STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF DUPLIN SUPERIOR COURT DIVISION

______________
ADRAIN ARNETT, in his individual
capacity, and in his capacity as Chairman of
the Duplin County Republican Party, and
NORTH CAROLINA REPUBLICAN
PARTY, VERIFIED COMPLAINT; MOTION
FOR TEMPORARY, PRELIMINARY,
Plaintiffs, AND PERMANENT INJUNCTION; AND
MOTION FOR EXPEDITED
v. DISCOVERY

THE NORTH CAROLINA STATE BOARD

OF ELECTIONS; DAMON CIRCOSTA, in
his official capacity as CHAIR OF THE
STATE BOARD OF ELECTIONS; STELLA
ANDERSON, in her official capacity as
SECRETARY OF THE STATE BOARD OF
ELECTIONS; JEFF CARMON III, in his
official capacity as MEMBER OF THE
STATE BOARD OF ELECTIONS; KAREN
BRINSON BELL, in her official capacity as
EXECUTIVE DIRECTOR OF THE STATE
BOARD OF ELECTIONS,

Defendants.

May the state agency responsible for election administration shield certain ballots from

challenges to their validity, while subjecting others to the possibility of rigorous scrutiny? State

law and the state Constitution say no, but the North Carolina State Board of Elections (“State

Board”) says yes. The State Board is illegally preventing voters from observing the processing of

mail-in ballots and thus withholding from voters any assurance that the laws are followed and all

valid votes counted.

Plaintiffs Adrain Arnett (“Arnett”) and the North Carolina Republican Party (“NCRP”)

bring this action for preliminary and permanent injunctive relief against Defendants the North
Carolina State Board of Elections; Damon Circosta, in his official capacity as Chair of the State

Board of Elections; Stella Anderson, in her official capacity as Secretary of the State Board of

Elections; and Jeff Carmon III in his official capacity as a Member of the State Board of Elections;

and Karen Brinson Bell, in her official capacity as Executive Director of the State Board of

Elections. Plaintiffs allege as follows:

BACKGROUND

1. This is an action to compel transparency in the pre-election day processing of

absentee by mail ballots to ensure that all eligible votes count, once. Sunshine is the best

disinfectant.

2. A surge in absentee by mail voting is occurring in the November 2020 election

because of the ongoing coronavirus pandemic. The website for the North Carolina Board of

Elections reports, as of October 2, 2020, that 1,157,606 persons have requested an absentee ballot.

See https://www.ncsbe.gov//. Moreover, as of that same date, 340,795 absentee by mail ballots

have been cast by North Carolina voters. Each absentee ballot must comply with statutory

safeguards such as a witness requirement. N.C. Gen. Stat. § 163-231. A simple review of the

container-return envelope enclosing the ballot can determine whether a ballot complies with these

safeguards. But the county boards of election’s processing of those ballots and their review of the

container-return envelopes is largely occurring in secret.

3. Beginning September 29, 2020, members of the various North Carolina county

boards of election began meeting at least weekly to approve or disapprove absentee by mail ballots

based largely on this secret work taking place out of public view. But North Carolina law requires

the State Board of Elections to “establish procedures to provide appropriate safeguards” in the pre-

processing of absentee by mail ballots. N.C. Gen. Stat. § 163-230.1(g). And Defendants’ failure

to establish such clear safeguards threatens Plaintiffs’ rights. Therefore, Plaintiffs request that this

2
Court order Defendants to comply with the Constitution and state law and issue guidance to the

county boards of election providing a clear process by which the public may:

(a) timely inspect the container-return envelopes of absentee by mail ballots that have

been approved and disapproved during any processing that takes place prior to

election day;

(b) lodge challenges to the approvals or disapprovals during county absentee meetings

and continuing through election day;

(c) have their challenges adjudicated by the county board before any challenged ballots

are tabulated; and,

(d) appeal the adjudication of those challenges by the county board using the same

process that would be used to appeal adjudications of challenges during the period

during and after election day.

