Filed Date: Nov. 21, 2016
Closed Date: Dec. 21, 2016
Clearinghouse coding complete
On November 21, 2016, the CEO of the Civitas Institute filed a complaint in the U.S. District Court for the Eastern District of North Carolina seeking declaratory and injunctive relief restraining the North Carolina State Board of Elections (the “Board”), the chief state election official of the Board and five members of the Board (collectively, the “State Defendants”) from counting and certifying votes cast in the November 2016 general election via same-day registration (“SDR”) until all SDR ballots could be properly verified. The plaintiff alleged that the State Defendants’ were in violation of both the National Voter Registration Act 1993 (“NVRA”), 42 U.S.C. § 1973gg-6 and 42 U.S.C § 1983 in failing to remove the names of ineligible SDR voters from the voting rolls if an SDR registrant had failed to properly respond to a notice mailed to the SDR registrant’s address and that such action deprived the plaintiff of his right to equal protection of the laws guaranteed by the Fourteenth Amendments Due Process and Equal Protection Clause. The plaintiff was represented by Bowers Law Office LLC and Gammon, Howard & Zeszotarski PLLC. The case was assigned to District Judge James C. Denver, III.
Pursuant to N.C. Gen. Stat. § 163-82.6A, North Carolina utilized SDR voting for the general election on November 8, 2016 which enabled voters to cast a ballot during the early voting period from October 27, 2016 to November 5, 2016. On the plaintiff’s case, based on the statutory requirements of N.C. Gen. Stat. § 163-82.7 and the guidelines imposed by the Board, the verification of an SDR application to vote could take up to 30 days, assuming that a county board of elections promptly mails the first notice to the applicant. If a county board of elections does not do so, the time period for completing verification would be extended. The plaintiff alleged that the Board’s intended certification of the general election results on November 29, 2016, prior to the completion of the SDR verification process, meant that ballots from unverified registrants via the SDR process would be counted thereby diluting the votes of eligible non-SDR voters.
At the time the plaintiff had filed his complaint, it had been thirteen days since the 2016 general election and over nine years since the passage of N.C. Gen. Stat. § 163-82.6A to Article 7A of Chapter 163 of the North Carolina General Statutes.
On November 23, 2016, the plaintiff filed a Motion for Preliminary Injunction restraining the defendants from including any ballots cast by the SDR method of voting in the final statewide vote count in North Carolina that either (a) failed the mail verification process under N.C. Gen. Stat § 163-82.7; or (b) had yet to be verified by the mail verification process under N.C. Gen. Stat § 163-82.7. The plaintiff requested an expedited hearing on this motion to resolve this matter so that all properly verified SDR ballots could be timely counted and certified for inclusion in the statewide vote count.
Later that day, on November 23, 2016, The League of Women Voters of North Carolina, North Carolina A. Philip Randolph Institute, Common Cause North Carolina and six individuals (the “LWV Defendant-Intervenors”) moved to intervene and sought to dismiss the plaintiff’s action and oppose any requested court-ordered injunction relating to North Carolina’s SDR procedure. The LWV Defendant-Intervenors sought to intervene to ensure that the clear ruling of the Fourth Circuit in League of Women Voters v North Carolina, 831 F.3d 204, 237 (4th Cir. 2016), which upheld North Carolina’s utilization of SDR, was applied correctly to prevent discriminatory and disparate treatment of SDR registrants and regular voters. The LWV Defendant-Intervenors’ motion to intervene was granted on 29 November 2016.
On November 29, 2016, the North Carolina State Conference of the National Association for the Advancement of Colored People (“NC NAACP”) filed a Motion to Intervene and sought to join the LWV Defendant-Intervenors in moving for dismissal of the plaintiff’s complaint, as well as to oppose the plaintiff’s Motion for Preliminary Injunction. The NC NAACP sought to intervene on similar grounds to the LWV Defendant-Intervenors, namely that NC NAACP had been a plaintiff in two prior related actions: (i) NC NAACP v. McCrory, 831 F.3d 204, 237 (4th Cir. 2016), in which the Fourth Circuit held that the removal of North Carolina’s SDR by North Carolina’s Voter Information Verification Act of 2013 was intentionally discriminatory in violation of the Fourteenth Amendment and the Voting Rights Act of 1965; and (ii) NC NAACP v. N.C. State Board of Elections, 2016 WL 6581284, in which the US District Court for the Middle District of North Carolina granted emergency preliminary injunctive relief to prevent the Board from purging large numbers of registered voters from the voter rolls on the basis of undeliverable mail in violation of NVRA, 52 U.S.C. § 20501-20511. Accordingly, NC NAACP submitted that it should be provided with an opportunity to intervene in circumstances where the present action could impact the effect of those decisions and result in the disenfranchisement of NC NAACP members and the voters that NC NAACP members assist because a significant number of the SDR registrants whose votes would potentially be discounted would likely be African-American. The NC NAACP’s motion to intervene was granted on November 30, 2016.
