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IN THE GENERAL COURT OF JUSTICE - ‘SUPERIOR COURT DIVISION WAKECOUNTY 18-CVS.9748) NORTH CAROLINA | CHRISTOPHER J, ANGLIN, Plait, PHILLIP E. BERGER, in his official capacity as the PRESIDENT PRO TEMPORE OF THE NORTH. CAROLINA SENATE; TIMOTHY K, MOORE, in his oficial capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES; THE STATE OF NORTH CAROLINA; THE NORTH CAROLINA BIPARTISAN STATE. BOARD OF ELECTIONS AND ETHICS ENFORCEMENT; and KIMBERLY W. STRACH, inher offical capacity as EXECUTIVE DIRECTOR OF THE NORTH CAROLINA BIPARTISAN STATE BOARD OF ELECTIONS AND, ETHICS ENFORCEMENT, ORDER GRANTING PLAINTIFF'S ‘MOTION FOR PRELIMINARY INJUNCTION Defendants, THIS MATTER CAME ONTO BE HEARD before the Court during the August 13, 2018, Session of Superior Court, Wake County. All adverse partes to this ation received the notice required by Rule 65 of the Noth Carolina Rules of Civil Procedure, ‘The Court ‘considered the pleadings, arguments, briefs ofthe parties, supplemental affidavits, and the record «stablised thus far, a well as submissions of counsel in attendance. THE COURT, in the exercise of its disretion i for good eause shown, hereby makes the following: Findings of Fat 1.192016 and 2017, the North Carona General Assembly (hereinafter “the General Assembly" enacted laes making partisan ll elections fr jc office in North Carolina See 2016 N.C. Sess Laws 125, $$ 21(0), 21(h) (Court of Appeals and Supreme Cou); 2017 N.C. Sess, Laws 3, §§ 5, 14 (Superior and Distt Courts) 2. On October 17, 2017, Session Law 2017-214 (hereinafter 1.20174 4) became law notwithstanding the objections of Governor Rey Cooper. 8.1. 2017-214 became “effective January 1, 2018, and applie( dl] 1o all primaries and elections held on or after that dlate;” 2OLTN.C. Sess. Law. 214, § 5, S.L, 2017-214 cancelled the 2018 judicial primaries forall eandidates seeking. judicial office. In place of a judicial primary, S.L. 2017-214 provided that each person seeking judicial office was required to file a notice of candidacy, and that a “candidate, atthe time of filing the noice of candidacy under this seton, shall indicate onthe notice of candidacy the political party recognized under Artle 18 of Chapter 163A ofthe General Statute with which that candidate is affiliated or any unaffiliated status. The certificate required by subsection (Q) of this setion shall verify the party designation or unaffiliated status, and the vetted party designation or unaffiliated status shall be included onthe ballo.” 2017 N.C. Sess, Law. 214, § 400) 4. S.L. 2017-214 therefore required a eandidte'spoitial party afliiation to appear ‘on the ballot when that candidate chose to be alate with apolitical party’ and that party designation was verified as the party with which the candidate was registered, S.L, 2017-214 did ‘not, however, require the candidate's party affiliation or unaffiliated status be the same asthe party with which the eandidate was registered for any specific amount of time prior to the date of filing the notice of candidacy 5. On June 7,2018, Plaintiff changed his party egistration from the Democrati Party to the Republican Party by filing the necessary documentation with the Wake County 6 OnJune 18,2018, at noon the filing prio fo judicial candidates began, 7 On June 20,2018, Session Law 2018-13 (hereinafter “SL. 2018-13") became law notwithstanding the objections of Govemor Roy Coopet, S.L, 2018-13 provided that a Alislaimer would appear at the top ofthe judicial offices section ofthe 2018 general election ballot as follows “No primaries for judicial office were held in 2018, The information listed by each ofthe following candidates’ names indicates only the candidates” party affiliation or unaffiliated status on their voter registration atthe time they ied to run for office 2018 N.C. Sess, Law. 13, $200 8 On June 29,2018, Plant fled withthe Bipartisan State Board of Elections and shies Enforcement (hereinafter “the Bipartisan State Board of Elections” the necessary paperwork to run fora seat onthe Supreme Court of North Carolina, specifically as an associate justice, Plait lso paid the requisite ing ee 9. As required by S.L. 2017-214, Plant indicated on his notice of candidacy the political party, the Republican Party—with which he was afilisted, As required by 8. 