IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA NORTH CAROLINA STATE CONFERENCE OF THE NAACP, et al., v. Plaintiffs, PATRICK LLOYD MCCRORY, in his official capacity as Governor of North Carolina, et al., Defendants. LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, et al., and LOUIS M. DUKE, et al., v. Plaintiffs, Plaintiffs-Intervenors, THE STATE OF NORTH CAROLINA, et al., Defendants. UNITED STATES OF AMERICA, v. Plaintiff, THE STATE OF NORTH CAROLINA, et al., Defendants. 1 1:13CV658 1:13CV660 1:13CV861

2 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 2 of 22 DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION [FED. R. CIV. P. 12 (b(1] Defendants submit this memorandum of law in support of their Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b(1. INTRODUCTION Plaintiffs allege that the photo ID requirements of 2013 N.C. Sess. Laws 318 ( SL , codified as N.C. Gen. Stat and , burden plaintiffs right to vote in violation of the United States Constitution and Section 2 of the Voting Rights Act of 1965, as amended ( VRA. The purported burden stems from plaintiffs alleged disproportionate inability to obtain the government-issued photo ID needed to vote. However, the General Assembly of North Carolina recently amended the law to provide additional options to voters who are unable to obtain an acceptable photo ID to cast a ballot that will be counted, including by declaring what reasonable impediment prevented the individual from obtaining an acceptable photo ID. Accordingly, plaintiffs claims alleging that the photo ID requirements of SL are unconstitutional or a violation of the VRA are now moot and should be dismissed. FACTUAL STATEMENT There are four different sets of plaintiffs in this action: (1 The United States of America, acting through the United States Department of Justice ( USDOJ in United States v. North Carolina, No. 1:13-CV-861; (2 a group of organizational and individual plaintiffs in League of Women Voters v. North Carolina, No. 1:13-CV-660 ( LWV 2

3 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 3 of 22 Plaintiffs ; (3 the North Carolina State Conference of the NAACP, several churches, and several individual plaintiffs in N.C. State Conferences of the NAACP v. McCrory, No. 1:13-CV-658 ( NAACP Plaintiffs, and a group of college students and other individual plaintiffs who have intervened in these actions ( Intervening Plaintiffs. 1 The plaintiffs brought this action alleging, among other things, that the photo identification requirements enacted by SL , codified at N.C. Gen. Stat and , violated the Fourteenth, Fifteenth, and Twenty-Sixth Amendments of the United States Constitution and Section 2 of the VRA. A. Allegations of the Complaints The crux of plaintiffs complaints challenge the photo ID requirement on the grounds that certain voters are allegedly less likely to have the means or ability to obtain acceptable photo IDs. Plaintiffs claims can be summarized as follows: 1. Alleged Violation of the Fourteenth & Fifteenth Amendments The NAACP Plaintiffs allege that requiring voters to present photo identification at their polling place, beginning in 2016, constitutes intentional discrimination against African Americans in violation of the Fourteenth and Fifteenth Amendments. (See NAACP Plaintiff s Compl., Count II, Specifically, the NACCP Plaintiffs allege that the General Assembly knew that a disproportionate number of African- Americans lacked the identification required to vote by SL and that the legislature enacted [the provision] with the knowledge and intent of suppressing the 1 League of Women Voters Plaintiffs have made no allegations or claims for relief based on SL s photo ID requirement. 3

4 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 4 of 22 number of votes cast by African-Americans. (See NAACP Plaintiffs Second Amend. Compl., 127, 129. They also allege that the photo ID requirement imposes real and substantial burdens on the right to vote and is not supported by a legitimate or compelling state interest. (NAACP Plaintiffs Second Amend. Compl., ; Likewise, the Intervening Plaintiffs argue that the photo ID provisions constitute an undue burden on young people s right to vote, denying them equal protection under the Fourteenth Amendment. (See Intervening Plaintiffs Compl., 46-94, Count I, The Intervening Plaintiffs allege, like the NAACP Plaintiffs, that the General Assembly enacted the photo ID provisions of SL with the intention of denying or unreasonably infringing upon the voting rights of African-Americans and young people. (Intervening Plaintiffs Compl., 25. The Intervening Plaintiffs contend that the law curtails the forms of acceptable identification [to be used at polling places], eliminating the use of both college and out-of-state government-issued ids, except under very limited circumstances. (Intervening Plaintiffs Compl., 49. As a result, the Intervening Plaintiffs believe that the voter id requirement abridges, and in some cases effectively deny, the right to vote to thousands of North Carolinians especially young voters, who are less likely than other members of the public to have a valid state-issued id or the means or access to transportation to travel to obtain an id. (Intervening Plaintiffs Compl., 52. The Intervening Plaintiffs also take issue with the provision allowing properly registered voters to complete a provisional 4

