IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA No. 1:16-cv-01288

Transcription

1 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA No. 1:16-cv NORTH CAROLINA DEMOCRATIC ) PARTY, ) ) Plaintiff, ) ) DEFENDANT NORTH v. ) CAROLINA REPUBLICAN ) PARTY S MEMORANDUM IN NORTH CAROLINA REPUBLICAN PARTY, ) OPPOSITION TO PLAINTIFF S DONALD J. TRUMP FOR PRESIDENT, INC., ) MOTION FOR TEMPORARY ROGER J STONE, JR., and STOP THE ) RESTRAINING ORDER STEAL INC., ) ) Defendants. ) Defendant North Carolina Republican Party responds in opposition to Plaintiff s Motion for Temporary Restraining Order and shows unto the Court as follows: STATEMENT OF THE CASE On November 3, 2016, on the eve of the 2016 Presidential Election, the North Carolina Democratic Party ( Plaintiff ) filed this action as a part of a flurry of lawsuits in various swing states across the country. The Democratic Party filed virtually indistinguishable complaints and motions for relief in Arizona, 1 Ohio, 2 Pennsylvania, 3 Nevada, 4 and now North Carolina. As far as the undersigned is aware, three of the requests for injunctive relief to date have been litigated in 1 Arizona Republican Party v. Donald J. Trump for President, Inc., Case No.: 2:16-cv JJT. 2 Ohio Democratic Party v. Ohio Republican Party, Case No. 1:16cv JG. 3 Pennsylvania State Democratic Party v. Republican Party of Pennsylvania, et.al., Case No Nevada State Democratic Party v. Nevada Republican Party et. al. 2:16-cv RFB-NJK. 1

2 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 2 of 22 Arizona, Nevada, and Ohio. All three have resulted in rulings that denied relief because the Plaintiff was unable to demonstrate a likelihood of success on the merits. See infra at 7-8. On Friday, November 4, 2016, Plaintiff filed a motion for a temporary restraining order in this action and a preliminary injunction. 5 Docket No. 4. Plaintiff also filed a Memorandum in support. Docket No. 6. Plaintiff specifically seeks to enjoin the North Carolina Republican Party from many protected activities including poll watching or poll monitoring activities inside or outside of polling places ; Distributing literature ; being present without the intention to vote ; taking photos ; and other activities. See Docket No. 4. On Saturday, November 5, 2016, the Court noticed a hearing on the motion for Temporary Restraining Order for 1:00 P.M. on Monday, November 7, 2016, the afternoon prior to the Election Day. Also on Saturday, November 5, 2016, the North Carolina Republican Party was served with the Complaint and other documents filed with the Court. On Sunday evening, November 6, 2016, Plaintiff filed an additional Declaration in Support of its Motion as well as a letter to the Court. See Docket Nos On Sunday, November 6, 2016, Defendant Donald Trump for President, Inc. filed its Response in Opposition. See Docket No. 11. STATEMENT OF THE FACTS Plaintiff s complaint alleges a conspiracy theory involving the Donald Trump campaign, Roger J. Stone, Jr., Stop the Steal, Inc., and the North Carolina Republican Party, purportedly to violate 42 U.S.C. 1985(3) and Section 11(b) of the Voting Rights Act. 5 The certification of Plaintiff s counsel on the motion asserts as an officer of the Court that he had given actual notice to the North Carolina Republican Party on Friday, November 4, Despite the familiarity of Plaintiff s local counsel with the undersigned s representation of the North Carolina Republican Party as its General Counsel, Plaintiff s counsel did not contact or the undersigned on November 3, 2016 or November 4, Nor is the undersigned aware of any other actual notice of the lawsuit or the motion given to any officers or employees of the North Carolina Republican Party on these dates. 2