2017-214, Plaintiff included a certification from the Wake County Board of Elections that his ration was with the Republican Party atthe time of bis fil pany his notice of candidacy, 10, On June 29, 2018, at noon the filing period for judicial candidates ended, 11. On August 4, 2018, Session Law 2018-130 (hereinafter “S.L. 2018-130") became law notwithstanding the objections of Governor Roy Cooper. SL. 2018-130 “is effective when i becomes law and applies othe 2018 elections only.” 2018 N.C, Sess. Law. 130, § 4 12, Si, 2018-130, in par, writes SL, 2017-214, such that Section 4,(b) now reads, in pertinent part, as follows: “A candidate, at thet oiling the notice of candidacy under this section, shall indicate on the notice of candidacy the political party recognized under Article 18, ‘of Chapter 1634 of the General Statutes with which that candidate is alfiated or any uafliliated status, the candidate's political pasty affiliation or unafiited status is the same son their voter registration atthe time they filed o run for office snd 90 days prior to that fling, the political party designation or unafilated stats sal be included on the ballot” 2018 N.C Sess, Law, 130, § 1 13, S.L. 2018-130 does not change the requitement tht candidate indicate & panty filiaton or unafiliatd status on his or er notice of candidacy, does not extend the deadline for filing @ notice of eandiday, and does not otherwise allow alrady-filed notes of candidacy to be amended —only withdrawn, 14, Importantly to Plaintiff's claims, 8.1. 2018-130 changes the legal consequences ANowing fom Plant's already-completed actions in filing @ notice of candidacy, ‘The application ofS.L, 2018-130 to candidate like Plant, who changed his o her party registration less than ninety days belore Filing a notice of candidacy, now prechudes the candidate's party affiliation or unaffiliated status from being included on the 2018 general ‘lection ballot, ‘The application of SL. 2018-130 to Plaintiff will result in no party affiliation or ‘unaliiated status being listed with Plaintf?'s name on the partisan ballot, while sill providing a party affiliation or unaffiliated status of Plains opponents Is, 2018-130 also changed the text ofthe diselaimer provided by S.L. 2018-13, The disclaimer now reads as follows: “No primaries for judicial office were held in 2018. The party information by each of the following candidates’ names is shown only if the candidates’ party affiliation or unaffiliated status is the same as on their voter registration atthe time they filed to run for office and 90 days prior to that fling.” 2O18N.C. Sess. Law. 130, §3. 16. On August 6, 2018, Plaintiff filed a verified complaint secking a temporary restraining order and preliminary injunction, 17. On August 6, 2018, the Court entered a temporary restraining order pursuant 10 Rulle 65(b) ofthe North Carolina Rules of Civil Procedure 18, Any candidate appearing on a ballot without partisan affiliation would be highly ‘unlikely to win an election ifthe ballot also included candidate forthe same race who are shown as aflliated with a political party. See Affidavit of Gary O, Bartlet 19, Plaintitalleges in his verified complaint that S.L. 2018-130, as applied to Plaintit, violates the rights Ptaintff enjoys under Article I, Setions 1, 10, 14, 19, and 32 of the North Carolina Constitution. Plaintiff seeks to enjoin Defendants from enforcing against PlaintfT te party affiliation and ballot disclaimer provisions of S.L. 2018-130 and from authorizing any change to Plaintif’s verified designation as a Republican eandidate for judicial office Based upon the foregoing findings of fact, the Court makes the following: Conclusions of Law 1. “The purpose of a preliminary injunetion is ordinarity to preserve the status {quo pending tal on the merits, Is issuance is a matter of diseetion to be exercised by the hearing judge after a careful balancing of the equities.” State ex rel, Edmistenv, Fayetteville Sireet Christian School, 299 N.C. 351, 357, 261 S.E.24 908, 913 (1980). \ preliminary injunction is an “extraordinary remedy” and will issue “only (1) if a plaints able to show likelihood of success on the merits oF his case and (2) i plaintiffs likely to sustain irreparable loss unless the injunetion is issued, or if in the opinion ofthe Court, issuance is necessary for the protection of a plaintiffs rights during the course of litigation.” A.F-P. Indusries, Inc. »- MeCture, 