United States District Court, M.D. North Carolina
NORTH CAROLINA STATE CONFERENCE OF THE NAACP, MOORE COUNTY BRANCH OF THE NAACP, JAMES EDWARD ARTHUR, SR., JAMES MICHAEL BROWER, GRACE BELL HARDISON, and JAMES L. COX, Plaintiffs,
THE NORTH CAROLINA STATE BOARD OF ELECTIONS,  A. GRANT WHITNEY, JR., in his official capacity as Chairman of the State Board of Elections, RHONDA K. AMOROSO, in her official capacity as Secretary of the State Board of Elections, KIM WESTBROOK STRACH, in her official capacity as Executive Director of the State Board of Elections, JOSHUA D. MALCOLM in his official capacity as Member of the State Board of Elections, JAMES BAKER, in his official capacity as Member of the State Board of Elections, MAJA KRICKER, in her Official capacity as Member of the State Board of Elections, et al., Defendants.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, DISTRICT JUDGE.
the Court are three motions to dismiss Plaintiffs'
Complaint. The first is brought by the Beaufort County Board
of Elections, its Chairman, Secretary, Director, and a Member
of the Board, each named in their official capacities
(collectively “Beaufort Defendants”), (ECF No.
56); the second by the Cumberland County Board of Elections,
its Chairperson, Secretary, Director, and a Member of the
Board, each named in their official capacities (collectively
“Cumberland Defendants”), (ECF No. 59); and the
third by the Moore County Board of Elections, its Chairman,
Secretary, Director, and a Member of the Board, each named in
their official capacities (collectively “Moore
Defendants”), (ECF No. 61). Each county's motion is
brought pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject-matter jurisdiction. For the reasons that
follow, the Cumberland and Moore Defendants' motions are
granted in part and denied in part; and the Beaufort
Defendants' motion is denied in its entirety.
the North Carolina State Conference of the NAACP and the
Moore County Branch of the NAACP (collectively
“Organizational Plaintiffs”), as well as James E.
Arthur, Sr., James M. Brower, Grace B. Hardison, and James L.
Cox (collectively “Individual Plaintiffs”),
commenced this action seeking declaratory and injunctive
relief, alleging violations of Section 8 of the National
Voter Registration Act, (the “NVRA”), 52 U.S.C.
§ 20507(a), the Voting Rights Act, 52 U.S.C. §
10301, and the Equal Protection Clause of the Fourteenth
Amendment. (ECF No. 1 ¶¶ 5, 79.) The Complaint
alleges that the Beaufort, Cumberland, and Moore Defendants,
(collectively “County Boards”), cancelled
thousands of voter registrations based on a single mailing
sent to each of the voters, which was returned as
undeliverable. (Id. ¶ 3.) Further, Plaintiffs
allege that “[i]n many cases, voters purged by [the
County Boards] still reside at the addresses where they are
registered to vote, or have moved within the county and
remain eligible to vote there.” (Id.)
October 31, 2016, Plaintiffs filed an Amended Application for
Temporary Restraining Order, (ECF No. 21), requesting that
this Court enjoin Defendants from, among other things:
“(1) cancelling the registration of voters through the
challenge procedure set forth in N.C. G.S. § 163-85 and
§ 163-86, when those challenges are based on change of
residency and the State has neither received written
confirmation from the voter of a change in residence outside
of the county, nor complied with the NVRA's notice
requirement and two-election cycle waiting period; (2) using
the challenge procedure set forth in N.C. G.S. § 163-85
and § 163-86 to remove voters from the rolls based on
change of residency information in the 90 days preceding a
federal election; and (3) holding hearings or taking any
other actions to process challenges filed under those
provisions in the circumstances identified.” (ECF No.
21-1 at 31.) This Court held a hearing on Plaintiffs'
request on November 2, 2016.
November 4, 2016, this Court entered a Memorandum Opinion,
(ECF No. 42), concluding that Defendants' actions as
alleged by Plaintiffs had likely violated the NVRA (ECF No.
42 at 21),  and simultaneously entered a Preliminary
Injunction,  (ECF No. 43). The injunction ordered,
among other things, that (1) Defendants shall “restore
the voter registrations that were canceled during the 90-day
period preceding the November 8, 2016” general election
“through application of the challenge procedure set
forth in N.C. Gen. Stat. §§ 163-85 and 163-86, and
. . . ensure that those voters are able to vote” in
that election; (2) Defendants were “enjoined and
restrained from canceling the registration of voters through
the challenge procedures set forth in N.C. Gen. Stat.