3 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 3 of 22 Paragraph 1 of the Complaint and the first sentence of Plaintiff s Statement of Facts falsely claim the named defendants are conspiring to threaten, intimidate, and thereby prevent minority voters in North Carolina from voting in the 2016 election. Complt. 1, Pl. Mem. at 2. The only support Plaintiffs are able to cite for this calumny, however, is an anonymous source quoted by Bloomberg news discussing advertising and communications strategies designed to persuade African American, women voters, and idealistic white liberals not to vote for Hillary Clinton. Cf. id., Declaration of Andrew Z. Michaelson, Ex. 8. Referring to these communications strategies, the unnamed Trump Campaign official purportedly states, we have three major voter suppression operations under way. Id. Plaintiff s brief accuses the Republican Presidential candidate of using the loudest microphone in the nation to implore his supporters to engage in unlawful intimidation at North Carolina polling places. Pl. Mem. at 3. Plaintiff, however, has not presented any evidence that Donald Trump or any other defendant specifically implored or requested anyone to engage in unlawful intimidation at North Carolina polling places. Pl. Mem. at Plaintiff s statement of facts present no evidence that any individual voter anywhere in the United States has been threatened, intimidated or thereby prevented from voting in the 2016 General Election, let alone any North Carolina minority voter. See Pl. Mem. at On Sunday evening, Plaintiff submitted an affidavit from Phillip Hampton Feagan. Docket No. 9. That affidavit described a number of anonymous reports from polling places and stated I have no personal knowledge of and cannot attest to the accuracy of these reports Id. at 3. The only anonymous report in the Feagan Affidavit which involved a purported threat is described in Paragraph 4. That report alleged that Trump volunteers were approaching people in line and telling them to vote for Trump or else. Id. The anonymous reporter is alleged to have 3

4 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 4 of 22 left the polling place before they reached her in line. Id. There was no information in the anonymous report about the race of any individual involved. Id. According to the North Carolina State Board of Elections, as of November 6, 2016 at 12:00 P.M., 3,100,806 total absentee ballots have been cast. Of those, 2,946,157 have been One Stop or early voting ballots. See Declaration of Seth A. Neyhart, Ex. 1. There are currently 6,864,841 total registered voters in North Carolina. Thus, as of the end of the 2016 early voting period, 45.2% of all North Carolina registered voters have already cast their ballots. See id. In the 2012 General Election, the North Carolina voter turnout rate was 68%. In the 2008 elections, the voter turnout rate was 70%, the highest recorded rate going back to See Declaration of Seth A. Neyhart, Ex. 2. Based on these turnout rates, well over half of the North Carolina likely voters have already cast their ballots in the current election. Although over 3,000,000 voters have already voted throughout North Carolina in 2016, Plaintiff has not presented evidence of any minority voter who was threatened or intimidated with the purpose and/or effect of preventing them from voting. See Pl. Mem. at 3-13; Feagan Aff. Plaintiff s own evidence of the Lee County incident states that To our knowledge, he did not threaten any voters directly. Michaelson Decl., Ex. 28. The only evidence that Plaintiff initially provided of acts of intimidation in North Carolina consisted of a picture of someone carrying a prop baseball bat marked TRUMP across the street from the Board of Elections office in Lee County. See Michaelson Decl., Ex. 28. Plaintiff s brief then makes several additional vague allegations with no factual support in the record. Pl. Mem. at The photograph with the baseball bat only came after a prominent democratic radio personality criticized a sample ballot of veterans running for office was being distributed. She 4

5 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 5 of 22 then threatened on social media to NIP THIS IN THE BUD even if a baseball bat is necessary. See Staley Decl.; See also Womack Decl., Ex. A. (emphasis in the original). In response, some local republican volunteers dressed up in baseball uniforms at the county Republican headquarters with balls and gloves. Id. One volunteer s prop was a toy bat with TRUMP carved into it, with which other volunteers posed and took pictures. Id. When Sherry Womack saw him on street with the toy TRUMP bat, she walked towards him and directed to stay away from view of the polling site. Id. At no time did the volunteer ever get closer to the Lee County Board of Elections than approximately 200 feet away from the polling site, and no one ever threatened or menaced anyone at or around the Lee County Board of Elections offices with a baseball bat or in any other manner. Id. None of these actions were taken as actions of the Lee County Republican Party or the North Carolina Republican party. Staley Decl., 9. The North Carolina State Board has distributed a document entitled Tips for Monitoring or Observing the Election At Polling Sites. That document describes the rules for Outside Monitors and Inside Observers. It states the following: Outside Monitors: Anyone has the right to watch or monitor the election OUTSIDE the polling place. All activity must remain outside the marked 50 line at all times. Outside monitors often include individuals, candidates, political staff, and advocacy organizations. Outside observers must maintain good order at all times. The chief judge has the duty to ensure a safe and orderly voting site and has the right to remove anyone who is disruptive. Allowed: Pass out campaign material and sample ballots. Speak to voters. Conduct polling. Monitor and report concerns and complaints. Prohibited: Enter the polling place or curbside voting area unless they are actually in the act of voting. Obstruct, intimidate, or interfere with any person registering or voting. 5

