Raleigh Wake Citizens Association et al v. Barefoot et al

Filing 114

ORDER denying 108 Motion to Intervene as untimely; denying 109 Motion to Expedite relief under the court's order of August 9, 2016. Signed by Chief Judge James C. Dever III on 8/25/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Consolidated Civil Action

)
)
)
Plaintiffs,
)
)
v.
)
)
WAKE COUNTY BOARD OF ELECTIONS, )
)
Defendant.
)

RALEIGH WAKE CITIZENS
ASSOCIATION, et al.,

CALLA WRIGHT, et al.,
Plaintiffs,

)
)
)
)

)

~

STATE OF NORTH CAROLINA,
Defendant.

No. 5:15-CV-156-D

No. 5:13-CV-607-D

)
)
)
)

ORDER
On August 22, 2016, Caroline Sullivan ("Sullivan") filed an expedited motion to intervene
[D.E. 108] and a motion to expedite relief under this court's order of August 9, 2016 [D.E. 109]. 1

If allowed to intervene, Sullivan wants this court to amend its order ofAugust 9, 2016, to reopen the
filing periods in Districts 4, 5, and 6 for the 2016 Wake County Board of Commissioners elections
so that qualified candidates (including Sullivan) can file to run in Districts 4, 5, or 6, and to have the
resulting 2016 election in Districts 4, 5, and 6 determined by plurality vote. See [D.E. 108] 1-2;
[D.E. 109] 5-6. Alternatively, Sullivan proposes that the court declare that the candidates who filed
1

This order references docket entries as they appear in Civil Action No. 5:15-CV-156-D.

in 2015 to run in 2016 in Districts 4, 5, and 6 are disqualified under North Carolina law, direct the
appropriate Democratic and Republican party executive committee to nominate a person to run in
2016 in Districts 4, 5, and 6, and have those nominees stand for election in 2016. See [D.E. 109]
6. Alternatively, Sullivan proposes that the court declare that any candidate who filed in 2015 to run
in 2016 in one of the now unconstitutional Super Districts be allowed to stand for election in 2016
in Districts 4, 5, or 6 (if otherwise qualified) and to have the resulting 2016 election determined by
plurality vote. See id.
On August 23, 2016, the Wake County Board of Elections took no position on Sullivan's
expedited motion to intervene [D.E. 112]. On August 24, 2016, the Wake County Board of
Elections responded in opposition to Sullivan's motion to expedite relief under this court's order of
August 9, 2016 [D.E. 113]. As explained below, the court denies Sullivan's expedited motion to
intervene as untimely and denies Sullivan's motion to expedite relief under this court's order of
August 9, 2016.

I.
This court's order of August 9, 2016, exhaustively recounts the proceedings in this
consolidated case and the rationale for the court-ordered remedial plan that this court adopted for the
2016 Wake County School Board elections and the 2016 Wake County Board of Commissioners
elections. See [D.E. 104] 5-37. In the order of August 9, 2016, the court retained 'jurisdiction to
implement, enforce, and amend this judgment in order to ensure timely and orderly elections and to
provide other appropriate relief as needed." ld. 37.
On August 22, 2016, Sullivan filed an expedited motion to intervene in order to seek
extraordinary emergency relief so that she can run in District 4 for the Wake County Board of
Commissioners. See [D.E. 108]; see also [D.E. 109, 110, 111]. Sullivan is currently serving as the
2

County Commissioner elected in 2012 from District 4. See [D.E. 110] ~ 2. Sullivan, however, filed
on December 4, 2015, to run in Super District A under Session Law 2015-4. See id.