4. State law does provide a narrow window for absentee by mail challenges on

election day. Under normal circumstances, this window of time is sufficient because absentee by

mail voting is exponentially lower. But the absentee by mail voting surge combined with

Defendants’ refusal to implement additional procedures to safeguard absentee by mail voting

virtually guarantees that Plaintiffs’ challenge rights will be lost and ineligible votes will be

tabulated, thus diluting eligible votes in violation of the Constitution. Further, if voters may

challenge some ballots during a tiny window on and after election day, the Constitution mandates

that voters must have the right to challenge all ballots in the same manner.

5. Contrast this to in-person absentee voting, commonly referred to as early voting.

This year such early voting will span multiple weeks. During that time, observers may observe

the voting process and voters may challenge ineligible votes. The same observer and challenge

3
opportunities are available for in-person election day voting. In light of the surge in absentee by

mail votes caused by the pandemic, Defendants’ refusal to implement transparency-focused

procedures arbitrarily and unconstitutionally subjects in-person voters to disfavored treatment

compared with absentee by mail voters. The constitutional cure for this set of circumstances is

simple: open up the absentee by mail process to public scrutiny so that all voters are treated the

same regardless of the method they use to vote.

6. Plaintiffs’ concerns about safeguards in this process are warranted, especially with

regard to absentee ballots. According to the Commission on Federal Election Reform—a bipartisan

commission chaired by former President Jimmy Carter and Secretary of State James A. Baker III,

and cited extensively by the U.S. Supreme Court—absentee voting is “the largest source of

potential voter fraud.” Building confidence in U.S. Elections 46, https://bit.ly/3dXH7rU (the

“Carter-Baker Report”).

7. Courts repeatedly caution that absentee ballots are uniquely susceptible to fraud.

As Justice Stevens noted, “flagrant examples of [voter] fraud ... have been documented throughout

this Nation’s history by respected historians and journalists,” and “the risk of voter fraud” is “real”

and “could affect the outcome of a close election.” Crawford, 553 U.S. at 195-196 (plurality op.

of Stevens, J.) (collecting examples). Similarly, Justice Souter observed that mail-in voting is “less

reliable” than in-person voting. Crawford, 553 U.S. at 212, n.4 (Souter, J., dissenting) (“‘election

officials routinely reject absentee ballots on suspicion of forgery’”); id. at 225 (“absentee-ballot

fraud … is a documented problem in Indiana”).

8. Plaintiffs now seek declaratory and injunctive relief from this Court to prevent the

violation of state law and constitutional rights.

JURISDICTION AND VENUE

9. Jurisdiction is proper in this Court.

4
 10. Venue is proper under N.C. Gen. Stat. § 1-82.

PARTIES

11. Adrain Arnett is a registered voter in Pink Hill, Duplin County, North Carolina, and

intends to vote absentee in-person. As such, Arnett’s vote is subject to observation and challenge

while similar voters voting absentee by mail will not be subjected to observation and challenge

because of Defendants’ lack of transparency and the surge of absentee by mail votes caused by the

pandemic. In addition, Arnett has a serious concern that his vote will be negated by improperly

cast or fraudulent absentee by mail ballots.

12. Arnett is also Chairman of the Duplin County Republican Party. In that capacity,

he is responsible for ensuring a fair election by recruiting and organizing voters to monitor the

election when allowed by law. This includes selecting observers to monitor the processing of

absentee by mail ballots. The surge in absentee voting caused by the pandemic has made this duty

even more important. Defendants’ actions are thwarting Arnett’s ability to monitor this process by

refusing to allow public participation and monitoring of container-return envelopes and raising

appropriate concerns about absentee by mail voting.

13. Plaintiff NCRP is a North Carolina state political party organization recognized

under state and federal law. See 11 C.F.R. 100.15; N.C. Gen. Stat. § 163-96.

14. A fundamental focus of the NCRP’s mission is to support Republican candidates

running in North Carolina elections. In the 2020 election, the NCRP will be supporting a full slate

of candidates for elected office in the State of North Carolina. In addition, NCRP is recruiting

observers to participate in the pre-election day processing of absentee by mail votes and to prepare

any appropriate challenges to ensure all eligible votes count. Defendants’ actions are preventing

NCRP and its members from participating in the process and exercising their rights under state

law.