308 N.C. 393, 401, 302 $.F.2d 754, 759-760 (1983) (emphasis in original); see also N.C.GS. § 1A-1, Rule 65(b). When assessing the preliminary injunction factors, the til judge “should engage in a halaneing process, weighing potential harm to the plain the injunction i not issued against the potential harm othe defendant if injunctive reliefs granted In effect, the harm alleged by the paint must satis standard of relative substantaity as well as ierparability.” Willams ». Greene, 36N.C, App. 80, 86,243 S.E.2d 156, 160 (1978) 2. While the Cour recognizes S.L. 2018-130 is ented toa presumption of consttutionality,PlaintifT has shown a ikelthood that he wil prevail onthe merits of his ease, particulary as it relates to his claims based on violation a his due process and associational rights under Article I, Sections 19 and 14 ofthe Nosh Carolina Constitution, respectively, 3. Plain has shown that his politcal pay designation was propery vriied by the required certificate at the time Plant filed his noice of candidacy. Pursuant to S.L. 2017- 214, Paints verified party designation was thereby equired to be included on the 2018, general election bllo, 2017 NC. Sess. Law. 214, §4(6). Adina, the filing peiod for judicial candidates has closed, Plaintiff has shown that he satisfied North Carolina's requirements to run for judicial office and thereby obtained the right to appear on the 2018, ‘general election ballot as provided hy the law as it existe at that ime. As such, Plait has shown that he had a vested right to appear on the 2018 general election ballot with his chosen politcal party designation because it was “so far perfected as to permit no stattory Ierference:" Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468,471 (1980). 4. S.L. 2018-130 is retroactive ints application o Plain because the Sesion, Law's “operative effect isto alter the legal consequences of cont or transactions completed prior tits enactment." Gardner, 300 N.C. 1718, 268 S.E.2d at 471, Retroactive changes in «fection las ean be patently unfair to the candidates who followed pre-existing election ries and procedures, See Roe»: Alabama, 43 F.3d 574, $8081 (11th it, 1995). Plain has shown that S.L 2018-130 reteoatively elimsnates Plant's vested right and forces Paint to choose between either being listed on the ballot with no party alilaton or withdrawing from the race— neither of which allows Plaintiff the opportunity to enjoy his vested right. Importantly, S.L, 2018-130 provides Plaintiff no opportunity to comply withthe new requirements to otherwise preserve his vested right. As such, Plant has shown that S.L, 2018-130, a applied to Paint, Violates fundamental principles of fairness, thercy violating Plaintiff's right to due process provided by the North Carolina Constitution 5, S.L. 2017-214 as originally writen conferred on Pini the right o have his party allison listed onthe ballot, and while candidates for political fice typically have no right to have a partisan ailaton listed ona blo, fa law gives some candidates fora specific race a party identifier, but not other andidates for the same race, that law imposes “a burden on the associational rights ofthe candidates let unidentified.” Marcellus. Va State Bd Of Elections, 849 F.3d 169, 177 (4th Cit, 2016). As such, PlaintifThas shown that S.L. 2018-130, a8 applied to Plaintiff, burdens Plainti’s right of assoviation provided by the North Carolina Constitution, 6. The burden imposed by S.L. 2018-130, as applied to Plaintiff, is severe. S.L. 2018-130 eliminates Pla s vested right to have his party affiliation listed om the ballot while allowing the other candidates inthe same, specific ace to have their party affiliation listed om the ballot, Moreover, SL. 2018-130's new requirement imposed on Paintifdoes not allow Plaintift any amount of time, reasonable or otherwise, to comply. The burden on Plainti's rights is also severe because i affects Pain’ rights “atthe most erucial stage in the election process—the instant before the vote is eas." Cook»: Gali, 831 US. 510, 525 (2001), 7. When due process and associational ights are “severely burdened” by an election law,” the challenged statutes must he sretly scrutinized to determine whether they were “narowly tailored and advance a compelling state interest." Libertarian Party of N. Carolina v Stave, 965 N.C. 41,47, 707 SE.24 