6 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 6 of 22 OBSERVING THE ELECTION INSIDE (appointed by political party) Members of the public may not enter a polling site to observe the election process. Only election observers appointed in advance by the political party may be inside a polling place. The chief judge will designate a place for observers that is close enough to hear the voter state their name and address, but far enough to not impede the voting process. Each party may assign at least two observers per precinct and an additional 10 at-large observers for the county. No more than 2 precinct-assigned observers and 1 at-large observer from the same political party may be in the voting enclosure at the same time. Precinct observers may be relieved after serving for at least 4 hours. Allowed: Make observations and take notes. Observe the registration, ballot, and help tables without impeding voters or precinct officials. Walk outside the voting enclosure to observe the curbside voting area. Obtain the list of people who have voted at least at the following times: 10 a.m., 2 p.m., and 4 p.m. May possess personal electronic devices, as long as they are not disruptive to voters or election officials. Report concerns and incidents to the chief judge and/or county elections director. Observe closing procedures. Prohibited: Do not enter the voting enclosure before the polls open. Do not speak to voters or assistants. Do not wear or distribute campaign material. Do not stand behind the registration table or help table because poll books and laptops display confidential voter information. Do not enter the voting booth area. Do not interfere with the privacy of a curbside voter while the voter is voting. Do not board a bus or other vehicle containing curbside voters. Do not provide voter assistance. Do not photograph or view voters without the consent of the voter and the chief judge, Do not photograph or video voters without the consent of the voter and the chief judge. Do not photograph or video a candidate without the candidate s consent (in this instance, it is not necessary to obtain the consent of the chief judge. Neyhart Decl., Ex. 3. All of the actions of the North Carolina Republican Party are intended to be consistent with the rules of the North Carolina Board of Elections. See Woodhouse Decl. 6

7 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 7 of 22 ARGUMENT The Court has set a hearing on Plaintiff s Motion for a Temporary Restraining Order. Preliminary injunctions are extraordinary remedies. Direx Israel, Ltd, v. Breakthrough Med. Corp., 952 F2d 802, 816 (4 th Cir. 1991). They involve the exercise of very far-reaching power and are to be granted only sparingly and in limited circumstances. Hoechts Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4 th Cir. 1999). The Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election. Veasey v. Perry, 769 F.3d 890, 892 (5 th Cir. 2014). Conducting an election is a logistically complicated task, and changing the ground rules shortly before an election causes serious disruption of [the] election process. Williams v. Rhodes, 393 U.S., 35 (1969). Court orders affecting elections... can themselves result in voter confusion and consequent incentive to remain away from the polls. Purcell v. Gonzalez, 549 U.S. 1, 5 (2006). As a result of these considerations, courts generally decline to grant an injunction to alter a State s established election procedures when an election is imminent and there is inadequate time to resolve factual and legal disputes. Id. at 5-6. This is so, regardless of the merits of plaintiff s legal claim. See, e.g., Williams, 393 U.S. at 35 (refusing to enter order after concluding that ballots had unconstitutionally excluded certain candidates.) During the 2014 election season, the Supreme Court halted three decisions that would have altered the rules of the general election up to eight weeks before it began. Veasey, 769 F.3d at 894; see also North Carolina v. League of Women Voters of N.C., U.S., 135 S. Ct. 6 (2014) (staying order entered October, 2014); Frank v. Walker, U.S., 135 S. Ct. 7 (2014) (staying order entered on September 24, 2014); Husted v. Ohio State Conf. of NAACP, 135 S. Ct. 42 (2014) (staying order entered on September 4, 2016). Similarly during this election cycle, on 7