§§ 163-85 and 163-86” when officials had not
complied with the NVRA; and (3) “Defendant Strach shall
take all reasonable and necessary steps to ensure statewide
compliance with the NVRA consistent” with the
Court's Opinion. (ECF No. 43 at 3-5 (emphasis omitted).)
County Boards' motions to dismiss were filed on January
26, 2017. (ECF Nos. 56, 59, 61.) The Cumberland and Moore
Defendants argue that Plaintiffs lack standing in each of
their respective motions; while in all three motions, the
County Boards each contend that Plaintiffs' claims are
now moot. (ECF Nos. 57 at 10-17; 60 at 4-19; 62 at 6-19.) In
addition to Plaintiffs filing a Consolidated Opposition to
County Defendants' Motions to Dismiss, (ECF No. 69),
Defendant the North Carolina State Board of Elections, its
Chairman, Secretary, Executive Director, and Members of the
Board, each named in their official capacities (collectively
“State Defendants”), filed an Opposition to
Motions to Dismiss by County Defendants, (ECF No. 65).
motion under Rule 12(b)(1), which governs dismissals for lack
of subject-matter jurisdiction, raises the question of
“whether [the plaintiff] has a right to be in the
district court at all and whether the court has the power to
hear and dispose of [the] claim.” Holloway v. Pagan
River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th
Cir. 2012). The burden of establishing subject-matter
jurisdiction is on the plaintiff. Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). At the pleading
stage, a plaintiff can survive a motion to dismiss while
asserting only “general factual allegations of injury
resulting from the defendant's conduct” because at
this stage of a case, courts “presume that general
allegations embrace those specific facts that are necessary
to support the claim.” Beck v. McDonald, 848
F.3d 262, 270 (4th Cir.), cert. denied, 137 S.Ct.
2307 (2017) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992)). When, as here, a defendant brings a
factual challenge to the court's subject-matter
jurisdiction, “the defendant argues ‘that the
jurisdictional allegations of the complaint [are] not true,
' providing the [district] court the discretion to
‘go beyond the allegations of the
complaint.'” Id. (first alteration in
original). The court should grant the motion “only if
the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Evans, 166 F.3d at 647.
County Boards' arguments in support of their motions to
dismiss for lack of subject-matter jurisdiction are grounded
in Article III's case-or-controversy requirement. Article
III of the Constitution “limits the jurisdiction of
federal courts to ‘Cases' and ‘Controversies,
'” Beck, 848 F.3d at 269 (quoting U.S.
Const. art. III, § 2), and the doctrines of standing and
mootness derive from that limitation, White Tail Park,
Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005). The
standing determination “remains focused on whether the
party invoking jurisdiction had the requisite stake in the
outcome when the suit was filed.” Davis v.
FEC, 554 U.S. 724, 734 (2008). In contrast, “[a]
case becomes moot . . . ‘when the issues presented are
no longer “live” or the parties lack a legally
cognizable interest in the outcome.'” Pashby v.
Delia, 709 F.3d 307, 316 (4th Cir. 2013).
ensures that a plaintiff has “a personal stake in the
outcome of the controversy” that is sufficient to
warrant the “invocation of federal-court
jurisdiction.” Summers v. Earth Island Inst.,
555 U.S. 488, 493 (2009). To establish Article III standing
at the motion to dismiss stage, “a plaintiff must
plausibly allege that: ‘(1) it has suffered an injury
in fact that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.'” Liberty Univ., Inc. v. Lew,
733 F.3d 72, 89 (4th Cir. 2013) (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.
167, 180-81 (2000)). When a plaintiff seeks redress for a
prospective harm, the plaintiff can demonstrate that an
alleged injury is sufficiently imminent for standing purposes
by showing that the harm is “certainly impending”
or that the plaintiff faces a “substantial risk”
of its occurrence. Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2341 (2014). The requirement
that a plaintiff have standing to sue applies to both
individuals and organizations. White Tail Park,
Inc., 413 F.3d at 458. An organization can demonstrate
standing to sue in two ways: on its own behalf
(organizational standing) or on behalf of its members
(representational standing).See id.
plaintiff can establish organizational standing “when
it seeks redress for an injury suffered by the organization
itself.” Id. An injury is cognizable, for
organizational standing purposes, when the plaintiff alleges
that “a defendant's practices have hampered an
organization's stated objectives causing the organization
to divert its resources as a result.” Action NC v.
Strach, 216 F.Supp.3d 597, 616 (M.D. N.C. 2016) (citing
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379
plaintiff can establish “representational
standing” to sue on its members' behalf when
“(1) its own members would have standing to sue in
their own right; (2) the interests the organization seeks to
protect are germane to the organization's purpose; and
(3) neither the claim nor the relief sought requires the
participation of individual members in the lawsuit.”
