Critics of North Carolina’s photo voter identification law will not be able to reopen discovery in their federal lawsuit challenging the law. A judge questioned whether ID critics had acted in “good faith” while denying their request Tuesday for additional discovery.
Discovery involves collecting documents and conducting interviews while preparing for trial.
US Magistrate Judge Patrick Auld determined that ID critics had identified no evidence of “excusable neglect” that would permit reopening of discovery that originally ended in 2020. The federal lawsuit dates back to 2018.
“[T]he Court consistently has enforced scheduling order deadlines (against all parties) in the interest of keeping the case on track for trial,” Auld wrote in his 31-page order. “The specter of the 2024 elections on the horizon strongly supports sticking to that tack and concomitantly counsels against any ‘delays [that] could  jeopardize the Court’s ability to reach final judgment in advance of the impending election cycle,’ in light of the importance of ‘bring[ing] certainty and confidence to the voting process.’”
Auld also focused on the “reason for the delay” in the plaintiffs’ request for additional discovery.
“Put simply, Plaintiffs made a tactical choice not to timely serve the proposed (or apparently any) discovery demands on the Elections Board and now regret that choice; however, for decades, courts have held that ‘[d]eliberate tactics do not create excusable neglect,’” the judge wrote.
“For a period of time, Plaintiffs’ bet paid off, as (without ever serving discovery demands on the Elections Board) Plaintiffs secured a preliminary injunction and with it a finding ‘that Plaintiffs ha[d] demonstrated a clear likelihood of success on the merits of their discriminatory intent claims,’” Auld wrote, referencing an injunction ID critics secured from District Judge Loretta Biggs in 2019. The 4th US Circuit Court of Appeals later threw out that injunction.
While the federal lawsuit proceeded, ID critics secured a favorable state court ruling against the 2018 ID law. The state Supreme Court overturned that ruling and reinstated voter ID in April. Voters are expected to show a photo ID for this year’s municipal elections.
“Regardless of what precise considerations animated Plaintiffs’ thinking during that period, the fact remains that ‘[w]ait-and-see is a risky tactic, not … excusable neglect,’” Auld wrote.
“Only after the North Carolina Supreme Court dismissed the state court litigation, a possibility Plaintiffs always knew could occur and always knew they must guard against within the confines of this case … — and it became clear that the trial of this case remained necessary – did Plaintiffs request that the Court reopen the discovery period.”
Auld cited a 10-year-old court ruling in a different case. “The Court is loathe to go to the extreme and characterize Plaintiffs’ actions with respect to waiting to [raise these issues] as bad faith. It does not appear, however, that the calculated decision to wait this [long] before asking to reopen discovery was in good faith.”
The court “notes particularly the shifting nature of Plaintiffs’ positions regarding delay,” Auld wrote. When state legislative leaders attempted to intervene in the lawsuit to defend the ID law, “Plaintiffs trumpeted their opposition to ‘delay[s in] the resolution of this case’ and even went so far as to accuse the Legislative Leaders (A) of plotting to ‘delay the various stages of this case, to include discovery … and trial,’ and (B) of ‘gratuitously slowing this lawsuit.’”
“Within less than a year, however, Plaintiffs (not the Legislative Leaders) came before the Court having missed discovery-related deadlines and seeking a lengthy extension of the discovery period (without any meaningful explanation),” the judge added.
“By the following year, Plaintiffs had switched back to adamant, anti-delay advocacy,” Auld wrote. “But now Plaintiffs have asked that the Court reopen discovery and risk a delay in the resolution of this case beyond the next major election season.”
“Even adopting the most generous reading of the foregoing events, ‘the Court cannot say that [Plaintiffs’] conduct was in good faith,’” Auld wrote.
“With all of the other pertinent factors tilting decidedly against Plaintiffs, the Court concludes that they have not established excusable neglect under Federal Rule of Civil Procedure 6(b)(1)(B) for their untimely request to serve discovery demands on the Elections Board,” he concluded.
Discovery in the federal voter ID lawsuit ended in June 2020. At that time, a trial was scheduled for January 2021.
A federal judge delayed that trial and later blocked the case from moving forward. In the meantime, the state Supreme Court ruled in April that the ID law is constitutional.
Republican state legislative leaders and the Democrat-led State Board of Elections both objected to additional discovery in the federal suit.
Lawmakers warned that additional discovery could delay resolution of the federal lawsuit until after the 2024 election.
“Legislative Defendants oppose the overall attempt by Plaintiffs selectively to reopen discovery in an apparent bid to expand upon the evidentiary record that was settled years ago,” according to a document legislative leaders filed on Aug. 16.