8 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 8 of 22 November 5, 2016 the Supreme Court unanimously stayed an election related order issued by the Ninth Circuit. Tatum v. Arizona, U.S., No. 16A460. The presumption against last minute changes to election rules is especially strong when a plaintiff has unreasonably delayed bringing his claim. Crookston v. Johnson, F.3d, 2016 WL , at *2 (6 th Cir. Oct. 28, 2016.) As of Sunday, November 6, 2016, the undersigned is not aware of any parallel litigation which has ever enjoined the Republican state party organization. The District of Nevada ruled that the Nevada Democratic Party faced no irreparable harm because the campaign and the Nevada Republican are not involved... in activities that constitute voter intimidation or coercion. Def. Donald J. Trump for President, Inc. Mem., Ex. B. at 7. In the Arizona litigation, the court ruled that the inferences necessary to reach a conclusion that there is a conspiracy to intimidate voters have reached the point of speculation. Id., Ex. C at 19. On November 4, 2016, the Northern District of Ohio issued a Temporary Restraining Order against Donald J. Trump for President, Inc., Roger J. Stone, Jr., and Stop the Steal, Inc., but declined to issue an order against the Ohio Republican Party. See Ohio Democratic Party v. Ohio Republican Party, Docket No. 27, Case No. 16-cv-2645 (N.D. Ohio Nov. 4, 2016). However, on Sunday, November 6, 2016, the Sixth Circuit Court of Appeals issued an order reversing the Northern District of Ohio on the ground that Plaintiff failed to show likelihood of success on the merits as to all Defendants. See Docket No. 10, Ex. 1. The Court should similarly reject Plaintiff s request here. 8

9 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 9 of 22 I. Plaintiff Can Not Show Why A Mandatory Temporary Restraining Order On the Eve of an Election Day Is Equitable. In this case, the Republican Party has been afforded less than one business day from being served this litigation to appear and defend against a mandatory temporary restraining order which would, in essence, resolve the entire litigation. Federal Rule of Civil Procedure 65, which governs the issuance of injunctions, states: "No preliminary injunction shall be issued without notice to the adverse party." Fed. R. Civ. P. 65(a)(1). Although the Rule does not specify how much notice must be given to an adverse party before a court can enter a preliminary injunction, the Supreme Court has held that same-day notice is not enough. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 433 n.7, 39 L. Ed. 2d 435, 94 S. Ct (1974). In Granny Goose, the Court compared the Rule 65(b) informal, same-day notice that suffices for issuance of a TRO with the "more thorough notice requirements which must be satisfied to obtain a preliminary injunction." Id. at 434 n.7. The Court emphasized that the notice required by Rule 65(a) for preliminary injunctions "implies a hearing in which the defendant is given a fair opportunity to oppose the application and to prepare for such opposition." Id. Accord Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir. 1999). In this case, because of Plaintiff s strategic decision to file and move for injunctive relief when it did, the Court cannot give the Republican Party and the other defendants a fair opportunity to prepare their opposition to Plaintiff s motion. Since Plaintiff decided not to file this lawsuit and its motion any earlier, there is simply not enough time for adequate notice in which the Republican Party and the other defendants are given a fair opportunity to oppose the application with adequate preparation. Thus, the only remedy left due to the exigency of time would be a Temporary 9

10 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 10 of 22 Restraining Order. Because the delay is solely due to Plaintiff s actions, the Court should not convert the 1:00 P.M. hearing into a hearing on a Preliminary Injunction standard. Further, it is fundamentally unfair and violates due process to allow Plaintiff to serve a complaint, a motion, a twenty five page memorandum, an expert report, and an affidavit with 30 separate Exhibits constituting hundreds of pages on the Saturday before an Election and reward this strategic delay with a Temporary Restraining Order. If there is not enough time even for an expedited Preliminary Injunction hearing to be ordered, the Court should not grant a Temporary Restraining Order. This is not an eleventh hour filing, it is one minute before midnight filing. Plaintiff could have filed and served this Complaint and motion several days earlier, let alone several weeks. Plaintiff, however, chose not to do so in North Carolina, even though it did file similarly drafted litigation in other states earlier in the week. See, e.g., Pennsylvania State Democratic Party v. Republican Party of Pennsylvania, et. al, E.D. P. 2:16-cv-5664-PD (similarly drafted Complaint with same attorneys filed on October 30, 2016). Under the doctrine of laches, Plaintiff should not be equitably allowed to improve its position by its strategic delay and limit the ability of Defendants to put on a showing in opposition to the motion. See also Crookston, 2016 WL , at *2. This is especially so when the relief requested would essentially dispose of the entire litigation, two business days after it was originally filed. There is no justification Plaintiff can show for why it could not have filed this action early enough for Defendants to have adequate time, even on an expedited basis, to prepare their opposition. Plaintiff s evidentiary showing consists of mostly newspaper articles from around the United States. One and a half days on a weekend is simply insufficient to review and respond to all of the factual allegations, conclusions, and innuendos in Plaintiff s filings. 10

