NC Democratic Party v. Phillip Berger

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:17-cv-01113-CCE-JEP. Copies to all parties and the district court. [1000269008]. [18-1150, 18-1151]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1150

NORTH CAROLINA DEMOCRATIC PARTY; CUMBERLAND COUNTY
DEMOCRATIC PARTY; DURHAM COUNTY DEMOCRATIC PARTY;
FORSYTH COUNTY DEMOCRATIC PARTY; GUILFORD COUNTY
DEMOCRATIC PARTY; MECKLENBURG COUNTY DEMOCRATIC
PARTY; ORANGE COUNTY DEMOCRATIC PARTY; WAKE COUNTY
DEMOCRATIC PARTY,
Plaintiffs - Appellees,
v.
PHILLIP E. BERGER, in his official capacity as President Pro Tempore of the
North Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker
of the North Carolina House of Representatives,
Defendants - Appellants,
and
THE STATE OF NORTH CAROLINA; THE NORTH CAROLINA
BIPARTISAN STATE BOARD OF ELECTIONS AND ETHICS
ENFORCEMENT; KIMBERLY STRACH, in her official capacity as Executive
Director of the North Carolina Bipartisan State Board of Elections and Ethics
Enforcement,
Defendants.

No. 18-1151

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NORTH CAROLINA DEMOCRATIC PARTY; CUMBERLAND COUNTY
DEMOCRATIC PARTY; DURHAM COUNTY DEMOCRATIC PARTY;
FORSYTH COUNTY DEMOCRATIC PARTY; GUILFORD COUNTY
DEMOCRATIC PARTY; MECKLENBURG COUNTY DEMOCRATIC
PARTY; ORANGE COUNTY DEMOCRATIC PARTY; WAKE COUNTY
DEMOCRATIC PARTY,
Plaintiffs - Appellees,
v.
THE STATE OF NORTH CAROLINA; THE NORTH CAROLINA
BIPARTISAN STATE BOARD OF ELECTIONS AND ETHICS
ENFORCEMENT; KIMBERLY STRACH, in her official capacity as Executive
Director of the North Carolina Bipartisan State Board of Elections and Ethics
Enforcement,
Defendants - Appellants,
and
PHILLIP E. BERGER, in his official capacity as President Pro Tempore of the
North Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker
of the North Carolina House of Representatives,
Defendants.

Appeals from the United States District Court for the Middle District of North Carolina,
at Greensboro. Catherine C. Eagles, District Judge. (1:17-cv-01113-CCE-JEP)

Argued: March 20, 2018

Decided: April 2, 2018

Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.

Vacated by unpublished per curiam opinion. Judge Motz wrote a concurring opinion.

ARGUED: D. Martin Warf, NELSON MULLINS RILEY & SCARBOROUGH LLP,
Raleigh, North Carolina; Ryan Y. Park, NORTH CAROLINA DEPARTMENT OF
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JUSTICE, Raleigh, North Carolina, for Appellants. John R. Wallace, WALLACE &
NORDAN LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Noah H.
Huffstetler, Matthew A. Abee, NELSON MULLINS RILEY & SCARBOROUGH LLP,
Raleigh, South Carolina, for Appellants Philip E. Berger and Timothy K. Moore. Joshua
H. Stein, Attorney General, James Bernier, Special Deputy Attorney General, Olga E.
Vysotskaya de Brito, Special Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants State of North
Carolina, North Carolina Bipartisan State Board of Elections and Ethics Enforcement,
and Kimberly Strach. Matthew M. Calabria, WALLACE & NORDAN LLP, Raleigh,
North Carolina, for Appellees. Edwin M. Speas, Jr., Caroline P. Mackie, POYNER
SPRUILL LLP, Raleigh, North Carolina, for Appellee North Carolina Democratic Party.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In October 2017, the North Carolina General Assembly enacted Senate Bill 656,
abolishing primary elections for state judicial elections in 2018. The North Carolina
Democratic Party, joined by several county branches (“Appellees”), filed a complaint
naming a series of legislative defendants (“Appellants”). *

The complaint sought

injunctive relief and a declaration that the statute violated Appellees’ associational rights
under the First and Fourteenth Amendments. The district court entered a preliminary
injunction on January 31, 2018. The district court enjoined the statute as applied to
appellate judicial elections. In effect, the injunction re-instituted a primary election for
those positions scheduled on May 8, 2018. The district court scheduled a trial on the
merits on June 7, 2018.
Appellants filed a notice of appeal, and moved to stay the injunction before this
court. We stayed the injunction on February 9, 2018. We review the imposition of a
preliminary injunction for abuse of discretion. Pashby v. Delia, 709 F.3d 307, 319 (4th
Cir. 2013).
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We

*

The North Carolina State Board of Elections later joined in Appellants’ briefs on

appeal.

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conclude that at this stage of the case, Appellees have not met their burden in any respect.
We anticipate this case will proceed to the merits.

Accordingly, the preliminary

injunction is
VACATED.