5 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 5 of 22 ballot if they do not have an acceptable photo ID, as long as they present to the county board of elections with a valid photo ID by the day prior to the scheduled canvassing of ballots. (Intervening Plaintiffs Compl., Alleged Violation of Section 2 of the Voting Rights Act The NAACP Plaintiffs also allege the photo ID requirement violates the rights of African American voters under Section 2 of the VRA. The NAACP Plaintiffs claim that the requirement imposes disproportionate burdens on African-Americans because the history of racial discrimination in North Carolina has caused African-Americans to have less access to transportation to be less well-educated and more likely to live in poverty than their white counterparts, and that these vestiges of race discrimination make it more difficult for African-Americans to comply with the photo ID provisions of SL (See NAACP Plaintiffs Second Amend. Compl., 7, 85, 110, 112, 113, 117. According to the NAACP Plaintiffs, the photo ID requirements will independently and collectively, interact with the social and historical conditions [of race discrimination] in North Carolina to deny African-Americans meaningful access to the political process. (NAACP Plaintiffs Second Amend. Compl., Finally, USDOJ claims the photo ID provision violates Section 2 because the social and economic conditions [of minorities], caused by historical and ongoing discrimination [in North Carolina], including poverty and lack of transportation, will disproportionately burden minorities right to vote in comparison to the rest of the population. (See USDOJ Compl., 75, 76, 97, 99. USDOJ argues that the photo ID 5

6 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 6 of 22 requirement is unconstitutional because it lacks reasonable safeguards for voters who face barriers in obtaining such identification. (USDOJ Compl., 74. With regard to reasonable safeguards, USDOJ argues that the General Assembly rejected amendments that would have mitigated [the] burden on African-American voters, specifically measures that would have allowed ballots to be counted from voters who faced barriers to obtaining one of the permitted forms of photo identification. (USDOJ Compl., 88. B. Recent Amendment of North Carolina s Photo Identification Requirement On June 22, 2015, 2015 N.C. Sess. Laws 103 ( SL was signed into law. SL amended the photo ID requirements enacted by SL by providing that voters who present themselves at the polls to vote, and who lack an acceptable photo ID, will be allowed to cast a ballot upon completion of a declaration that they had a reasonable impediment to obtaining an acceptable photo ID. SL , 8(d, codified as N.C. Gen. Stat Specifically, the amendment provides a list of examples of reasonable impediments, including lack of transportation, disability or illness, lack of birth certificate or other documents needed to obtain photo identification, work schedule, family responsibilities, that photo identification was lost or stolen, or that photo identification was applied for but not received by the voter in time for the election. Id. 2 In addition, the amended law provides that the voter may indicate 2 The new, amended, statute is nearly identical to a South Carolina law that received preclearance under Section 5 of the VRA in 2012, South Carolina v. United States, 898 F. Supp. 2d at 30 (D.D.C. 2012, and which was enforced during elections in 2013 and 6