5
 15. Defendant North Carolina State Board of Elections is the agency responsible for

the administration of the election laws of the State of North Carolina.

16. Defendant Damon Circosta is the Chair of the North Carolina State Board of

Elections. Mr. Circosta is sued in his official capacity.

17. Defendant Stella Anderson is the Secretary of the North Carolina State Board of

Elections. Ms. Anderson is sued in her official capacity.

18. Defendant Jeff Carmon III is a Member of the North Carolina State Board of

Elections. Mr. Carmon is sued in his official capacity.

19. Defendant Karen Brinson Bell is the Executive Director of the North Carolina State

Board of Elections. Ms. Brinson is sued in her official capacity.

STATEMENT OF FACTS

20. In 2001, the General Assembly made absentee voting available to all voters, who

may choose to vote absentee for no stated reason. N.C. Gen. Stat. § 163-226(a). But recognizing

that absentee voting is less transparent than voting in person, the General Assembly has for a long

time adopted several related provisions to ensure that absentee voting would be conducted without

fraud or suspicion of fraud, that absentee voting could be administered in an efficient and fair way,

and that public confidence in the election process and results would be maintained.

21. A witness requirement is among those provisions. To cast a valid absentee ballot,

North Carolina law ordinarily requires voters to mark a ballot “in the presence of two persons who

are at least 18 years of age,” and to “[r]equire those two persons . . . to sign application and

certificate as witnesses and to indicate those persons' addresses.” N.C.G.S. § 163-231(a). In June

2020, in light of the ongoing pandemic, the North Carolina General Assembly reduced the number

of required witnesses to one. S.L. 2020-17 § 1.(a). The law requires the witness to print and sign

his name and address on the container-return envelope in which the ballot is enclosed.

6
 22. On August 21, 2020, Defendant Bell issued Numbered Memo 2020-19 to address

absentee processes (“August Memo 2020-19”). A copy of August Memo 2020-19 is attached as

Exhibit A. The memo stated that county board staff would review the container-return envelopes

for compliance with the statutorily-mandated requirements, such as the witness requirement. The

memo provided a process to cure or otherwise address deficiencies.

23. August Memo 2020-19 also addressed county board meetings at which absentee by

mail ballots would be processed. August Memo 2020-19 at p. 6. The memo acknowledged the

likelihood of increased numbers of absentee by mail ballots this year and stated that additional

guidance would be forthcoming regarding processing of the increased volume of such ballots.

24. That additional guidance purportedly came in the form of Numbered Memo 2020-

25 which was not issued until September 22, 2020. A copy of Memo 2020-25 is attached as Exhibit

B. Memo 2020-25 stated that county boards would begin acting upon absentee by mail ballots

starting September 29, 2020. Memo 2020-25, at p.1.

25. Memo 2020-25 states that members of the public will be able to attend the county

board absentee meetings but will not be permitted to speak or otherwise raise challenges to the

board’s action on absentee ballots. Memo 2020-25, at p. 3. Moreover, the Memo allows the county

board to delegate most of the absentee ballot review process to staff and provides no mechanism

for public participation or oversight of that work. Memo 2020-25, at pp. 4-5. For ballots that staff

recommend for approval, the Memo permits the county board members to forego any review of

the container-return envelopes altogether. Memo 2020-25, at p. 5. Finally, Memo 2020-25

acknowledges that the container-return envelopes are public records under state law except for

limited confidential portions. Memo 2020-25, at pp. 9-10. However, the Memo provides no

7
guidance or direction to the county boards to ensure members of the public may review the

envelopes prior to election day.