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DIANA GRIBBON MOTZ, Circuit Judge, concurring:
I write separately to explain why I voted to deny the motion to stay the district
court’s order granting in part Plaintiffs’ motion for a preliminary injunction, and why I
now concur in the judgment vacating that order.
In seeking a stay of the district court’s order, Senator Philip E. Berger and
Representative Timothy K. Moore argued that the court had erred in finding S.L. 214
created a First Amendment burden because it relied “on speculation and conjecture” and
held “that the Democratic Party has a Constitutional right to a primary for state
elections.” This argument misrepresented the district court’s rationale. The court did not
conclude that a political party has a constitutional right to a state-run primary; rather, it
found just the reverse — “political parties cannot demand that states choose the
winnowing-down method that the political parties prefer.”

The court ultimately

concluded, however, that with its “potentially confusing ballots with multiple candidates
claiming to be representatives of the party,” S.L. 214 imposed associational burdens on
political parties.
This conclusion was not — as Senator Berger and Representative Moore
suggested — based on conjecture or speculation. Rather, the district court relied on the
following facts:
• In 2014, North Carolina did not hold a primary for a newly-vacant Court of
Appeals seat. In the general election, 19 candidates appeared on the ballot.
After the election, a State Board of Elections report found significant
problems with voter confusion in the Court of Appeals race, which
contributed to voter wait times. Moreover, the winner in that race received
only 23% of the vote.
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• In 2004, 8 candidates appeared on the general election ballot for a state
Supreme Court seat, and the winner received only 23% of the vote.
• In 2018, at least four statewide judicial offices are up for re-election, giving
rise to a high likelihood of several multi-candidates races.
The district court concluded, on the record before it, that the legislature’s stated
explanation for the new law — gaining more time for redrawing superior and district
court lines — justified one-time cancellation of the 2018 judicial primaries for superior
and district court judges. Thus, the court denied the requested preliminary injunction
with respect to those races. However, the court found that the same reason did not apply
to appellate judges, who are elected statewide. The State offered no alternative reason to
justify the cancellation of the judicial primaries for those races, and so the district court
enjoined S.L. 214 as it pertains to appellate judicial races.
Senator Berger and Representative Moore moved for a stay pending appeal of that
order. In this motion, they put forth three interests assertedly justifying the “potentially
confusing ballots” S.L. 214 imposed on appellate judicial elections: (1) consistency in
judicial elections; (2) preparation for a transition away from judicial elections; and (3)
allowing the General Assembly more time to redraw the electoral boundaries for superior
and district courts.
As the district court explained, the last reason, “gaining more time for redrawing
superior and district court [judicial] district lines,” does not seem to me to justify a law
regulating appellate judicial races, which are conducted on a state-wide basis. That left
consistency and preparation for a transition away from judicial elections. Before the
district court, the State did not seek to justify S.L. 214 on the basis of consistency or a
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potential transition away from judicial elections. Nor did the State join Senator Burger
and Representative Moore’s motion requesting an emergency stay. (The State filed a
“Notice of Consent,” which explained that “[b]y consenting to the stay motion, the
State . . . do[es] not necessarily adopt the arguments in the motion.”) Thus, at the time
that we considered the motion for a stay, only Senator Berger and Representative Moore
had offered these two rationales.
Well-established Supreme Court precedent cautions us to give “little weight to
statements, such as those of the individual legislators, made after the bill in question has
become law.” Barber v. Thomas, 560 U.S. 474, 486 (2010). * Such post-hoc rationales
are not “statement[s] upon which other legislators might have relied in voting for or
against the Act, but . . . simply represent[] the views of one [or two] informed person[s]
on an issue about which others may (or may not) have thought differently.” Heintz v.
Jenkins, 514 U.S. 291, 298 (1995). Moreover, it is not at all clear that post-hoc rationales
offered by two legislators can satisfy the Anderson-Burdick standard, which instructs us
to consider “the state’s important regulatory interests” in support of a given regulation.
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (emphasis added); Burdick v. Takushi,
504 U.S. 428, 434 (1992).

I could not conclude that the district court abused its

*

Indeed, as Senator Berger and Representative Moore noted in their brief
requesting an emergency stay, “Relying on the remarks of a single member would ‘be
essentially to permit a single member of one House to alter the meaning of the bill, and
effectively to deprive the House that acted first of any real voice in the final meaning of
the enactment. That is plainly improper.’” Emergency Motion for Stay of Preliminary
Injunction, at 8–9 (quoting United Mine Workers of Am. v. Fed. Mine Safety and Health
Review Comm’n, 671 F.2d 615, 622 (D.C. Cir. 1982)).

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discretion by failing to consider justifications for S.L. 214 never presented to it, and
never even offered by the State to us in the motion seeking a stay of the district court’s
order. Accordingly, I voted to deny Senator Berger and Representative Moore’s motion
for a stay.
In their appeal of the order partially granting a preliminary injunction, Appellants
— Senator Berger and Representative Moore, now joined by the State — do assert that
S.L. 214 is justified by the interest in consistency in judicial elections and a desire to buy
time as the State prepares for a transition away from judicial elections. Given this, I
concur in the judgment, vacating the district court’s partial grant of a preliminary
injunction.
At trial, Appellees will have a full opportunity to demonstrate the fact and
character of the burden on their First Amendment rights caused by the new law, and the
State will have an opportunity to demonstrate the fact and significance of the interests
served by the new law.

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