7 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 7 of 22 any other reasonable impediment to obtaining an acceptable photo ID. Id. 3 Upon completion of the declaration, the voter must provide identification in the form of either (1 a copy of the voter s voter registration card or a document allowed under N.C. Gen. Stat , including a current utility bill, bank statement, government check, paycheck, or other government document; or (2 the last four digits of the voter s social security number and the voter s date of birth. SL , 8(d. In addition, SL provides that voters who present to vote during the onestop absentee voting period (sometimes called early voting without an acceptable photo ID will be instructed about their ability to vote an absentee ballot which requires no photo ID. Any voter who chooses not to vote using the absentee method may declare a reasonable impediment if he or she was unable to obtain a photo ID. Finally, SL specifically directs the North Carolina State Board of Elections ( SBOE to educate the public regarding the new reasonable impediment option for voting. SL was enacted by the North Carolina General Assembly by wide margins. The final vote in the North Carolina House of Representatives was 104 to 3 and the final vote in the North Carolina Senate was 44 to 2. In the Senate, Sen. Bob Rucho presented the conference report on the bill that was enacted into SL , House Bill 836, to the full Senate for consideration. Sen. Rucho was also a leading proponent of the 2014 without any evidence of an adverse effect on African American turnout. The new statute differs from the South Carolina law in that the statute itself describes what can be considered a reasonable impediment. South Carolina s law left that determination to those executing and enforcing the law. 3 The new law clearly indicates that reasonable impediment is to be interpreted broadly in favor of the voter. SL , 8(d and 8(e. 7

8 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 8 of 22 bill that ultimately became SL In the House of Representatives, Rep. David Lewis, the House Elections Committee Chairman, presented the conference report on House Bill 836 to the House for consideration. On June 22, 2015 the Governor of North Carolina signed the bill into law. Almost immediately after SL was enacted, the SBOE amended its website to describe and publicize the reasonable impediment voting option. The new option is described on the main website of the SBOE and on a separate website devoted solely to the photo ID requirements. Copies of pages from these websites are attached as Exhibit 1. While the North Carolina General Assembly is not a party to any of these consolidated actions, it has not given any indication that SL will be amended in any way or repealed. 4 The parties to these cases, including the Governor and SBOE, have demonstrated nothing but an intent to execute and implement the law. 4 On July 3, 2015, the LWV Plaintiffs filed a status report on the related state court case captioned Currie v. State of North Carolina, No. 13CVS1419 (Orange County Superior Court. (D.E. 295 in Case No In the status report the LWV plaintiffs asserted that there are some indications from legislators that the new provisions [SL ] could soon be repealed. (D.E. 295, 6. The LWV Plaintiffs do not provide any actual evidence for this assertion. Based on communications from counsel for the LWV Plaintiffs in the Currie matter, defendants assume that the LWV Plaintiffs are referring to the article attached hereto as Exhibit 2. Exhibit 2 is apparently an editorial from an internet publication calling itself the Beaufort Observer. The editorial relays the following hearsay statement attributed to Rep. Michael Speciale: You may rest assured that I fully support requiring a photo ID and once this DMV mess is straightened out I will, if no one else does, introduce a bill to scrap the impediment exception. There is no evidence that this hearsay statement in an editorial published on an internet site is accurate. If it is accurate, the statement on its face states that the representative intends to introduce a bill regarding the impediment exception at some indeterminate time in the future. Obviously introducing a bill does not guarantee that it will be enacted and the Court can take judicial notice of the hundreds of bills that are introduced each 8

9 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 9 of 22 ARGUMENT PLAINTIFFS CLAIMS CHALLENGING THE NORTH CAROLINA S PHOTO IDENTIFICATION REQUIREMENT ARE MOOT AND SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. The North Carolina General Assembly s recent amendment moots plaintiffs claims that North Carolina s photo ID requirement is unlawful and deprives the Court of the requisite subject matter jurisdiction over those claims. It is fundamental that the Constitution limits a federal court s jurisdiction to the adjudication of actual cases and controversies, see U.S. Const. art. III, 2, and that [t]o qualify as a case fit for federalcourt adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997 (quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974. It is equally well settled that a case must be dismissed as moot if an event occurs [pending adjudication of the matter] that makes it impossible for [a] court to grant any effectual relief whatever to a prevailing party. Church of Scientology of Cal. v. U.S., 506 U.S. 9, 12 (1992; see also Lewis v. Cont l Bank Corp., 494 U.S. 472 (1990 (holding that a challenge to banking statutes was rendered moot by amendments to the law; Massachusetts v. Oakes, 491 U.S. 576, (1989 (holding than an overbreadth challenge to a child pornography law was rendered moot by amendment to the statute; legislative year that are never enacted. The Court can also note the almost unanimous votes in favor of SL Moreover, while Rep. Speciale is not in the leadership of any committee that deals with election policy, the lead proponent in the House of Representatives of what became SL , David Lewis, is the Chairman of the Elections Committee and the Committee on Rules, Calendar, and Operations of the House. 9

