates for the November 2024 general election. It selected Dr. Cornel West as its nominee for President of the United States, Dr. Melina Abdullah as its nominee for Vice President of the United States, and Frankie Lee Gist as its nominee for Mayor of Winston Salem, North Carolina. JFA’s candidate list was timely submitted. (See Compl. 4 28, 29; Cox Decl. § 31; Intervenor’s Compl. 17,18 [DE 44-1]) Following the 26 June meeting, the Board directed NCSBE staff to further their investigation into JFA’s petitions. As part of this investigation, NCSBE staff attempted to contact petition signers. They reached out first to 66 signers who signed affidavits—submitted by Clear Choice Action—stating that they wished to withdraw their signatures. Of the 66, 10 responded. Staff then reached out to 250 petition signers, who were randomly selected from a list of registered voters whose registration records included a phone number. Of the 250 signers contacted, 49 responded: 18 stated they did not sign, 3 stated they didn’t remember signing, and 28 confirmed they did sign. The Staff then interviewed those 28 voters: 15 of the 28 responded that they understood the purpose of the petition and that the petition was for the support of a new political party. What’s more, of those 15 signers, 13 confirmed they were informed of the purpose and intent of the party with the other two stating they believed so. (See NCSBE, Summary of Calls to JFA Petition Signers, at https://dl.ncsbe.gov/?prefix=State_Board_Meeting Docs/2024-07- 16/New%20Party%20Petitions/SBE%20Inquiry/ (last accessed Aug. 12, 2024); Brinson Bell Test. at 17; Cox Decl. § 27, 29.) On 16 July 2024, the Board met to revisit JFA’s certification for a final time. The Board considered the results of the staff's investigation, including the survey results discussed above. At the end of the meeting, the Board voted 3-2 against certifying JFA as a new political party. According to Chairman Hirsch, the Board’s decision not to certify as a new political party was because (1) JFA itself submitted only 4,00 signatures with the remaining signatures coming from outside groups; (2) a “substantial portion” of the voters whose names appeared on the petition advised the Board that they did not sign; (3) “many others” were not informed of JFA’s purpose; (4) the outside petition circulators were subpoenaed but did not respond; and (5) county boards identified fraudulent signatures. (See Hirsch Test. at 1 [DE 38-4]; Cox Decl. 4¥ 29, 30; Brinson Bell Test. at 17; House Test. 81:11-21.) Plaintiffs Johnny Thomas Ortiz IJ, Jimmie Gregory Rogers Jr., and Weldon Murphy are registered North Carolina Voters who signed petitions to form JFA as a new political party. Plaintiffs allege that N.C. Gen. Stat. §§ 163-96 and 163-98, as applied, violates their First and Fourteenth Amendment rights. (See Compl. 7-9, 72-80; Ortiz Decl. [DE 8-1]; Rogers Decl. [DE 8-1}; Murphy Decl. [DE 8-3].) Plaintiffs have sued the NCSBE, the executive agency responsible for administering election laws in North Carolina. Plaintiff have also sued following individuals associated with the NCSBE in their official capacities: Defendant Karen Brinson Bell, NCSBE’s executive director; Defendant Alan Hirsch, NCSBE’s chairman; Defendant Jeff Carmon, NCSBE’s secretary; Defendants Stacy Eggers IV, Kevin N. Lewis, and Siobhan O’ Duffy Millen, all NCSBE members. (Compl. {J 10-16) Il. Procedural Background On 22 July 2024, Plaintiffs filed their complaint for declaratory and injunctive relief. [DE 1]. Contemporaneous with their complaint, Plaintiffs moved for preliminary injunctive relief. [DF 8]. On 23 July 2024, this Court noticed a hearing on Plaintiff's motion for preliminary injunction on 30 July 2024 at the United States Courthouse in Elizabeth City, North Carolina. [DE 11]. Given the impending hearing, the Court issued a briefing schedule and ordered Plaintiffs to serve the same on the Defendants via e-mail. Plaintiffs counsel had until 12:00 p.m. on 24 July 2024 to file a certification to that effect. The Court also directed the Clerk of Court to serve that Order on the Defendants via mail at the address listed in the summons attached to the complaint. On 21 July, Plaintiffs’ counsel filed a certificate of service. [DE 12]. In the period between the motion and the response, Speaker Timothy Moore, in his official capacity as Speaker of the North Carolina House of Representatives, Representative Destin Hall, in his official capacity as Chairman of the Committee on Rules, Calendar, and Operations of the House, and Representative Grey Mills, in his official capacity as Chairman of Committee on Election Law and Campaign (collectively, “the Legislators”), moved to file a brief as amici curiae. [DE 26]. On 26 July 2024, the Court granted the Legislator’s motion and directed the Clerk to file their brief. [DE 31]. On 26 July 2024, Defendants responded in opposition to the Plaintiff's motion for preliminary injunction. [DE 30]. After the response, the Court received additional motions to file briefs as amicus curiae. On 27 July 2024, Clear Choice