11 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 11 of 22 II. Standard for Temporary Restraining Order. Nevertheless, despite the procedural unfairness it is clear that Plaintiff has utterly failed to meet any standard for injunctive relief. Fed. R. Civ. P. 65(b) states that a temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from the specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required."). Guinness PLC v. Ward, 955 F.2d 875 (4th Cir. 1992). A preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter v. NRDC, 555 U.S. 7, 22 (2008.) The Fourth Circuit has long followed a four-part test to determine if an injunction is appropriate. That test requires the Court to consider: (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 195 (4th Cir. 1977). In addition, where, as here, the requested injunction would interfere with the electoral process, the Court must also weigh considerations specific to election cases. Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006). 11

12 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 12 of 22 III. The Balancing of The Equities Requires Denial of Plaintiff s Motion. A. There is no likelihood of irreparable harm to Plaintiff or anyone else if Plaintiff s Motion is denied. Plaintiff is requesting an order, ostensibly preliminarily, to prevent minority voters from being unlawfully prevented from voting by threats or intimidation. But Plaintiff has not shown any harm to any minority, let alone irreparable harm. As stated above, this election cycle has already taken the votes of over half of the North Carolina electorate without Plaintiff being able to prove that ANY individual has been threatened or intimidated from voting. If 3,000,000 votes have been cast without admissible evidence of one person being threatened, it is impossible for Plaintiff to show a likelihood of irreparable harm. The only mention of any actual threatening behavior appears to be one anonymous hearsay upon hearsay report described in the Feagan Affidavit. However, the author of that affidavit stated I have no personal knowledge of and cannot attest to the accuracy of these reports. Id., 3. Given this admission, there is no way the Court can give any evidentiary weight to this report. The principle source of Plaintiff s evidence is a handful of stay comments picked out of media reports covering hundreds of hours of campaign speeches and interviews by the Republican Presidential and Vice-Presidential candidates and several of their surrogates, as well as a 2008 article disparaging Defendant Roger Stone. See Pl. Mem. at Setting aside the obvious evidentiary issues with Plaintiff s proffer, nothing in its cherry picked quotes shows an intent or desire to threaten or intimidate anyone from voting. Nothing in the speeches quoted by Plaintiff goes beyond normal political speech. It includes general references to campaign volunteers watching polling places, encouragement to supporters to be involved in the campaign, invitations to supporters to participate in the election to ensure it is not stolen, and questions regarding the possibility of election fraud. Id. 12

13 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 13 of 22 Contrary to Plaintiff s assertions and implications, states, as well as the general public and participants in the political process have a valid interest in deterring and detecting voter fraud. Crawford v. Marion Cty. Election Bd., 533 U.S. 181, 191 (2008). On its face, none of the comments of anyone cited in Plaintiff s offer of proof, directs anyone in North Carolina to threaten or intimidate anyone from voting. Further, nothing in Plaintiff s sparse evidence offered indicates that the North Carolina Republican Party has entered any kind of agreement or taken any action to threaten or intimidate anyone from voting. Plaintiff conflates statements about poll watchers and the historic North Carolina statutory function of designated party observers, even though Plaintiff is purportedly not requesting interference with this statutory system in the relief sought. Nothing in the North Carolina Republican Party s activity or the training involved in that activity urges anyone to threaten or intimidate voters. In fact, just the opposite is the case. See Woodhouse Decl. Plaintiff raises Daschle v. Thune. See Pl. Mem. at 15 (citing Temporary Restraining Order, Daschle v. Thune, No. 04-cv-4177, Docket No. 6 (D.S.D. Nov. 2, 2014). However, the stark disparity between the proof in that case and this case only illustrates the weakness of Plaintiff s proof. In Daschle, the TRO was issued only after the Plaintiff presented express evidence including [o]ral testimony and photographs, id. at 1, showing that multiple individuals were follow[ing] Native Americans from the polling places, copy[ing] [their] license plants, and recording the license plates of Native Americans driving away from the polling places. Id. at 2. Nothing similar, or even in the same ballpark, has been shown in North Carolina. Finally, Plaintiff cannot show that the only incident for which it has some evidence was directed or authorized by the state level of the Republican Party, the only entity it sued. On the other hand, the North Carolina Republican Party has made a showing that it had nothing to do with 13