10 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 10 of 22 Princeton Univ. v. Schmid, 455 U.S. 100 (1982 (holding that a free speech challenge to a university regulation was moot because the regulation had been substantially amended ; Kremens v. Bartley, 431 U.S. 119 (1977 (holding a due process challenge to statute governing involuntary commitment of mentally ill minors moot because law was repealed and replaced with a different statute. It follows then, that when a legislature amends or repeals a statute, remedying the challenged portion of the law, a case challenging the prior law becomes moot. Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir (plaintiffs challenges to various aspect of state s ABC act were mooted by legislature s amendment of the act during the course of litigation; Am. Legion Post 7 of Durham v. City of Durham, 239 F.3d 601, 606 (4th Cir (plaintiff s constitutional challenge of a city s zoning ordinance was mooted by the city s revision of the challenged ordinance; see also Reyes v. City of Lynchburg, 300 F.3d 449 (2002 (plaintiffs who were indicted for violating city s parade ordinance had their claims for declaratory and injunctive relief mooted following the city s repeal of the ordinance. In Brooks, plaintiffs challenged under the dormant Commerce Clause various aspects of the state s alcoholic beverage control ( ABC act that permitted in-state, but not out-of-state, producers to bypass certain ABC regulation structures and sell directly to in-state retailers and consumers. The district court found these provisions unconstitutional. However, prior to appeal, the state legislature amended the statute in a manner that essentially codified the district court s judgment. 462 F.3d at 347. The 10

11 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 11 of 22 Fourth Circuit cited Durham, 239 F.3d at 606, in holding that when the legislature amends or repeals a statute, a case challenging the prior law can become moot, even where reenactment of the statute at issue is within the power of the legislature. The court found that only if the reenactment [was] not merely possible, but appears probable could the harm be found capable of repetition, yet evading review. Brooks, 462 F.3d at 348. Ultimately, the court found the claim moot, vacated the district court s judgment and ordered the district court to dismiss moot portions of case. Id. at 349. In Valero v. Paige, 211 F.3d 112 (2000, companies engaged in solid waste compost industries brought a 1983 action against a state agency challenging constitutionality of state statutes regulating waste disposal and management. The district court held the statutes invalid under the dormant Commerce Clause and entered a permanent injunction prohibiting their enforcement. Subsequently, the state legislature revised the enjoined and related statutes and the agency moved for the complaint to be dismissed as moot and to vacate the earlier judgment. The plaintiff contended that the statutory amendments were so minor and insignificant that they did not render moot its complaint. The amendments repealed the former requirement that the local waste be accorded priority over non-local waste, eliminated county commissions from the dumpsite approval process, and replaced all of the parochial statutory preambles with language adopting a policy of uniform treatment. Id. at 116. The court found these types of amendments to be anything but minor and insignificant. Id. The court also rejected plaintiff s contention that their case 11

12 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 12 of 22 remained alive under City of Mesquite v. Aladdin s Castle, Inc., 455 U.S. 283 (1982. The court reviewed the post-city of Mesquite case law and determined that City of Mesquite was generally limited to the circumstances in which a defendant openly announces its intention to reenact precisely the same provision held unconstitutional below. Id. The Valero court remained satisfied, therefore, that statutory changes that discontinue a challenged practice are usually enough to render a case moot, even if the legislature possess the power to reenact the statute after the lawsuit is dismissed. Id. Under this precedent, North Carolina s enactment of SL plainly moots plaintiffs photo ID claims. First, the changes to North Carolina s photo ID requirement were significant. The new law expanded the acceptable photo ID allowed for voting by providing that voters may use certain DMV-issued IDs that have been expired up to four years. SL , 8(a. The new law also now requires elections officials to notify voters during early voting who lack an acceptable photo ID of their option to vote without any photo ID by absentee ballot, which may be returned to elections officials at an early voting site. SL , 8(b. Finally, SL provides voters who have been unable to obtain acceptable photo ID the option of declaring from an extensive list of impediments (or one that the voter writes in that such an impediment prevented them from obtaining acceptable ID. Upon submitting such a declaration, subject to minor exceptions, the voter s provisional ballot will be counted. Second, as a result of the enactment of SL , plaintiffs can no longer contend that any voter, whether African American, young, or otherwise will be 12