~

7. On July

1, 2016, the United States Court ofAppeals for the Fourth Circuit held, inter ali~ that the population
deviations in the Super Districts in Session Law 2015-4 violated one person one vote principles
under the equal protection clauses of the United States Constitution and the North Carolina
Constitution. See Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, No. 16-1270, No.
16-1271, 2016 WL 3568147, at *12-13, 15 & n.13 (4th Cir. July 1, 2016).
On August 3, 2016, the Fourth Circuit's mandate issued, and this court obtained jurisdiction
to address the remedy. See [D.E. 89]. This court then conducted expedited remedial proceedings
and, on August 9, 2016, enjoined the Wake County Board of Elections from, inter ali~ conducting
elections in November 2016 using the Super Districts in Session Law 2015-4. See [D.E. 104] 33-36.
Thus, Sullivan and the other candidates for theWake County Board of Commissioners who filed in
2015 to run in 2016 in the Super Districts are unable to run in 2016 in the Super Districts.
Furthermore, the Wake County Board of Elections and the North Carolina State Board of Elections
construed this court's order ofAugust 9, 2016, to not require a new filing period for those candidates
seeking election in 2016 to the Wake County Board of Commissioners in Districts 4, 5, and 6. See
[D.E. 110-2] 1, 5; [D.E. 110-3]. Accordingly, unless this court permits Sullivan to intervene and
grants one form of the extraordinary emergency relief that Sullivan seeks concerning Districts 4, 5,
and 6, Sullivan will not be able to run in 2016 for the Wake County Board of Commissioners.
In considering Sullivan's motion to intervene, the court initially must address whether the
motion is "timely." See Fed. R. Civ. P. 24(a), (b). "The determination of timeliness is committed
to the sound discretion of the trial court," and a trial court's "discretion in this regard is wide." Alt
v. EPA, 758 F.3d588, 591 (4thCir. 2014) (quotation omitted). In assessing timeliness, a court must
3

consider ''three factors: first, how far the underlying suit has progressed; second, the prejudice any
resulting delay might cause the other parties; and third, why the movant was tardy in filing its
motion." Id.
On the first factor, the Fourth Circuit issued its decision on July 1, 2016, and the Fourth
Circuit's mandate issued on August 3, 2016. During July 2016, this court received information from
the parties, the legislative leaders of the General Assembly, and the North Carolina State Board of
Elections in order to be able to conduct prompt remedial proceedings that were faithful to the Fourth
Circuit's mandate and that ensured timely and orderly elections in 2016 for the Wake County School
Board and the Wake County Board of Commissioners. See [D.E. 104] 1-4, 9-16. Sullivan was
aware of these events, but did not seek to intervene. See [D.E. 110]

~

13. Moreover, between

August 3, 2016, and August 9, 2016, this court conducted expedited remedial proceedings. See
[D.E. 104] 1-4, 15-16. Again, Sullivan was aware of these proceedings, but did not seek to
intervene. See [D.E. 11 0] ~~ 13-14. Those proceedings culminated in this court's order of August
9, 2016, adopting a court-ordered remedial plan for the 2016 elections. See [D.E. 104] 5-3 7. When
the court entered its order on August 9, 2016, it was aware of the "numerous sequential deadlines
that must be met" in order to have timely and orderly elections in 2016 for the Wake County School
Board and the Wake County Board of Commissioners. See id. 34--35 (citing [D.E. 83, 83-1, 83-2,

103]).
Following this court's order of August 9, 2016, both the Wake County Board of Elections
and the North Carolina State Board of Elections properly construed this court's order of August 9,
2016, and moved expeditiously to ensure timely and orderly elections in 2016 for the Wake County
School Board and the Wake County Board of Commissioners. See [D.E. 110-2] 1, 5; [D.E. 110-3];
[D.E. 113] 4--10. Sullivan, however, waited until August 22,2016, to seek to intervene in order to

4

seek extraordinary emergency relief. Given how far the underlying lawsuit has progressed, the
nature of the expedited remedial proceedings, and the ongoing electoral process and its incessant
sequential deadlines, the first factor weighs heavily against finding Sullivan's motion to intervene
to be timely. SeeAlt, 758 F.3dat591; see also Floyd v. CityofN.Y., 770 F.3d 1051, 1054, 1057-59
(2d Cir. 2014) (per curiam); Chamness v. Bowen, 722 F.3d 1110, 1121-22 (9th Cir. 2013); BlountHill v. Zelm@, 636 F.3d 278,284-86 (6th Cir. 2011); Lucas v. McKeithen, 102 F.3d 171, 173 (5th
Cir. 1996); Garza v. Cty. of Los Angeles, 918 F.2d 763, 777 (9th Cir. 1990).
On the second factor, the Wake County Board ofElections and the voters would be severely
prejudiced if this court permits intervention, grants any form of the extraordinary emergency relief
that Sullivan seeks concerning Districts 4, 5, and 6, and changes the electoral scheme for those
running in 2016 in Districts 4, 5, and 6. As mentioned, this court is very familiar with the incessant
sequential deadlines that the Wake County Board of Elections must meet in order to ensure timely
and orderly elections in November 2016. See [D.E. 83, 83-1, 83-2, 103]. When this court issued
its order on August 9, 2016, the court was extremely concerned about the ability oftheWake County
Board of Elections to meet all of the necessary deadlines for timely and orderly elections in Wake
County in November 2016. Today, this court is convinced that to permit Sullivan to intervene and
to grant any form of the extraordinary emergency relief that Sullivan seeks concerning Districts 4,
5, and 6 would ensure that timely and orderly elections for the Wake County Board of
Commissioners would not take place in Wake County in November 2016.