14 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 14 of 22 the incident in Lee County See Decl. of Sherry Womack; Decl. of Charles Staley. Further, according to Plaintiff s own evidence, this incident did not involve any actual threats to or interactions with any voters, let alone minority voters. In sum, with over 3,000,000 votes already cast in the 2016 North Carolina General Election, Plaintiff has not submitted admissible evidentiary proof of any intent, agreement, conspiracy, or occurrence of any of the alleged harm in this case, i.e., minority voters being prevent from voting through intimidation or threat. Plaintiff thus cannot point to any likelihood of irreparable harm, and certainly has not shown any evidence that the North Carolina Republican Party has any role in, responsibility for, or intent to cause the non-existent harm. Because Plaintiff utterly fails to meet its burden in this respect, the Court should deny Plaintiff s motion altogether, and specifically deny it as to the North Carolina Republican Party. B. Plaintiff s Proposed Order Would Unduly and Improperly Harm the North Carolina Republican Party. Entering this order one day before the election would inject an element of chaos into the North Carolina Republican Party officers and staff whose energy would be diverted into trying to figure out how to ensure compliance with a very vague order. Such harm would itself be potentially irreparable. Some of that harm has already been imposed upon the Republican Party s senior leadership when Plaintiff distracted them from their election duties to address this lawsuit. Clearly this and the potential for Republican Party voter suppression outweigh Plaintiff s conjecture of harm. Further, granting this injunction against the North Carolina Republican Party would cause it reputational harm by giving a patina of legal blessing to Plaintiff s baseless and politically motivated allegations. Whether or not that is the ultimate purpose behind this nationwide last minute assault, it would be the effect. The Court does not have any evidence before it that would 14

15 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 15 of 22 support a finding of intentional conspiracy to commit criminal acts on the part of the North Carolina Republican Party. Granting an injunction would give the appearance that it does. For that reason alone, any injunctive relief should be denied. Further, Plaintiff s Complaint claims in essence that all sorts of innocuous, entirely legal conduct constitutes intimidation, and its proposed Order reaches normal poll watching activity protected and regulated by North Carolina law. See N.C. Gen. Stat Plaintiff is attempting to unilaterally change the law in the middle of an election to restrict the rights of only one side, conveniently the opposing Party. Granting Plaintiff s confusing order on the eve of Election Day would take away Republicans rights under North Carolina law while leaving citizens supporting Democratic candidates free to enjoy all of their rights. The Supreme Court has held that states have a valid interest in deterring and detecting voter fraud. Crawford v. Marion Cty. Election Bd., 533 U.S. 181, 191 (2008). Similarly, the general public and all participants in the political process also have a valid interest in the same. The entire premise of Plaintiff s suit, however, ridicules and demonizes several Defendants and national Republican figures for expressing concern about vote fraud. See, e.g., Pl. Mem. at 3 Trump and Stone Call for Voter Intimidation Based on Bogus Fraud Claims, imagined voter fraud ; Pl. Mem. at 7 (The notion of widespread voter fraud in modern American politics is itself a myth. Every attempt to verify the presence of voter fraud has proven fruitless. ) The Court does not need to make a finding about the existence of voter fraud to deny Plaintiffs injunction. There are many other valid reasons to do so. But granting Plaintiff s injunction would mean that the Court has adopted Plaintiff s core factual allegation without a fair hearing. 15

16 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 16 of 22 Plaintiff contends that is that there is no real voter fraud and that anyone who expresses concern about it must be doing so for nefarious purposes. See Complt. There are, however, multiple reports of many kinds of voter fraud in North Carolina and throughout the country in recent times which have received significant publicity. A collection of some of the more prominent cases and news reports of voting irregularities in North Carolina and elsewhere are set forth in the Declaration of Brycen Williams. Declaration of Brycen Williams, Exs Vote fraud exists. It is real. And according to the United States Supreme Court, it is a legitimate concern. Any participant in the electoral process has a right and a legitimate interest in working to prevent vote fraud. That includes, but is not limited to, the North Carolina Republican Party and the other Defendants in this case. Vote fraud may or may not be present enough to affect the national Presidential election or local elections, depending on how close they are. But this is a factual and political issue which belongs in the public arena. The Court should not, as Plaintiff has requested, assume that the question has already been decided and that any discussion of the topic is illegitimate. Doing so would injure the North Carolina Republican Party and our democracy unfairly. C. Plaintiff Has an Extremely Low Likelihood of Success on the Merits. A party seeking preliminary relief must demonstrate a likelihood of success on the merits. Munaf v. Geren, 553 U.S. 674, 690 (2008). At this point in time, it appears that three of the parallel lawsuits have been adjudicated on their motion for injunctive relief, and all three have determined that Plaintiff failed to establish any likelihood of success on the merits. Plaintiff has also failed to make this showing here. 16