26. North Carolina law provides a narrow window for challenges to absentee by mail

ballots. State law permits challenges to absentee by mail ballots for a few hours on election day

and on the day following the receipt deadline for such ballots. N.C. Gen. Stat. § 163-89(a). In

most years, absentee by mail voting is one of the least used forms of voting. For instance such

voting accounted for approximately only 4% of all votes cast in the 2016 general election. See

https://www.ncsbe.gov//. Under normal circumstances there is sufficient time to obtain and

review container-return envelopes and ensure that all eligible votes count. However, the pandemic

has caused a surge in absentee by mail voting and the number of such votes cast will be

exponentially higher than 4% of all votes.

27. The surge in absentee by mail voting combined with Defendants’ lack of

transparency in the pre-election day processing of those ballots will make it effectively impossible

for election day challenges to occur and virtually guarantee that eligible votes will be disapproved

and ineligible ballots will be counted. It also creates an unconstitutionally unequal status among

voters who vote absentee by mail versus voters who vote in-person, whether through early voting

or on election day. In-person voters will have their votes subject to being challenged by observers

who will have the information necessary to lodge any such challenge. On the other hand,

challenging absentee by mail voters will be effectively impossible without timely access to the

container-return envelopes and a process for lodging and adjudicating challenges prior to election

day.

28. North Carolina law requires Defendants to “establish procedures to provide

appropriate safeguards” in the pre-election day processing of absentee by mail ballots. N.C. Gen.

8
Stat. § 163-230.1(g). The pandemic has created a surge in mail voting that does not typically occur

and may not occur again in the future. Safeguards are urgently needed to ensure that this surge

does not result in unequal challenge processes, the dilution of valid in-person votes from ineligible

votes, and the failure to count valid mail votes. At a minimum, such safeguards should include

timely access by the public to the container-return envelopes and a pre-election day challenge

procedure for this election.

29. On September 22, 2020, Defendants issued a revised version of Memo 2020-19

(the “September Memo 2020-19”). The September Memo 2020-19, among other things,

eliminated the witness requirement for absentee by mail ballots required by state law. On October

3, 2020, a United States District Court judge issued a Temporary Restraining Order against the

Defendants enjoining their attempted elimination of the witness requirement. Moore v. Circosta,

No. 5:20-CV-507-D (E.D.N.C. Oct. 3, 2020), at D.E. 25 (order granting temporary restraining

order). It is currently unclear whether and to what extent Defendants will follow the witness

requirement. The relief requested by Plaintiffs in this action is therefore even more urgent.

Plaintiffs must have access to the container-return envelopes so that, regardless of what action the

Defendants take as to the witness requirement, Plaintiffs have the information necessary to protect

voters prior to election day.

30. On September 24, 2020, Donald J. Trump for President, Inc. sent Defendant Bell a

letter requesting the relief described herein. A copy of the letter is attached as Exhibit C. The

letter explained the constitutional issues posed by the surge in mail voting combined with the

Defendants’ lack of transparency and procedures.

31. On Tuesday, September 29, 2020, Defendant State Board responded to the letter. A

copy of the response is attached as Exhibit D. In its response, the State Board refused to make any

9
commitment to transparency with respect to both the container-return envelopes and a process for

challenging invalid ballots. Significantly, the State Board took the position that challenges to

deficient absentee by mail ballots are not even allowed under North Carolina law, a proposition

which is demonstrably incorrect. State law plainly allows challenges to absentee by mail ballots

where the “ballot does not comply with the provisions” of the absentee by mail statute. N.C. Gen.

Stat. § 163-89(c).

32. On Tuesday, September 29, 2020, Plaintiffs and many others similarly situated

citizens attempted to observe the processing of mail ballots and container envelopes at numerous

county boards of election meetings throughout the state. True to the instructions issued by

Defendants so far, many voters across the State were denied the right to challenge any ballots,

denied the right to observe the county staff processing the ballots and container-return envelopes,

and denied the right to inspect ballots and container-return envelopes.

33. On Friday, October 2, 2020, at 10:03 a.m., Plaintiff NCRP sent a public records

request regarding the container-return envelopes. The request is attached as Exhibit E. Plaintiff

asked for a response by 2:00 p.m. that day, but as of the date of this Verified Complaint, no response

has been received.