S. Walk at Broadlands Homeowner's Ass'n, Inc. v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir.
2013). Applying Supreme Court precedent, the Fourth Circuit
has held that the first requirement of representational
standing-demonstrating that an organization's members
would have standing to sue in their own right-requires an
organization to “make specific allegations establishing
that at least one identified member had suffered or
would suffer harm.” Id. (quoting
Summers, 555 U.S. at 498).
the Cumberland and Moore Defendants challenge this
Court's subject-matter jurisdiction on standing grounds.
(ECF No. 60 at 4-15; ECF No. 62 at 15-19.) 1. Cumberland
Defendants The Cumberland Defendants make three
arguments in support of their contention that Plaintiffs lack
standing to bring any claim against the Cumberland
Defendants. The Cumberland Defendants argue that (1)
Plaintiffs lack standing to sue the individual Cumberland
County officials who are being sued in their official
capacities on the ground that the challenged actions can only
be taken by county boards of elections, and not by individual
members of those boards, (ECF No. 60 at 14-15); (2) no
Individual Plaintiff has an injury that is fairly traceable
to the conduct of the Cumberland Defendants because
“each individual plaintiff could only have been subject
to the conduct of the Board of Elections in the county in
which the individual plaintiff was registered, ”
(id. at 6-7); and (3) the Organizational Plaintiffs
have not pled sufficient allegations to establish standing
arising from cognizable harm suffered by the organizations
themselves or a specific, identified member, (id. at
Cumberland Defendants' first two arguments require very
little discussion. As to the first contention that Plaintiffs
lack standing to sue individual county officials in their
official capacities, the Cumberland Defendants cite no legal
authority to support this argument and this Court finds none.
“[O]fficial-capacity suits ‘generally represent
only another way of pleading an action against an entity of
which an officer is an agent.'” Andrews v.
Daw, 201 F.3d 521, 525 (4th Cir. 2000) (quoting
Kentucky v. Graham, 473 U.S. 159, 165 (1985)).
“As long as the government entity [involved] receives
notice and an opportunity to respond, an official-capacity
suit is, in all respects other than name, to be treated as a
suit against the entity.” Graham, 473 U.S. at
166. Consequently, this first argument fails. As to the
Cumberland Defendants' second argument-that Individual
Plaintiffs lack standing to bring claims against them since
no Individual Plaintiff alleges that he or she was a
registered voter in Cumberland County- Plaintiffs do not
dispute the Cumberland Defendants' contention. (See
generally ECF No. 69.) Therefore, to the extent that
Individual Plaintiffs Arthur, Brower, Hardison, and Cox,
assert claims against Cumberland Defendants, the Cumberland
Defendants' motion is allowed.
Cumberland Defendants' third argument requires an
examination of the allegations in the Complaint in greater
detail. The Cumberland Defendants challenge the standing of
each Organizational Plaintiff on both organizational and
representational standing grounds. (ECF No. 60 at 7-14.)
However, these Plaintiffs do not contest that the Moore NAACP
has standing to sue the Cumberland Defendants. Plaintiffs do
argue, however, that the North Carolina NAACP has
representational standing to bring claims arising from the
harm to its members and organizational standing to bring
claims on its own behalf. (ECF No. 69 at 23-29.) The Court
will therefore only examine whether the North Carolina NAACP
has standing to assert claims against the Cumberland
North Carolina NAACP disputes the Cumberland Defendants'
contention that its representational standing claim fails
because the North Carolina NAACP cannot identify one specific
member whose voter registration was purged. (ECF No. 69 at
25-29.) Plaintiffs argue that they have specifically
identified one member, Mr. Brower, who was injured by
Defendants' challenged conduct. (Id. at 25.)
However, Plaintiffs do not contend that Mr. Brower's
injury resulted from, or is traceable to, the challenged
conduct of the Cumberland Defendants. Rather, Plaintiffs'
Complaint alleges that all of Mr. Brower's injuries
result from the conduct of the Moore Defendants. (ECF No. 1
¶ 13.) Therefore, the North Carolina NAACP cannot rely
on Mr. Brower's injuries to establish representational
standing to sue the Cumberland Defendants.
North Carolina NAACP next argues, in the alternative, that it
can establish representational standing to sue the Cumberland
Defendants on the ground that all of its members are likely
to be harmed. (ECF No. 69 at 27.) Specifically, Plaintiffs
contend that the North Carolina NAACP “has plausibly
alleged that all of its members are likely to suffer future
harm if Defendants' unlawful conduct is not enjoined, and
that allegation is independently sufficient for
[representational] standing.” (Id.) There is a
“limited exception” to the identification
requirement, which applies only when “all members of an