199, 203 (2011). ‘The State caries this burden of proof. While dhe General Assembly's sated intrest in preventing voter confusion sin general a legitimate, compelling State interest, its unlikely that the Sate can show that. 2018-130 advances compelling interest. Furthermore, the State cannot likey show that SL. 2018-130 is narrowly tailored to advance is proffered compelling interest because the Session Law was not “ine least restietive means of advancing the State's compelling interest” Sate» Bishop, 368 N.C 869, 878, 787 .E.24 814, 820 (2016) Indo, the State already resolved concerns regarding voter confusion through the enactment of S.L, 2017-214 and S.L. 2018-13. Asa esull,PlaintfVs likely to show that, as applied to Plaintiff, the severe burden S.L. 2018-130 imposes on Plaintf's rights will not survive striet scrutiny. 8. Moreover, even iS.L. 2018-130 does not severely buen Plant's rights, Plaintiff will ikely be able o show the State's interests are not “suficiently weighty fo justify te limitation imposed on [Plains] sights" Libertarian Party, 365 N.C. at $1,707 S.E2¢ at 206. Plains therefor likely o prevail even if sect seratiny doesnot apply. 9, Imadkltion to Plant's showing that there sa liksibood be wil prevail on the merits of his ease, Plaintiff will sufer an imme and irreparable loss of his rights ithe preliminary injunetion isnot issued. Additionally itis the opinion ofthe Court that issuance of a preliminary injunetion is necessary for the protection of Plaintiff's rights during the course of the present itgaton. SL. 2018-130 incues a deadline of August 8 2018, for candidates to "withdraw From the race, which hasbeen temporarily enjoined by the Court ‘The Bipartisan State Board of Elections, through counsel, has represented that ballots forthe 2018 general election ‘must be printed immediately. Once ballots are printed, Plintif's constitutional injury will be irreparable. Given the severity of Pitt's constitutional injury and absence of legitimate countervailing interest, the publi intrest in fir elections clearly favors issuance ofa preliminary injunetion and a weighing of the equities leads the Court to conclude that the Potential harm to Plant if the injunction i not issued outweighs the potential harm to Defendants i injunctive reli is granted, 10, Therefore, the Court in its disretion and after a careful balancing of the equities, concludes itis prope that a preliminary injunction shall ss, enjoining the application of S.L. 2018-130 to Plait’ eandidsey for Associate Justice ofthe Supreme Court of North Carolina. BASED UPON THE FOREGOING, IT IS HEREBY ORDERED, ADJUDGED, AND 1. Plinti's motion fora pretiminary injunction is hereby GRANTED. 2. Defendants are hereby ENJOINED during the pendency ofthis tigation fromm: 4 Enforcing against Plinth provisions of S.L. 2018-130 o otherwise issuing or causing any county Board of Elections ois any official state publication tothe voting public which states that Plaintiff i anything other than a Republican candidate for Associate Justice ofthe Supreme Court of Nowth Carona; 'b. Authorizing any change to Phinttf's verified designation asa Republican candidate for Associate Justie a the Supreme Court of Noth Carolina on the ‘offical ballot forthe November 6,2018, General Eletion: and, © Authorizing official ballot language forthe November 6,2018, General Election or authorizing the printing of ballots by county Boards of Elections ‘at state the 90-day pre-registration requirement pertains to Paints candidacy for Associate Justice ofthe Supreme Court of Nosh Carolina 3. The Court hereby STAYS the eflet ofthe August 8, 2018, deadline for withdrawal from 2018 general eletion for judicial office until disposition of Plaats elim on the merits. This Court maintains jurisdiction to ensure Plaintiff the opportunity to Withdraw Plaintif’s name from the ballot if subsequent review by this Court or appellate ation overturns any injunetive relief entered by this Court, 4. ‘This Court has considered the necessity of a bond under Rule 65 of the North Carolina Rules of Civil Procedure and finds that @ nominal bond will suffice. Plaintiff is therefore ORDERED to pay a bond of $1.00 (One Dolla) to the Wake County Clerk of Cour. SO ORDERED, this | Fay of August, 2018 Leap )ULL Rebecca W. Holt Superior Court Judge Presiding

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