34. Accordingly, this legal action followed.

CLAIMS

COUNT ONE

(Violation of North Carolina Public Records Act)

35. Plaintiffs incorporate all previous allegations set forth herein.

36. The container-return envelopes containing absentee by mail ballots are public

records under the North Carolina Public Records Act, contained in Chapter 132 of the North

Carolina General Statutes.

10
 37. Defendants collectively are an agency of North Carolina government and are the

custodians of these public records. Moreover, Defendants have the authority to compel North

Carolina county boards of election to make these public records available to the public.

38. The Public Records Act provides that custodians of public records “shall permit

any record in the custodian’s custody to be inspected and examined at reasonable times and under

reasonable supervision by any person.” N.C. Gen. Stat. § 132-6(a). In addition, the custodian of

the records “shall, as promptly as possible, furnish copies thereof upon payment of any fees as

may be prescribed by law.” N.C. Gen. Stat. § 132-6(a). The failure to provide access or copies as

provided by the Act is tantamount to denial of the right to such access or copies.

39. Plaintiffs have made a reasonable request to Defendants for access and copies as

required by the Public Records Act. Defendants have refused to provide access or copies of public

records.

40. Defendants’ refusal violates the Public Records Act.

COUNT TWO

(Denial of Equal Protection Under the State Constitution)

41. Plaintiffs incorporate all previous allegations set forth herein.

42. Article I, Section 19 of the state constitution guarantees to all North Carolina

citizens the equal protection of the laws.

43. The right to vote on equal terms is a fundamental right. The North Carolina

Supreme Court has stated that “[n]o right is more precious in a free country than that of having a

voice in the election of those who make the laws under which, as good citizens, we must live.”

Blankenship v. Bartlett, 363 N.C. 518, 521 (2009).

44. Equal protection requires that “one person’s vote must be counted equally with

those of all other voters in a State.” Reynolds, 377 U.S. at 560. In other words, “whenever a state

11
or local government decides to select persons by popular election to perform governmental

functions, [equal protection] requires that each qualified voter must be given an equal opportunity

to participate in that election … .” Hadley, v. Junior College District, 397 U.S. 50, 56 (1968).

45. Therefore, the government is prevented from treating similarly situated voters

differently without a compelling justification for doing so. Bush v. Gore, 531 U.S. 98, 104-5

(2000) (“[H]aving once granted the right to vote on equal terms, the State may not, by later

arbitrary and disparate treatment, value one person’s vote over that of another.”). The requirement

of equal treatment is stringently enforced as to laws that affect the exercise of fundamental rights,

including the right to vote.

46. Moreover, the government must “‘avoid arbitrary and disparate treatment of the

members of its electorate.’” Charfauros v. Bd. of Elections, 249 F.3d 941, 951 (9th Cir. 2001)

(quoting Bush, 531 U.S. at 105); see also Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“[A]

citizen has a constitutionally protected right to participate in elections on an equal basis with other

citizens in the jurisdiction.”); Gray, 372 U.S. at 380 (“The idea that every voter is equal to every

other voter in his State, when he casts his ballot in favor of one of several competing candidates,

underlies many of [the Supreme Court’s] decisions.”).

47. “[T]reating voters differently” is particularly unlawful when the disparate treatment

is the result of arbitrary, ad hoc processes. Charfauros, 249 F.3d at 954. Indeed, a “minimum

requirement for non-arbitrary treatment of voters [is] necessary to secure the fundamental right [to

vote].” Bush, 531 U.S. at 105.

48. Allowing the pre-election day processing of absentee by mail ballots under the

Defendants’ current procedures creates an unconstitutionally unequal status among voters who

vote absentee by mail versus voters who vote in-person, whether through early voting or on

12
election day. In-person voters will have their votes subject to being challenged by observers who

will have the information necessary to lodge any such challenge. On the other hand, challenging

absentee by mail voters will be effectively impossible without timely access to the container-return

envelopes and a process for lodging and adjudicating challenges prior to election day. In addition,

allowing the pre-election day processing of absentee by mail ballots under the Defendants’ current

procedures also creates an unconstitutionally unequal status among voters whose ballots are

processed on election day and are challengeable versus those that arrive early and are pre-

processed without the same ability to challenge. Plaintiffs and other similarly situated voters have

been denied equal treatment under the Fourteenth Amendment to the U.S. Constitution.

