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Voter Integrity Project NC, Inc. v. Wake County Board of Elections

United States District Court, E.D. North Carolina, Western Division

February 21, 2017



          W. Earl Britt Senior U.S. District Judge.

         This matter is before the court on the motions to dismiss of defendant Wake County Board of Elections (“WCBOE”) and defendant-intervenors Jennifer Morris, Edward Jones, and Siobhan Millen. (DE ## 14, 27.) Plaintiff Voter Integrity Project NC, Inc. (“VIP-NC”) has filed responses in opposition to the motions. (DE ## 19, 30.) Defendant-intervenors filed a reply. (DE # 33.) This matter is therefore ripe for disposition.

         I. BACKGROUND

         VIP-NC is an organization which “has dedicated significant time and resources to ensure that voter rolls in the state of North Carolina, and in Wake County, are free from ineligible registrants, non-citizens, individuals who are no longer residents and individuals who are registered in more than one location.” (Compl., DE # 1, ¶ 3.) On 18 July 2016, it filed this action alleging that WCBOE has violated Section 8 of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20507, and seeks declaratory and injunctive relief and attorney's fees.

         On 10 August 2016, WCBOE filed its answer, (DE # 13), and motion to dismiss the complaint for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). On 3 October 2016, defendant-intervenors, three individuals who are actively engaged in voter registration and related work, filed a motion to intervene. (DE # 22.) On 1 December 2016, the court allowed that motion. (DE # 26.) The following day, defendant-intervenors filed their motion to dismiss pursuant to Rule 12(b)(6).


         Both motions to dismiss are filed pursuant to Rule 12(b)(6).[1]

In a Rule 12(b)(6) context, the reviewing court must determine whether the complaint alleges sufficient facts “to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” This directive ordinarily limits a court's review to the “well-pled facts in the complaint[, which it must view] in the light most favorable to the plaintiff.” While no absolute bar exists, a motion to dismiss under Rule 12(b)(6) does not typically resolve the applicability of defenses to a well-pled claim.

Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (citations omitted) (alteration in original). With this standard in mind, the court will consider VIP-NC's NVRA claims.

The NVRA reflects the view of Congress that the right to vote “is a fundamental right, ” that government has a duty to “promote the exercise of that right, ” and that discriminatory and unfair registration laws can have a “damaging effect on voter participation” and “disproportionately harm voter participation by various groups, including racial minorities.” Congress enacted the NVRA in order to “increase the number of eligible citizens who register to vote” in federal elections, “enhance[ ] the participation of eligible citizens as voters, ” “protect the integrity of the electoral process, ” and “ensure that accurate and current voter registration rolls are maintained.”

Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 334 (4th Cir. 2012) (citing 42 U.S.C. § 1973gg (now codified at 52 U.S.C. § 20501)) (alteration in original). Section 8 of the Act, which is at issue here, imposes various duties and obligations regarding voter registration. The NVRA provides a private right of action to “[a] person who is aggrieved by a violation of [the NVRA].” 52 U.S.C. § 20510(b)(1). The aggrieved party must first provide “written notice of the violation to the chief election official of the State involved, ” id., unless “the violation occurred within 30 days before the date of an election for Federal office, ” id. § 20510(b)(3). “If the violation is not corrected within 90 days after receipt of a notice . . ., or within 20 days after receipt of the notice if the violation occurred within 120 days before the date of an election for Federal office, ” the aggrieved person may file a suit. Id. § 20510(b)(2).

         VIP-NC alleges WCBOE violated Section 8 of the NVRA. In Count I, VIP-NC asserts that WCBOE has failed to make a reasonable effort to conduct voter list maintenance under § 20507(a)(4).[2] In Count II, it asserts that WCBOE has failed to respond to VIP-NC's written requests for data and failed to provide records in accordance with § 20507(i).

         WCBOE initially argues that because the mandates of the NVRA are directed to states, it, as a local government unit, is not a proper party. WCBOE is correct that the particular subsections at issue are phrased in terms of state obligations. “[E]ach State” is required, “[i]n the administration of voter registration for elections for Federal office, . . . [to] conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of-(A) the death of the registrant; or (B) a change in the residence of the registrant . . . .”). 52 U.S.C. § 20507(a)(4). “Each State” must also “maintain for at least 2 years and shall make available for public inspection . . . all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters . . . .” Id. § 20507(i)(1). However, the NVRA also contemplates local government involvement in carrying out the State's obligations. See 52 U.S.C. § 20501(a)(2) (finding “it is the duty of the Federal, State, and local governments to promote the exercise of that right” to vote), (b)(2) (recognizing one of the purposes of the NVRA is “to make it possible for Federal, State, and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office”).

         In North Carolina, the State Board of Elections (“SBOE”) is charged with adopting a program to comply with the NVRA's list maintenance requirement. See N.C. Gen. Stat. § 163-82.14(a). However, North Carolina law also designates local county boards of elections as the entities directly responsible for performing list maintenance in accordance with that program. See id. § 163-82.14(a) (“Each county board of elections shall conduct systematic efforts to remove names from its list of registered voters in accordance with this section and with the program adopted by the State Board.”). Pertinent here, each county board of elections is required to remove from its voter registration records any person who is listed as deceased on a monthly report from SBOE, id. § 163-82.14(b); to “conduct a systematic program to remove from its list of registered voters those who have moved out of the county, and to update the registration records of persons who have moved within the county, id. § 163-82.14(d); and to remove a person from its list who has moved after following statutorily mandated procedures, id. Based on WCBOE's explicit list maintenance obligations, the court concludes that WCBOE is a proper party. See Bellitto v. Snipes, No. 16-cv-61474-BLOOM/Valle, 2016 WL 6248602, at *3-5 (S.D. Fla. Oct. 26, 2016) (denying motion to dismiss NVRA Section 8 claims against the defendant local election official where the plaintiffs had not sued the Secretary of State or the State of Florida and recognizing that because the local election official ...

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