See,~'

[D.E. 113]

10-11. This court will not use its broad equitable authority to disrupt the ongoing electoral process
and thereby create massive confusion, inconvenience, and uncertainty among Wake County's voters,
election officials, and candidates. Cf. Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam);
Upham v. Seamon, 456U.S. 37,44 (1982) (per curiam); Elyv. Klahr,403 U.S. 108, 114-15 (1971);

5

Swann v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1, 15 (1971); Reynolds v. Sims, 377 U.S.
533, 585-86 (1964). Thus, the second factor weighs heavily against finding Sullivan's motion to
intervene to be timely. See Alt, 758 F.3d at 591; see also Floyd, 770 F.3d at 1059-60; Chamness,
722 F.3d at 1121-22; Blount-Hill, 636 F.3d at 286-87; Lucas, 102 F.3d at 173; Garz~ 918 F.2d at
777.
On the third factor, the court finds that Sullivan's reasons for her tardy intervention motion
do not warrant permitting Sullivan to intervene. Sullivan candidly acknowledges that she closely
followed the litigation concerning Session Law 2015-4. See [D.E. 110] ,-r,-r 2-18. Notwithstanding
the pending litigation challenging, inter

ali~

the population deviations in the Super Districts in

Session Law 2015-4, Sullivan filed to run in Super District A on December 4, 2015. See id. ,-r,-r 4-11.
Sullivan, however, could have filed to run in District 4 in December 2015. See id. ,-r,-r 5-7. If
Sullivan had filed to run in District 4 in December 2015 and another Democratic candidate had as
well, then Sullivan would have run in a primary for District 4 in March 2016. Sullivan did not file
to run in District 4, and a Democratic and Republican candidate did. Moreover, Sullivan and every
other candidate who considered filing to run in Districts 4, 5, and 6 in December 2015 under Session
Law 2015-4 knew that the plaintiffs in this case were not challenging the population deviations in
Districts 4, 5, and 6 for the 2016 election and knew that the elections in 2016 in Districts 4, 5, and
6 were scheduled to take place using the same residency districts used in 2012 and 2014. See Am.
Compl. [D.E. 22] ,-r,-r 63-64, 68; Tr. Ex. 439 (S.L. 2015-4, § l.(b)). On these facts, Sullivan
"gambled and lost" in filing to run in Super District A and in failing to seek to intervene earlier. See
Alt, 758 F.3d at 591. Furthermore, although Sullivan was fully aware of this court's remedial
proceedings, which culminated in this court's order of August 9, 2016, she waited until August 22,
2016, to seek to intervene. Sullivan's "deliberate forbearance" to seek to intervene until August 22,

6

2016, was unreasonable. Id. While the court recognizes Sullivan's obvious and understandable
frustration with the litigation's course, Sullivan's reasons for her tardy motion to intervene are
unpersuasive. Thus, the third factor weighs heavily against finding Sullivan's motion to intervene
to be timely. See id.; see also Floyd, 770 F.3d at 1058-59; Blount-Hill, 636 F.3d at 285-87; Lucas,
102 F.3d at 173; Garz~ 918 F.2d at 777.

n.
In sum, Sullivan's expedited motion to intervene [D.E. 108] is DENIED as untimely, and

Sullivan's motion to expedite relief under the court's order of August 9, 2016 [D.E. 109] is
DENIED.
SO ORDERED. This

1! day of August 2016.

J
S C. DEVER Ill
Chief United States District Judge

7