49. Defendants, through their acts or omissions, have infringed upon the equal

protection rights of Plaintiffs, their members, and all qualified North Carolina voters.

50. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable

harm to their constitutional rights unless Defendants are enjoined from pre-processing and

counting absentee by mail ballots without the safeguards required by state law and necessary to

prevent the violation of Plaintiffs’ constitutional rights.

COUNT THREE

(Injunctive Relief)

51. Plaintiffs incorporate all previous allegations set forth herein.

52. Defendants are refusing to allow Plaintiffs and those similarly situated to Plaintiffs

to challenge absentee by mail ballots that do not comply with state law.

53. Through their violation of the Public Records Act, Defendants are also refusing to

give Plaintiffs and those similarly situated to Plaintiffs the information they need to determine if

challenges are appropriate and to ensure all eligible votes count.

13
 54. Defendants are processing and counting absentee by mail ballots without

complying with North Carolina law allowing access and inspection of the process and the ability

to challenge invalid ballots.

55. Because of the surge in absentee by mail ballots, there will not be enough time to

inspect container-return envelopes to ensure compliance with state law if this Court does not issue

injunctive relief requiring compliance with state law.

56. If Defendants do not provide a process for challenging improper absentee by mail

ballots, Plaintiffs will lose their right to challenge such ballots and Defendants will irreparably

violate the equal protection rights of Plaintiffs and those similarly situated.

57. The Court should issue injunctive relief compelling compliance with state law as

described above to avoid irreparable injury to Plaintiffs and scores of North Carolina voters.

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Court enter judgment in their favor and award the

following relief:

(a) A declaratory judgment that the pre-election day processing of absentee by mail

ballots without the public’s timely access to container-return envelopes or a pre-

election day challenge process violates the equal protection clause of the state

constitution;

(b) A declaratory judgment that the requested container-return envelopes are public

records pursuant to the Public Records Act and that requires Defendants to make

the records available to Plaintiffs immediately as requested by Plaintiffs in the

public records request described in this Verified Complaint;

14
(c) A permanent injunction prohibiting Defendants from continuing the pre-election

day processing of absentee by mail ballots without the public’s timely access to

container-return envelopes or a pre-election day and election day challenge

process;

(d) Temporary and preliminary injunctive relief in the form specified above during

the pendency of this action;

(e) Treat this Verified Complaint as a motion for a temporary restraining order under

Rule 65 of the North Carolina Rules of Civil Procedure, and issue a temporary

restraining order restraining the Defendants in the manner and form described

above;

(f) Pending the issuance of preliminary injunctive relief, treat this Verified Complaint

as a Motion for Expedited Discovery under Rules 26(d), 30, 33, and 34, N.C. R.

Civ. P., and grant plaintiff leave to commence expedited discovery immediately

in aid of preliminary injunction proceedings before the Court;

(g) Accord this matter priority and set it down for an immediate hearing pursuant to

N.C. Gen. Stat. § 132-9(1);

(h) Plaintiffs’ reasonable costs and expenses, including attorneys’ fees pursuant to

N.C. Gen. Stat. § 132-9(c) and any other applicable law; and

(i) All other preliminary and permanent relief that Plaintiffs are entitled to, and that

the Court deems just and proper.

15
Dated: October 5, 2020

Respectfully submitted,

____________________________
G. Braxton Price, N.C. Bar No. 35514
Hunter & Price, P.A.
PO Box 277
Kenansville, NC 28349
Phone: 910-296-9838
Email: [email protected]

Phillip J. Strach, N.C. Bar No. 29456

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
8529 Six Forks Road, Suite 600
Raleigh, North Carolina 27615
Telephone: (919) 789-3179
Email: [email protected]

Counsel for Plaintiffs

44420289.1

16