Action moved file a brief as amicus curiae in opposition to Plaintiff's motion for preliminary injunction. [DE 34]. The Court granted the motion and directed the Clerk to file Clear Choice Action’s amicus brief. [DE 41]. On 29 July 2024, the North Carolina Republican Party and the Republican National Committee moved to file a brief as amici curiae in support of Plaintiff's motion for preliminary injunction. [DE 37]. The Court granted the motion and directed the Clerk to file the attached brief. [DE 47]. Between the response and reply, Dr. Cornel West, Italo Medelius, and JFA (collectively “Intervenors”) moved to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), or, alternatively, for permissive intervention under Rule 24(b). [DE 44]. Intervenors filed a proposed complaint as required by Rule 24(c). [DE 44-1]. At the 30 July 2024 hearing on Plaintiffs’ motion for preliminary injunction, the Court announced from the bench that Intervenors’ motion to intervene would be granted in a written order to follow (this Order), and the Court allowed counsel for Intervenors to argue in support of the preliminary injunction. On 29 July 2024, Plaintiff's replied. [DE 38]. On 30 July 2024, the Court heard Plaintiffs’ motion for preliminary injunction. Counsel for Plaintiffs, NCSBE, and the Intervenors argued on their clients’ behalf. The motion for preliminary injunction [DE 8] is ripe for decision. I. Motion to Intervene Dr. Cornel West, Italo Medelius, and JFA (collectively, “Intervenors’”) move to intervene in this action as “of right” under Federal Rule of Civil Procedure 24(a)(2), or, in the alternative, to permissively intervene under Rule 24(b)(1)(b). Under Rule 24(a)(2), “the court must permit anyone to intervene who (1) [o]n timely motion, (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impeded the movant’s ability to protect its interest, (3) unless existing parties adequately represent that 10 interest.” Berger v. N.C. State Conf. of the NAACP, 597 U.S. 179, 190 (2022) (quoting Fed. R. Civ. P. 24(a)(2)). The Court concludes that Intervenors have satisfied this standard. Accordingly, they are permitted to intervene as plaintiffs. First, the intervenor-plaintiff's motion is timely. “Timeliness is a central consideration when deciding a motion to intervene, and a movant’s failure to seek intervention in a timely manner is sufficient to justify denial of such motion.” Scott v. Bond, 734 F. App’x 188, 191 (4th Cir. 2018). Timeliness is subject to the district court’s discretion. Alt v. EPA, 758 F.3d 588, 591 (4th Cir. 2014). District courts considering timeliness look at three factors: (1) how far the underlying suit has progressed; (2) prejudice to the parties from any delay; and (3) why the movant was tardy. Jd. No need to dwell on timeliness here given the suit has only just begun. The Motion to Intervene was filed before Plaintiff's filed their reply brief, a short window considering the accelerated briefing schedule. As a result, the Court finds no prejudice to the Defendants and there is no tardiness that needs explanation. Second, intervenors have an interest that is the subject of the action and are so situated that disposing of the action may impair or impede their ability to protect their interests as a practical matter. “While Rule 24(a) does not specific the nature of the interest required for a party to intervene as a matter of right the Supreme Court has recognized that ‘what is obviously meant is significantly protectable interest.” Teague v. Bakker, 931 F.2d 259, 261 (4th Cir. 1991) (quoting Donaldson vy. United States, 400 U.S. 57, 531 (1971) (cleaned up)). A “significantly protectable interest” can be found where proposed intervenors “stand to gain or lose by the direct legal operation of the district court’s judgment.” /d. Intervenors’ core interests, indeed their survival as players in the 2024 general election, are at stake here. They directly stand to either gain or lose 11 because of the Court’s judgment. If this Court enjoins the Board, JFA and its candidates can appear on the ballot; if this Court concludes that no injunction is warranted, JFA will be effectively shut out of the election. Therefore, the Court finds that Intervenors’ have demonstrated the sufficiency of their interest relating to the subject matter of the action and that interest would be practically impaired if Intervenors were denied the ability to intervene. Third, the existing parties do not adequately represent Intervenors’ interest. This requirement has been described as “presenting proposed intervenors with only a minimal challenge.” Berger, 596 US. at 195; see also Teague, 931 F.2d at 262 (reversing district court’s ruling on intervention as of right in part because “district court failed to heed the Supreme Court’s determination that the burden on the applicant of demonstrating a lack of adequate representation should be treated as minimal.” (citation and internal quotation marks omitted)). Intervenors argue that Plaintiffs—North Carolina voters who signed the petition to certify JFA as a new political party—