On November 30, 2016, the LWV Defendant-Intervenors filed a motion to dismiss all claims in the plaintiff’s complaint. The LWV Defendant-Intervenors submitted that the action must be dismissed on the basis of collateral estoppel because the Fourth Circuit had already upheld North Carolina’s SDR in NC NAACP v. McCrory and the plaintiff failed to state a cause of action under the NVRA, 52 U.S.C. § 20501-20511 or the Equal Protection Clause of the Fourteenth Amendment. Additionally, because the November 2016 general election was pending imminent statewide certification, it was submitted that no relief could be granted consistent with the equitable rules established by the United States Supreme Court in Purcell v. Gonzalez, 549 U.S. 1 (2006).
On December 2, 2016, the NC NAACP filed a filed a motion to dismiss or summarily deny the plaintiff’s motion for a preliminary injunction on the basis that the plaintiff failed to file the requisite supporting memorandum setting forth the legal and evidentiary basis for the motion. Accordingly, the NA NAACP requested that the preliminary injunction hearing scheduled on 8 December 2016, be cancelled. It was submitted it was only until after the election results became clear did the plaintiff file suit despite the fact that the plaintiff had some four months to file the litigation since SDR was reinstated following the Fourth Circuit decision in NC NAACP v. McCrory.
On December 3, 2016, the plaintiff filed a memorandum in support of its complaint for declaratory and injunctive relief. The plaintiff sought to clarify that it had made a narrow request to ask the Court to bar the State Defendants from certifying the results until the SDR verification process has completed in order to ensure that all voters can be treated equally by the inclusion of only verified voters in the final counts.
On December 4, 2016, the State Defendants filed a response in support of NC NAACP’s motion to dismiss or summarily deny the plaintiff’s motion for a preliminary injunction. The State Defendants’ criticized the late filing of the plaintiff’s memorandum in support of its complaint for declaratory and injunctive relief. It was submitted that the relief now sought by the plaintiff now materially differs from the prayer for relief sought in its motion for preliminary injunction i.e. to bar the State Defendants “from including any SDR ballots in the final statewide vote count that failed the mail verification process”. While the State Defendants opposed either a full stay of certification or a certification that excludes any ballot lawfully cast, the delay in filing the supporting memorandum and the shift in the relief sought was prejudicial to the State Defendants as it was left with a matter of days to address this before the deadline for its response. It was further submitted that if the preliminary injunction hearing had to be extended beyond December 8, and following the extended deadline for the State Defendants to certify the 2016 General Election Results on December 9, 2016, then this delay would be the result of the plaintiff’s own failure to timely file its request for preliminary injunction.
On December 5, 2016, seven members of the North Carolina General Assembly filed a motion for leave to file a brief Amicus Curaie in support of the NC NAACP’s motions for dismissal of the plaintiff’s complaint and the plaintiff’s preliminary injunction. The proposed Amici addressed the legislative intent behind N.C. Gen. Stat. § 163-82.6A as the legislators during the passage of the original SDR statute. It was submitted that, contrary to the plaintiff’s allegations, N.C. Gen. Stat. § 163-82.6A complies with the voter registration requirements as set forth in N.C. Gen. Stat. § 163-82.7.
Also, on December 5, 2016, the Plaintiff filed a motion to withdraw its request for a preliminary injunction on the basis that rulings of the Board on protests, challenges and recounts since the filing of its injunction request have changed the exigencies of the harm analysis relevant to granting such swift relief. The court granted this motion later that day. That same day, but prior to the court order allowing the withdrawal of the plaintiff’s motion for preliminary injunction, the State Defendants filed a response in opposition asking the court to consider the recent findings regarding the use of SDR across the state of North Carolina in weighing the balance of equities to deny the relief sought.
On December 20, 2016, the plaintiff voluntarily dismissed this action. The case is now closed.
Summary Authors
LFAA (8/19/2025)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5686259/parties/de-luca-v-north-carolina-state-board-of-elections/
Dever, James C. (North Carolina)
Bowers, Karl S. (North Carolina)
Earls, Anita S. (North Carolina)
Geer, Martha A. (North Carolina)
Hair, Penda D. (North Carolina)
Earls, Anita S. (North Carolina)
Geer, Martha A. (North Carolina)
Hair, Penda D. (North Carolina)
Joyner, Irving L. (North Carolina)
Jr, James Bernier (North Carolina)
Kang, Leah J. (North Carolina)
Lawson, Joshua Leo (North Carolina)
Love, Katelyn Rose (North Carolina)
Peters, Alexander McClure (North Carolina)
See docket on RECAP: https://www.courtlistener.com/docket/5686259/de-luca-v-north-carolina-state-board-of-elections/
Last updated Aug. 8, 2025, 7:30 a.m.
State / Territory: North Carolina
Case Type(s):
Special Collection(s):
Law Firm Antiracism Alliance (LFAA) project
Key Dates
Filing Date: Nov. 21, 2016
Closing Date: Dec. 21, 2016
Case Ongoing: No
Plaintiffs
Plaintiff Description:
The CEO of the Civitas Institute, also a citizen of North Carolina and a registered voter of Wake County, North Carolina
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
The North Carolina State Board of Elections, State
The chief state election official of the North Carolina State Board of Elections, State
Five members of the North Carolina State Board of Elections, State
Case Details
Causes of Action:
Available Documents:
Outcome
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Content of Injunction:
Preliminary relief request withdrawn/mooted
Issues
Voting: