United States District Court, E.D. North Carolina, Western Division
JAMES ALLEN POINDEXTER, JERRY JONES, GREGORY HOLT, and CONSTITUTION PARTY OF NORTH CAROLINA, Plaintiffs,
KIM WESTBROOK STRACH, in her official capacity as the Executive Director of the North Carolina State Board of Elections and Ethics Enforcement, Defendant.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiffs' motion for
permanent injunction (DE 27), defendant's motion to
dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) (DE 29), and
plaintiffs' motion for attorney's fees (DE 35). The
issues raised have been briefed fully, and in this posture
are ripe for ruling. For the reasons stated below,
plaintiffs' motion for permanent injunction is denied as
moot, defendants' motion to dismiss is granted, and
plaintiffs' motion for attorney's fees is granted in
part and denied in part.
OF THE CASE
Constitution Party of North Carolina and its candidates,
plaintiffs James Allen Poindexter (“Poindexter”),
Jerry Jones (“Jones”), and Gregory Holt
(“Holt”), filed suit on July 20, 2018, against
defendant Kim Westbrook Strach, in her official capacity as
the Executive Director of the North Carolina State Board of
Elections and Ethics Enforcement (“Board”),
alleging N.C. Gen. Stat. § 163A-953, as recently amended
by 2018 North Carolina Session Law 2018-13, § 3.4,
effective June 20, 2018, (“S.L. 2018-13”), is
unconstitutional as applied to plaintiffs in that this
recently enacted law has been applied retroactively, removing
plaintiffs from the ballot for the upcoming North Carolina
general elections in 2018 where plaintiffs were otherwise
qualified and had been approved to appear on the ballot.
Plaintiffs challenge the legislation on the grounds that it
violates plaintiffs' rights of free speech and
association as protected by the First and Fourteenth
Amendments to the Constitution and rights of due process
under the Fourteenth Amendment to the Constitution.
Plaintiffs seek injunctive and declaratory relief pursuant to
42 U.S.C. § 1983 and 28 U.S.C. § 2201.
August 7, 2018, plaintiffs filed motion for preliminary
injunction. Approximately two weeks later, the court granted
plaintiffs' motion for preliminary injunction, enjoining
defendant during the pendency of this litigation from
enforcing S.L. 2018-30 against plaintiffs or otherwise
issuing or causing any applicable county Board of Elections
to issue any official state publication to the voting public
which does not have plaintiffs Poindexter, Jones, and Holt
listed on the ballot.
October 1, 2018, plaintiffs filed the instant motion for
permanent injunction, requesting that this court permanently
enjoin defendant from retroactively applying S.L. 2018-30 as
to plaintiffs for North Carolina's 2018 general election,
and allow plaintiffs Poindexter, Jones, and Holt to be given
ballot access for the 2018 general election. The same day,
defendant filed the instant motion to dismiss, arguing that
the case was moot because plaintiffs had been included on the
2018 general election ballot. Plaintiffs responded in
opposition, arguing that the election had not been held yet
and that their requests for declaratory and injunctive relief
for the 2018 general election still presented a live
November 6, 2018, plaintiffs moved for attorney's fees,
submitting declarations from Elizabeth Martineau
(“Martineau”), Mark Henkle
(“Henkle”), and Jason Benton
(“Benton”), together with client invoices
identifying hours billed and services rendered by Martineau
and Henkle. Defendant responds in opposition to the motion,
arguing that the rate billed for services is not reasonable,
and that the amount of time billed is not reasonable.
OF THE FACTS
parties do not disagree on the material facts. On or about
June 6, 2018, the Constitution Party of North Carolina became
a recognized political party under the elections laws of
North Carolina. (Compl. (DE 1) ¶ 10). The Constitution
Party of North Carolina, through its representatives, timely
filed with the Board more than the required amount of
petition signatures, as well as more than 200 signatures from
more than three congressional districts. (Id.). The
Board then voted unanimously to recognize the Constitution
Party of North Carolina as the state's newest political
June 6, 2018, this party did not have access to the ballot in
North Carolina and could not nominate candidates.
(Id.). Likewise, voters could not register to vote
as a Constitution Party of North Carolina voter.
(Id. ¶ 11). Prior to this party becoming
recognized under the elections laws of North Carolina, no
voter in North Carolina could affiliate with the party in
that voter's registration. (Id. ¶ 12).
elections in North Carolina for 2018 occurred on May 8, 2018,
with options for second primaries occurring after June 27,
2018, or July 17, 2018. (Id. ¶ 13). Prior to
the ballot access recognition of the Constitution Party of
North Carolina, plaintiff Poindexter ran for the office for
North Carolina House of Representatives, District 90, in the
Republican Party primary election and lost. (Id.
¶ 14). Similarly, plaintiff Holt ran for office for
Craven County Board of Commissioners, District 1, in the
Republican Party primary election and lost. (Id.
¶ 15). Finally, plaintiff Jones ran for office for
Greene County Board of Commissioners, District 3, in the
Democratic Party primary election and lost. (Id.
to the election laws governing newly recognized parties, the
Constitution Party of North Carolina was not permitted to
participate in the primary elections and was required to
nominate its candidates by convention. (Id. ¶
17). After the Constitution Party of North Carolina held its
convention, it submitted its candidate list, which included
plaintiffs Poindexter, Jones, and Holt. (Id. ¶
18). The candidates were accepted by the Board.
about June 5, 2018 the North Carolina General Assembly passed
Senate Bill 486, “An Act to Make Various Changes
Related to Election Laws, ” that in part modified the
provisions of the election law governing the participation of
new political parties in the general election. (Id.
¶ 19). The bill went to the Governor for signing or for
veto. (Id.). On or about June 15, 2018, the Governor
vetoed Senate Bill 486, stating “[c]ontinued election
meddling for partisan advantage weakens public
North Carolina General Assembly, on or about June 20, 2018,
overrode the Governor's veto and passed Senate Bill 486
into law as S.L. 2018-13. (Id. ...