17 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 17 of Plaintiff Does Not Have Standing To Bring This Action. As a jurisdictional matter, Plaintiff has not alleged facts giving it standing to bring this action. As the Supreme Court has stated: It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, (1968); Jenkins v. McKeithen, 395 U.S. 411, (1969) (opinion of MARSHALL, J.). Plaintiffs must demonstrate a "personal stake in the outcome" in order to "assure that concrete adverseness which sharpens the presentation of issues" necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 204 (1962). Abstract injury is not enough. The plaintiff must show that he "has sustained or is immediately in danger of sustaining some direct injury" as the result of the challenged official conduct and the injury or threat of injury must be both "real and immediate," not "conjectural" or "hypothetical. L.A. v. Lyons, 461 U.S. 95, 103 (1983). Here, there is no showing of any injury or threat of injury that is real and immediate. At this point, the alleged injury is only conjectural or hypothetical. Thus, Plaintiff lacks standing to bring this action. 2. Plaintiffs Claims Are Not Ripe for Adjudication. Plaintiff s claims are likewise not ripe for adjudication. Ripeness is a question of timing which is designed to prevent courts from entangling themselves in abstract disagreements that have not, and may never, come to pass. Regional Rail Reorg. Act Cases, 419 U.S. 102 (1974); Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). A basic tenet of the doctrine of ripeness is that a matter is considered premature for judicial review when the alleged injury is speculative or may never occur. Kallstrom v. City of Columbus, 136 F.3d 1055, 1068 (6th Cir. 1998). Ripeness goes to the subject matter jurisdiction of the court; a court has no jurisdiction to adjudicate an unripe claim. Bigelow v. Michigan Dep t of Natural Res., 970 F.2d 154, 160 (6 th Cir. 1992). In this case, Plaintiff has not produced admissible evidence of any specific voter being intimidated or threatened in North Carolina throughout the early voting process. Thus, this 17

18 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 18 of 22 remains a classic case of an abstract or speculative injury. Accordingly, the Court lacks subject matter jurisdiction over this matter. 3. Plaintiff Has Failed to State A Valid Claim Under the Voting Rights Act. To prevail under Section 11(b) of the Voting Rights Act, a plaintiff must allege and prove: (1) that there was an intimidation, threat or coercion, or an attempt to intimidate, threaten or coerce and (2) that the intimidation or attempt was for the purpose of interfering with the right to vote. Am. Fed n of State, Cty. & Mun. Employees, Council 25 v. Land, 583 F. Supp. 2d 840, 846 (E.D. Mich. 2008); accord Parson v. Alcorn, 157 F. Supp. 3d 479, 498 (E.D. Va. 2016). Claims under this provision are very difficult to prevail upon. See, e.g., United States v. Brown, 494 F. Supp. 3d 440, 447 (S.D. Miss. 2007) (court unable to find a case in which plaintiffs have prevailed under this section; Parson, 157 F. Supp. 3d at 498, 499 (finding no likelihood of success on the merits). Here, of course, there is no evidence establishing any actual intimidation, threat, or coercion, or attempt to do so. Nor is there any evidence of the second prong, that any intimidation or attempt was for the purpose of interfering with the right to vote. As noted supra, the facts of this case are far from rising to the level of the allegations in Daschle v. Thune, No. 04-cv-4177, Docket No. 6 (D.S.D. Nov. 2, 2014). Thus, Plaintiff has not stated a claim, nor shown the likelihood of prevailing on its claim under Section 11(b) of the Voting Rights Act. 4. Plaintiff Has Failed to State a Claim Under 42 U.S.C. 1985(3). Plaintiff has also failed to prove a valid claim under 42 U.S.C. 1985(3). In order to establish a claim under 42 U.S.C. 1985(3), a plaintiff must allege and prove that two or more persons [have] conspire[ed] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election. 42 U.S.C. 1985(3). The elements of this claim are this broken down as (1) a 18