Lawmakers reminded the court that ID critics attempted to shut the General Assembly out of the federal lawsuit. An 8-1 ruling from the US Supreme Court in June 2022 enabled Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, to take part in the case.
“Legislative Defendants, at the insistence of Plaintiffs, were foreclosed from participation in this matter and had no opportunity to engage in discovery, take any depositions, or submit any rebuttal expert reports or other rebuttal evidence in response to the record created by Plaintiffs,” legislators’ lawyers wrote. “Reopening discovery just for Plaintiffs under these circumstances would be inequitable and highly prejudicial.”
The document also referenced the potential impact on future elections. “Legislative Defendants further oppose Plaintiffs’ efforts to reopen discovery because doing so would almost certainly ensure there would be no final resolution of the issues in this case until after the 2024 election-cycle — a delay that is neither warranted nor necessary.”
A stay issued in December 2021 placed the case in limbo. Plaintiffs challenging the ID law returned to federal court this year after the state Supreme Court’s April ruling allowed the ID requirement to move forward.
Auld determined during a July 26 hearing that ID critics would not be allowed to request additional information or conduct interviews with lawmakers.
Berger and Moore urged Auld to decide that the case should move forward based on discovery conducted by June 2020. “It would be entirely inequitable to Legislative Defendants to allow Plaintiffs to alter the existing evidentiary record and obtain and introduce new evidence, when Legislative Defendants, at the insistence of Plaintiffs, had no opportunity to conduct discovery, depose Plaintiffs’ witnesses, or submit rebuttal expert reports of their own,” legislators’ lawyers wrote.
“Further, this is a situation entirely of Plaintiffs’ own making,” Berger and Moore’s legal team added. “While Plaintiffs attempt to excuse their neglect by pointing to the fact that this case was stayed pending resolution of the Legislative Defendants’ intervention motion, Plaintiffs’ decision to not identify experts and submit expert reports … by the agreed April 15, 2020, deadline predates the order staying this case.”
Lawmakers emphasized the prospect of a lengthy court proceeding. “Legislative Defendants are willing to stand on the existing preliminary injunction record and to proceed with obtaining a decision on the pending summary judgment papers to bring an end to this litigation,” Berger and Moore’s lawyers wrote. “Plaintiffs, who had a full and complete opportunity to obtain discovery and develop the existing record and who decried the prejudice that would result from any delay in a resolution, are ironically the ones asking the Court to proceed down a path destined to create a substantial delay.”
“[I]f summary judgment is not granted, it is almost inevitable that reopening discovery now will lead to a trial only after the 2024 election-cycle in order to have sufficient time to allow for equitable discovery, avoid voter confusion, and not violate the teachings of Purcell,” lawmakers’ lawyers warned. “This delay is entirely avoidable by proceeding on the record as it existed at the preliminary injunction stage and as it stood when discovery closed.”
Purcell is the 2006 US Supreme Court precedent calling on federal judges not to issue decisions “that could change election rules on the eve of an election.”
“If Legislative Defendants, who have had no opportunity for discovery, are willing to proceed with the current evidentiary record, then Plaintiffs, who have claimed for years that they want this case resolved expeditiously and who have had every discovery opportunity, on a schedule they agreed to, have no basis for seeking a different result,” Berger and Moore’s lawyers concluded.
In a separate court filing, the State Board of Elections explained its objections to reopening discovery in the case.
“Plaintiffs have not filed a motion seeking an extension of the discovery period, but that is effectively what they seek with this request,” the elections board’s lawyers wrote. “Therefore,
the State Board respectfully requests that this motion be treated as a motion to extend the
discovery deadline after the time has expired pursuant to Rule 6(b)(1)(B). Because Plaintiffs have failed to demonstrate ‘excusable neglect,’ as Rule 6(b)(1)(B) requires, the motion should be denied.”
“State Board Defendants will be prejudiced by Plaintiffs’ request to reopen discovery,” according to the document. “When the Court stayed this case on December 30, 2021, it noted that the risk of prejudice to the litigants was lessened because ‘[s]taying the case [would] not reopen discovery, require additional litigation, or require the parties to change litigation
“Now, however, Plaintiffs seek to use the fact that this case has been on hold for twenty months as a basis for reopening discovery, a strategy that will likely produce the precise consequences that this Court was specifically trying to avoid,” the elections board’s brief continued. “Plaintiffs have served State Board Defendants with numerous new discovery demands, most of which are objectionable and all of which will have the effect of setting back this litigation by months, possibly longer.”
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