13 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 13 of 22 disenfranchised or burdened because of their inability to obtain an acceptable photo ID. Voters with DMV-issued IDs expired up to four years will be able to use those ID for voting. Voters who wish to vote without submitting any photo ID at all will be given the opportunity during the early voting period of requesting and voting an absentee ballot. And voters who have been unable to obtain an acceptable photo ID but do not want to vote using an absentee ballot will be able to vote upon completing the reasonable impediment declaration. 5 Accordingly, North Carolina s photo ID requirement does not: 1. Impose a real and substantial burden on minorities right to vote by requiring they have a government-issued ID; 5 Notably, the amendment is the type of reasonable safeguard that the USDOJ argued should have been included in the original statute to protect voters who faced barriers to obtaining one of the permitted forms of photo identification. (See USDOJ Plaintiff s Compl., 88. It is also consistent with USDOJ s answer to an interrogatory (Interrogatory No. 25 propounded by defendants seeking USDOJ s opinion on what the State should have enacted to ensure its photo ID requirement did not violate federal law: For example, HB 589 fails to include a safe harbor to allow voters without an HB 589- compliant photo identification to cast an in-person regular ballot that will be counted, which would help to address the disproportionate burden this requirement has on African- American voters. These safe harbors could have included allowing a voter to cast an inperson regular ballot that will be counted if he or she completes an affidavit stating that he or she is indigent and unable to obtain proof of identification, or if the voter completes a form stating a reasonable impediment to obtaining HB 589-compliant photo identification. Alternatively, the State could have permitted voters to present forms of non-photo identification, such as those permitted under the Help America Vote Act, including utility bills or bank statements or government correspondence to a voter at his or her voting address. These are simply illustrative examples of the types of ameliorative or safe harbor provisions that could have been included in HB 589 but were not, and do not represent the entire universe of possible measures that could have been included. Because HB 589 s photo identification requirement lacks a meaningful safe harbor and disproportionately harms African-American voters, it therefore provides African- American voters with less opportunity to participate in the political process. 13

14 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 14 of curtail [the] forms of acceptable identification with an eye toward abridging or denying the right to vote of thousands of young voters; 3. require minorities or young voters who are allegedly less likely than other members of the public to have a valid state-issued id to expend any resources to obtain an ID; 4. require minorities or young voters to have means or access to transportation to travel to the DMV to obtain an ID in order to be able to vote; 5. create any undue burden on the right to vote for any person who has been unable to obtain an acceptable form of photo ID. All of the plaintiffs claims for relief are based on the allegation that SL s photo ID requirement could deny the right to vote to an otherwise eligible individual because that voter could not obtain acceptable photo ID. The amendments enacted by SL eliminate the possibility that such harm, from which plaintiffs seek relief, can even occur. Thus, plaintiffs claims for relief regarding the former photo ID requirements are now moot and must be dismissed. Third, there is no evidence that the North Carolina General Assembly intends to repeal these changes. The General Assembly has not announce[d] its intention to repeal the changes. Valero, at 116. Nor is there any evidence that any such repeal is probable. Brooks, 462 F.3d at 348. The LWV Plaintiffs assertion in the recently filed status report that there are some indications from legislators that SL could be repealed is completely false, and is likely based on hearsay statements from one legislator cited in an editorial appearing on an internet publication. See supra at p. 8 n.4. In any event, there is certainly no evidence that the actual defendants in these cases, including the Governor and SBOE, intend to seek a repeal of SL To the 14