19 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 19 of 22 conspiracy, (2) to prevent a lawful voter from supporting a candidate in a federal election by force, intimidation, or threat; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived of any right or privilege of a citizen of the United States. See United Bd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, (1983). Here, there is no evidence of any agreement to prevent any lawful voters from supporting a federal candidate by force, intimidation, or threat. All Plaintiff can point to are vague general comments about guarding against voter fraud by poll watching. Plaintiff has shown no statements by anyone directing anyone in North Carolina to prevent a lawful voter from voting, let alone statements by the North Carolina Republican Party. The only competent evidence relevant to any agreement to prevent a voter from participating in an election before the Court is that no such agreement existed, at least none involving the North Carolina Republican Party. See Woodhouse Decl.; Williams Decl. Likewise, Plaintiff has not produced admissible evidence of any act in furtherance of this nonexistent conspiracy whereby a person was actually injured or deprived of his or her rights or privileges. Plaintiff cannot succeed on the merits of a claim under 42 U.S.C. 1985(3). D. Plaintiff s Complaint and Requested Relief are not in the Public Interest. Finally, Plaintiff s request for emergency relief should also be denied because the issuance of a temporary restraining order would cause substantial harm to non-parties, and would be contrary to the public interest. 1. The Requested Injunction Would Confuse the Public. The requested injunction, apart from its dubious legal foundation, is also vague as to its extent and the identity of the individuals covered by it. It would cause confusion to individuals and 19

20 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 20 of 22 entities not formerly affiliated with the North Carolina Republican Party or any other Defendant, but having some lesser affiliation, perhaps including general political allegiance and support for the same candidates. This is improperly and impermissibly vague and broad. Whenever the extraordinary writ of injunction is granted, it should be tailored to restrain no more than what is reasonably required to accomplish its ends. Particularly is this so when preliminary relief, on something less than a full record and full resolution of the facts, is granted. Consolidation Coal Co. v. Disabled Miners of Southern West Virginia, 442 F.2d 1261, 1267, (4th Cir. 1971). The Court should reject Plaintiff s request on this ground, as well as the others stated. 2. The Motion Seeks Impermissible, Content-Based Restrictions on Political Speech. Because our republic and system of government depends upon the free exchange of ideas, the First Amendment forbids laws abridging the freedom of speech. U.S. Const., Am. 1. Political speech is at the core of what the First Amendment is designed to protect. Morse v. Frederick, 551 U.S. 393, 403 (2007). The First Amendment affords the broadest protection to such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people. McIntyre, v. Ohio Elections Comm n, 514 U.S. 334, 336 (1994) (quoting Buckley v. Valeo, 424 U.S. 1, (1976) (per curiam)). Plaintiffs Complaint relies on numerous statements that are unambiguously protected political speech. See, e.g., Complt., 22-33, 35, 43. As Plaintiff is well aware, candidates are perfectly within their rights to encourage their supporters to serve as poll watchers. And supporters of opposing candidates are perfectly within their rights to debate whether an election is at risk of being rigged because of media bias or because of voter fraud. However, upsetting the Plaintiff may find these views when expressed by the other party, it does not have the right to restrict them. 20

21 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 21 of 22 As a Nation, we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate. Snyder v. Phelps, 562 U.S. 443, 461 (2011). Nevertheless, based upon these statements, Plaintiff asks the Court to issue vague injunctions forbidding harassment or intimidation of voters, defined to include, among other things, suggestions of legal or criminal action and citizen journalist initiatives. Complt. at This would impermissibly chill the rights of any third parties who have any vague or arguable association with Defendants, i.e., they support the same candidate for political office. In sum, the balancing of each factor to be considered by the Court weighs heavily and unmistakably towards denying Plaintiff s motion. CONCLUSION Wherefore, the North Carolina Republican Party requests that the Court deny Plaintiff s request for an injunction against it, deny all of Plaintiff s requested relief, and grant the North Carolina Republican Party whatsoever other relief the court may find just and proper. Respectfully submitted this the 7 th day of November, STARK LAW GROUP, PLLC By: /s/ Thomas H. Stark /s/ Seth A. Neyhart Thomas H. Stark State Bar No Seth A. Neyhart State Bar No Farrington Road, Suite 300 Chapel Hill, North Carolina Telephone: (919) Facsimile: (919) thomas@starklawgroup.com 21

22 Case 1:16-cv CCE-JEP Document 11 Filed 11/07/16 Page 22 of 22 CERTIFICATE OF SERVICE This is to certify that the undersigned has this date served a copy of the foregoing Memorandum in Opposition to Motion for TRO via CM/ECF to the following: Marc E. Elias John R. Wallace Kieran Shanahan This the 7th day of November, STARK LAW GROUP, PLLC By: /s/ Seth A. Neyhart Thomas H. Stark State Bar No Seth A. Neyhart State Bar No Farrington Road, Suite 300 Chapel Hill, North Carolina Telephone: (919) Facsimile: (919) thomas@starklawgroup.com 22