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Poindexter v. Strach

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

June 13, 2019

JAMES ALLEN POINDEXTER, JERRY JONES, GREGORY HOLT, and CONSTITUTION PARTY OF NORTH CAROLINA, Plaintiffs,
v.
KIM WESTBROOK STRACH, in her official capacity as the Executive Director of the North Carolina State Board of Elections and Ethics Enforcement, Defendant.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This 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.

         STATEMENT OF THE CASE

         Plaintiff 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.

         On 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.

         On 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 controversy.

         On 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.

         STATEMENT OF THE FACTS

         The 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 party. (Id.).

         Until 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).

         Primary 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. ¶ 16).[1]

         Pursuant 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. (Id.).[2]

         On or 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 confidence.” (Id.).

         The 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. ...


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