15 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 15 of 22 contrary, the Governor signed SL , and the SBOE is already publicizing its provisions to the public through its website. Moreover, neither the Governor nor the SBOE can control the General Assembly and the General Assembly is not a party to these actions. 6 Accordingly, the current claims against the photo ID requirement must be dismissed. This Court previously found a plaintiff s claims moot in a case with a similar factual scenario. In Alpha Iota Omega Christian Fraternity v. Moeser, No. 1:04CV00765, 2006 WL , (M.D.N.C. May 4, 2006, a Christian fraternity at the University of North Carolina brought suit challenging a written university policy requiring student organizations to agree to a non-discrimination policy in order to be recognized on campus and receive school funding. Id. at *1-2. The fraternity refused to abide by the policy and challenged it on the grounds that the policy violated their First and Fourteenth Amendment rights to form a group with persons who share their beliefs. Id. Following the initiation of the lawsuit, the university revised its nondiscrimination policy to allow recognition of student organizations that select their members on the basis of commitment to a set of beliefs. Id. at *3 Subsequent to the policy revision, the university moved to dismiss the fraternity s claims as moot. Id. Despite the resolution of the parties controversy, the fraternity argued that the university s voluntary change in policy did not moot the case and asked this Court to rule 6 Because the General Assembly is not a party to these actions, the voluntary cessation exception to mootness may not even apply since mootness has occurred through legislative action and is not attributable to the State s executive officials defending a challenge to that law. Brooks, at 349 (citing Valero, 211 F.3d at

16 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 16 of 22 on the constitutionality of the old policy and enjoin the university from applying it in the future. Id. at *3. Specifically, the fraternity argued that it was not absolutely clear that the university would stick with its updated policy nor that the university would not abandon the revised policy once the case was dismissed. Id. at *4. In holding the fraternity s claims were moot, this Court declined to retain jurisdiction because the [old policy], about which [the fraternity] brought suit, [was] now gone. Id. This Court found that the university had made their new policy as public and permanent as possible, and that the old policy could not threaten or harm [the fraternity] and the Court would be engaging in purely advisory, theoretical analysis if it were to enter a declaratory judgment on the constitutionality of a non-existent policy. Id. at *5-6. This Court rightly concluded that the possibility that another person [might] suffer harm in the future [was] insufficient to avoid mootness. Id. (citing Weinstein v. Bradford, 423 U.S. 147, 149 (1975. In the instant case, just like in Moeser, plaintiffs claims are mooted by the subsequent amendment of a challenged law. The General Assembly s enactment of SL , by a vote of 44-2 in the Senate and in the House of Representatives, arguably makes their revision more permanent than the university s decision to revise its policy in Moeser. The old version of the photo ID requirement is now non-existent, replaced with the new version. Even if the original photo ID provisions were unconstitutional or violative of Section 2 of the VRA, which defendants deny, those provisions cannot [now] threaten or harm the plaintiffs or any other voter who is unable 16

17 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 17 of 22 to obtain an acceptable photo ID prior to an election. As a result, plaintiffs claims for relief from the old photo ID requirements are now moot and any analysis of their constitutionality would be purely advisory, theoretical analysis that this Court has rightly recognized is impermissible. Id. at *6 (citing Lewis, 494 U.S. at 477. Plaintiffs cannot avoid mootness, and a dismissal of their photo ID claims, by merely alleging there is the possibility that some abstract harm may occur in the future. Like this Court recognized in Moeser, if the plaintiffs, or other voters, are injured in the future under the amended photo ID requirements or otherwise, they are free to bring a lawsuit and seek redress at that time. Id. at *9. Therefore, plaintiffs claims challenging the constitutionality or legality of the photo ID requirements as originally enacted by SL are now moot and should be dismissed as the Court lacks subject matter jurisdiction. CONCLUSION Based on the foregoing, defendants respectfully request that the Court dismiss plaintiffs claims challenging the photo identification requirements enacted by 2013 N.C. Sess. Laws 381 for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b(1, as the General Assembly s recent amendment of those requirements has rendered plaintiffs claims moot. 17

18 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 18 of 22 Respectfully submitted this the 8 th day of July, ROY COOPER ATTORNEY GENERAL OF NORTH CAROLINA /s/ Alexander McC. Peters Alexander McC. Peters Senior Deputy Attorney General N.C. State Bar No apeters@ncdoj.gov /s/ Katherine A. Murphy Katherine A. Murphy Special Deputy Attorney General N.C. State Bar No kmurphy@ncdodoj.gov N.C. Department of Justice P.O. Box 629 Raleigh, NC Telephone: ( Facsimile: ( Counsel for Defendants North Carolina and State Board of Election Defendants. OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. /s/ Phillip J. Strach Thomas A. Farr N.C. State Bar No Phillip J. Strach N.C. State Bar No thomas.farr@ogletreedeakins.com phil.strach@ogletreedeakins.com 4208 Six Forks Road, Suite 1100 Raleigh, North Carolina Telephone: ( Facsimile: ( Co-counsel for Defendants North Carolina and State Board of Election Defendants. 18

19 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 19 of 22 BOWERS LAW OFFICE LLC By: /s/ Karl S. Bowers, Jr. Karl S. Bowers, Jr.* Federal Bar #7716 P.O. Box Columbia, SC Telephone: ( *appearing pursuant to Local Rule 83.1(d Counsel for Governor Patrick L. McCrory By: /s/ Robert C. Stephens Robert C. Stephens (State Bar #4150 General Counsel Office of the Governor of North Carolina Mail Service Center Raleigh, North Carolina Telephone: ( Facsimile: ( Counsel for Governor Patrick L. McCrory 19

20 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 20 of 22 CERTIFICATE OF SERVICE I, Phillip J. Strach, hereby certify that I have this day electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will provide electronic notification of the same to the following: Counsel for United States of America: T. Christian Herren, Jr. John A. Russ IV Catherine Meza David G. Cooper Spencer R. Fisher Elizabeth M. Ryan Jenigh Garrett Attorneys, Voting Section Civil Rights Division U.S. Department of Justice Room 7254-NWB 950 Pennsylvania Avenue, N.W. Washington, DC Gill P. Beck Special Assistant United States Attorney Office of the United States Attorney United States Courthouse 100 Otis Street Asheville, NC Counsel for NCAAP Plaintiffs: Penda D. Hair Edward A. Hailes, Jr. Denise D. Liberman Donita Judge Caitlin Swain ADVANCEMENT PROJECT Suite L Street, N.W. Washington, DC phair@advancementproject.com Irving Joyner P.O. Box 374 Cary, NC ijoyner@nccu.edu 20 Adam Stein TIN FULTON WALKER & OWEN 312 West Franklin Street Chapel Hill, NC astein@tinfulton.com Thomas D. Yannucci Daniel T. Donovan Susan M. Davies K. Winn Allen Uzoma Nkwonta Kim Knudson Anne Dechter Bridget O Connor Jodi Wu Kim Rancour KIRKLAND & ELLIS LLP

21 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 21 of Fifteenth St., N.W. Washington, DC Counsel for League of Women Voter Plaintiffs: Anita S. Earls Allison J. Riggs Clare R. Barnett Southern Coalition for Social Justice 1415 Hwy. 54, Suite 101 Durham, NC Dale Ho Julie A. Ebenstein ACLU Voting Rights Project 125 Broad Street New York, NY Laughlin McDonald ACLU Voting Rights Project 2700 International Tower 229 Peachtree Street, NE Atlanta, GA Christopher Brook ACLU of North Carolina Legal Foundation PO Box Raleigh, NC Counsel for the Intervening Plaintiffs: John M. Davaney Marc E. Elias Kevin J. Hamilton Elisabeth Frost PERKINS COIE, LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C Edwin M. Speas, Jr. John W. O Hale johale@poynerspruill.com Caroline P. Mackie cmackie@poynerspruill.com POYNER SPRUILL, LLP 301 Fayetteville St., Suite 1900 Raleigh, NC

22 Case 1:13-cv TDS-JEP Document 300 Filed 07/08/15 Page 22 of 22 This the 8 th day of July, OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. /s/ Phillip J. Strach Phillip J. Strach