301 F. Supp. 3d 612
E.D.N.C.2017Background
- VIP-NC (plaintiff) sues Wake County Board of Elections (WCBOE) under Section 8 of the NVRA, seeking declaratory and injunctive relief and fees for alleged failures in voter list maintenance and records disclosure.
- VIP-NC sent a written notice (June 2, 2016) copied to North Carolina SBOE executive director alleging ongoing over-registration (registration > eligible voting-age citizens) and requesting public records; suit filed 46 days later.
- WCBOE moved to dismiss under Rule 12(b)(6); three individuals intervened and moved to dismiss Count I. The court treated WCBOE’s motion as Rule 12(c) but applied the Rule 12(b)(6) standard.
- Key factual allegations: Wake County registration rate exceeded ~104% based on 2014 EAC/Census data and SBOE figures; WCBOE allegedly did not use available tools (e.g., jury-excusal data) to identify noncitizens/nonresidents or obsolete addresses.
- Defendants argued plaintiff sued the wrong party (NVRA duties are state-level), failed to satisfy NVRA notice timing, relied on stale/insufficient data, and that the State’s “safe-harbor” postal-change program and statutory removal procedures could explain high registration rates.
- Court denied the motions to dismiss, holding VIP-NC plausibly alleged ongoing NVRA violations, proper notice was given, WCBOE is a proper defendant under state law obligations, and factual defenses (safe-harbor, two-election removal rule) are premature on a Rule 12 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WCBOE is a proper NVRA defendant | WCBOE performs county-level list maintenance under NC law and thus may be sued | NVRA duties are phrased to states; only state officials are proper defendants | WCBOE is a proper defendant because state law assigns county boards direct list-maintenance duties |
| Whether NVRA notice requirement was satisfied | VIP-NC’s June 2 letter (copied to SBOE exec.) provided notice of ongoing violation; suit filed within proper window | Letter was too close to primary; alleged violations occurred earlier so 90-day wait required | Notice satisfied: VIP-NC plausibly alleged ongoing violation, so 46-day filing complied with §20510(b) timing rules |
| Whether allegations plausibly show failure to make a "reasonable effort" at list maintenance | Alleged registration rate >104% (Census/EAC and SBOE data) plus failure to use available jury-excusal data supports inference of inadequate program | Data is stale/oversimplified; high registration may be explained by statutory two-election removal delay and other legitimate reasons | Allegations (data + failure to use available tools) are sufficient at pleading stage to state a plausible NVRA claim |
| Whether the NVRA "safe-harbor" (Postal Service change-of-address program) bars the claim | VIP-NC alleges facts indicating WCBOE may not be making reasonable efforts despite available programs | SBOE’s adopted quarterly NCOA comparison and procedures potentially meet §20507(c)(1) safe-harbor | Application of safe-harbor is fact-based and premature on Rule 12; cannot be resolved on dismissal |
Key Cases Cited
- Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500 (4th Cir.) (Rule 12(b)(6) pleading standard explanation)
- Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331 (4th Cir.) (NVRA’s purposes and framework)
- Harkless v. Brunner, 545 F.3d 445 (6th Cir.) (state responsibility under NVRA; delegation to local offices does not absolve state)
- National Council of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir.) (NVRA notice timing rules and pleading an ongoing violation)
- Bellitto v. Snipes, 221 F.Supp.3d 1354 (S.D. Fla.) (local election official may be proper NVRA defendant where state law gives local duties)
- Am. Civil Rights Union v. Martinez-Rivera, 166 F.Supp.3d 779 (W.D. Tex.) (reliability of census data and pleading NVRA list-maintenance claim)
- Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401 (4th Cir.) (12(b)(6) and 12(c) standards are functionally same)