Filed Date: Jan. 12, 2021
Closed Date: Feb. 2, 2021
Clearinghouse coding complete
On July 1, 2020, the North Carolina legislature ratified a bill, creating two new district court seats in Wake County District 10-F to become extant January 1, 2021. The law mandated an election for the new seats be held during the November 3, 2020 general election. Ballots in District 10-F for one seat presented two candidates to voters: Tim Gunther and Beth Tanner. On October 29, 2020, a District 10-F voter filed a protest of Gunther’s candidacy with the Wake County Board of Elections (“Wake Board”) asserting Gunther was not a valid resident of the district. The Wake Board did not hear the complaint prior to November 3, 2020. Following the November 3, 2020 general election, initial results showed Gunther garnered roughly 56% of the vote. The Wake Board heard the protest on November 18, 2020. On November 19, 2020, the Wake Board entered an Order finding Gunther did not live in the relevant district and was therefore ineligible to be certified as the winner. The Wake Board Order concluded by referring the matter to the North Carolina Board of Elections (“State Board”). On December 18, 2020, Tanner, argued to the State Board she should be declared the winner of the election because she was the only qualified candidate on the ballot. The State Board entered a December 21, 2020 order rejecting Tanner’s arguments and assigning the seat to the Governor for appointment.
On January 12, 2021, Tanner and two registered voters of District 10-F (collectively “Plaintiffs”) filed this lawsuit against the governor of North Carolina, the chair of the State Board and three members of the State Board (collectively “Defendants”). Plaintiffs sought injunctive relief under 42 U.S.C. § 1983, alleging violations of the Due Process Clause and the Equal Protection Clause of the United States Constitution. Specifically, they claimed that the State Board’s order giving the Governor authority to fill a newly-created judgeship in District 10-F by appointment derogated the recent election results and Plaintiffs’ Constitutional and statutory rights. The case was assigned to District Judge James C. Dever, III.
In their request for an injunction, Plaintiffs outlined their desired relief, which included: (1) a declaratory judgment from the Court that the State Board’s order violated the Due Process Clause and the Equal Protection Clause and was invalid; (2) a preliminary and a permanent injunction barring the Governor from appointing anyone to the District 10-F seat for the appropriate period of time; (3) an order from the Court that the State Board (and its subordinate in Wake County) stage a new election for the District 10-F seat with all deliberate speed; and (4) an award of reasonable costs and attorneys’ fees under 42 U.S.C. § 1988.
On January 15, 2021, Plaintiffs filed a motion for a temporary restraining order (“TRO”). Plaintiffs argued that their lawsuit would succeed on the merits for four reasons. First, the State Board’s reliance upon N.C. Gen. Stat. § 128-7.1 in its Order was textually unjustifiable. Plaintiffs reasoned that Section 128-7.1—which only applies when a candidate becomes disqualified after election day—was inapplicable because Gunther was never elected to the applicable District 10-F seat. Therefore, applying Section 128-7.1 essentially abridged Plaintiffs’ right to vote. Second, the Constitutional harms Plaintiffs suffered would be irreparable if the Governor filled the relevant seat by appointment. Specifically, if there was a new election after the seat was filled by the Governor’s appointment, Plaintiffs would have to campaign against an incumbent with the electoral benefits of incumbency. Additionally, the legislature gave the voters the power to fill the seat by election, and that intent would be frustrated if the TRO was not granted. Third, the equities were firmly in Plaintiffs’ favor. Plaintiffs argued that Gunther, a member of the State Board, would be able to vote in the straw poll that would determine the names of the top five vote-getters to be forwarded to the Governor. Plaintiffs reasoned that this would be an outrageous turn of events. Fourth, an injunction restoring the right to vote in a new election for the instant seat was in the public interest. Plaintiffs pointed to the potential issue of the validity of acts and rulings by an illegitimate judge and argued that the public had an interest in how and when the seat would be filled.
Defendants responded to the TRO memorandum on January 19, 2021, stating that (1) Defendants were entitled to Eleventh Amendment immunity, (2) the Court should decline to exercise jurisdiction as there was a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances, and (3) the Court should decline to exercise jurisdiction because adequate state court review was available such that a federal court sitting in equity should abstain from reviewing cases involving difficult questions of state law or a state’s administration of its own regulatory schemes. Defendants also argued that Plaintiffs had no likelihood of success on the merits of their claims, Plaintiffs did not demonstrate they would suffer irreparable harm, and the equities of the parties and the public interest weight against an injunction. Specific to the likelihood of success, Defendants claimed principles of statutory construction and North Carolina case law both support the State Board’s Order to declare the office vacant and direct that the vacancy be filled by appointment pursuant to state law. As to the remaining arguments, Defendants argued it was entirely speculative to think that the incumbent would have an advantage, and there was a significant cost in both manpower and funds, as well as a potential risk to staff, volunteers, and voters if a special election was the ultimate outcome of the litigation.
On January 22, 2021, Judge Dever III held a hearing on Plaintiffs’ motion for a TRO. During the hearing, Judge Dever III found that Plaintiffs failed to meet the standard necessary for a TRO. The same day, the Judge Dever III filed an order denying Plaintiff’s motion for a TRO, incorporating by reference the Judge’s reasoning as explained in open court. There is no order or other document that provides any additional details regarding Judge Dever’s reasoning.
On February 2, 2021, counsel for Plaintiffs filed a notice of voluntary dismissal, without prejudice against Defendants. No appeal was filed.
This case is now closed.
Summary Authors
(12/1/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/29099242/parties/tanner-v-cooper/
Dever, James C. (North Carolina)
Howard, Joshua Brian (North Carolina)
Steed, Terence (North Carolina)
See docket on RECAP: https://www.courtlistener.com/docket/29099242/tanner-v-cooper/
Last updated Dec. 17, 2025, 5:25 a.m.
State / Territory:
Case Type(s):
Special Collection(s):
Law Firm Antiracism Alliance (LFAA) project
Key Dates
Filing Date: Jan. 12, 2021
Closing Date: Feb. 2, 2021
Case Ongoing: No
Plaintiffs
Plaintiff Description:
A candidate for one of the district court seats in Wake County District 10-F and two registered votes of District 10-F.
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Governor of North Carolina, State
Members of the North Carolina Board of Elections, State
Case Details
Causes of Action:
Declaratory Judgment Act, 28 U.S.C. § 2201
Constitutional Clause(s):
Due Process: Procedural Due Process
Other Dockets:
Eastern District of North Carolina 5:21-cv-00014
Available Documents:
Outcome
Prevailing Party: Defendant
Relief Granted:
Source of Relief:
Issues
Voting: