Bernstein v. Sims, Memo in Support of Motion For Preliminary Injunction

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
Case No. 5:22-cv-00277-BO
LYNN BERNSTEIN, )
)
Plaintiff, )
) MEMORANDUM IN
v. ) SUPPORT OF MOTION
) FOR PRELIMINARY
GARY SIMS, individually and in ) INJUNCTION
his official capacity as Director of the )
Wake County Board of Elections; and )
WAKE COUNTY BOARD OF )
ELECTIONS, )
)
Defendants. )
______________________________________ )
Plaintiff Lynn Bernstein submits this memorandum of law in support of
her contemporaneously filed motion for preliminary injunction.
NATURE OF THE CASE
Plaintiff Lynn Bernstein, a citizen of Wake County and longtime
advocate for transparent elections, brings this action under 42 U.S.C. § 1983
to vindicate her constitutional rights, in particular her First Amendment
rights, her right to vote on equal terms with other Wake County voters, and
her right to due process of law.
Defendants Wake County Board of Elections and its Director deprived
her of these rights on May 14, 2022, when, without warning and without
affording her any due process protections, they “trespassed” Ms. Bernstein,
Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 1 of 37

forever banning her from coming onto Wake County Board of Elections
property, apparently even to cast a vote. Efforts to have the ban reversed by
the Board haven fallen on deaf ears. Therefore, Ms. Bernstein seeks a
preliminary injunction to relieve her of the ongoing deprivation of her
fundamental constitutional rights.
STATEMENT OF FACTS
Even though it recently constructed a large observation area for the
public to view the counting of votes, the Wake County Board of Elections
(“BOE” or “Board”) does not allow the vote count to be observed by the public
on election night, and, in fact, does not allow any observers on the property
after the 2:00 pm meeting on election day, although many other North Carolina
counties allow such observation on election day and election night. (Ex. A:
Lynn Bernstein Decl. ¶ 9.) Ms. Bernstein, founder of Transparent Elections
NC1 and a longtime advocate for elections that are verifiable, reliable, and
trustworthy, believes this practice is contrary to state law, see N.C. Gen. Stat.
§ 163-182.2(a)(3) (“Any member of the public wishing to witness the vote count
at any level shall be allowed to do so.”), and moreover constitutes unsound
1 Ms. Bernstein, who holds a B.S. in Aerospace Engineering, is also a trained

International Election Observer, a member of the Election Verification Network, a
member of the National Voting Rights Task Force, a member of the State Audit
Working Group (SAWG), a member of the Carter Center Advisory Council for Fair,
Safe and Secure Elections in North Carolina, a Board Member of AUDIT USA
Elections, and an active member of the Wake County Democratic Party. (Lynn
Bernstein Decl. ¶¶ 3-4.)
2

policy; therefore, she has advocated for the BOE to change its practices and
become more transparent. (Id. ¶¶ 5-7, 9.)
To raise public awareness of the BOE’s practice of excluding the public
from observations, Ms. Bernstein decided to stage a peaceful, lawful protest
with a small group of individuals on the public right-of-way near the BOE’s
Operations Center located at 1200 N. New Hope Rd, Raleigh, North Carolina
27610. (Id. ¶ 10.) She planned to hold this peaceful protest, on the night of
the 2022 primary election (May 17, 2022) to draw attention to the fact that
observers were not allowed inside the Operations Center on election night.
(Id.) She drove to the area of the Operations Center on the afternoon of May
14, 2022, to find a location where she and others would have a safe and legal
place to protest on that evening. (Id. ¶ 11.) She was accompanied by John
Brakey. (Id.) Mr. Brakey is a nationally known expert in election integrity
and the Director and Co-founder of AUDIT Elections USA, a 501(c)(3) founded
in 2004 to advocate and litigate for public oversight of federal, state, and local
elections. (Id.)
As they drove by the BOE facility on N. New Hope Road, they saw a
yellow sign that read: “Board of Elections Event.” (Id. ¶ 12.) This did not
appear to be a leftover sign from early voting. (Id.) Instead, it indicated an
active Wake BOE event, which would be open to the public. (Id.) According to
guidance Ms. Bernstein has received from an attorney for the North Carolina

State Board of Elections, both BOE “meetings” and “events” are open to the
public. (Id.) In Ms. Bernstein’s experience, the Board does not publicize dates
and times for its “events;” the Board only publicizes dates and times for
“meetings.” (Id.) There have historically been many BOE “events” at the BOE
Operations Center (also commonly called the “Warehouse”) that were open to
the public, but that were never publicly announced or advertised. (Id.)
After driving by the Operations Center, they turned around and drove
back down N. New Hope Road. (Id. ¶ 13.) The Operations Center has two
driveways coming off of N. New Hope Road, leading to two different parking
lots on either side of the BOE building. (Id.) The lot where Ms. Bernstein
normally parks had, on that day, temporary signage stating “No Public
Parking” because the Chief Judges (poll workers) were picking up voting
equipment for the precincts on election day. (Id.) The second parking lot had
automobile activity coming and going and temporary signage stating, “Board
of Elections Event.” (Id.) Ms. Bernstein thus could not park in the lot where
she normally parks and did not want to interfere with, or be accused of
interfering with, the Board of Elections event. (Id.) Therefore, Ms. Bernstein
and Mr. Brakey decided not to park at the Operations Center, even though she
has parked there many times when attending meetings and events at that
facility. (Id.)

Instead, she parked offsite in a parking lot immediately adjacent to, but
not belonging to, the BOE after originally parking briefly (for less than three
minutes) across the street from the BOE’s property. (Id. ¶¶ 14-15.) While
parking in the adjacent lot, they observed Defendant Sims walk out to speak
with a sheriff’s deputy outside of the Operations Center. (Id. ¶ 15.) When Mr.
Brakey exited the vehicle, he was only about 20 feet away from Mr. Sims, on
the other side of the chain link fence. (Id.) Mr. Brakey waved to Mr. Sims and
said, “Hello” (or words to that effect). (Id.) Defendant Sims did not respond or
acknowledge Mr. Brakey’s presence. (Id.)
After parking, Ms. Bernstein and Mr. Brakey walked along the public
right of way beside N. New Hope Road, continuing to look for a good location
for the planned protest. (Id. ¶ 16.) They observed no signs on the BOE
property indicating that the event was “closed” or stating, “No Trespassing.”
(Id. ¶¶ 16-17; see also id. ¶17 & Exs. 2-6 (photographs of area).)
At 4:51 pm, Mr. Brakey and Ms. Bernstein reached the driveway of the
north lot and after a few minutes, began walking up the driveway toward the
BOE “event” while continuing to look for a good place to protest. (Id. ¶ 18.)
Mr. Brakey wanted to get a better look at the signs along the inside of the fence
where the ongoing BOE event was taking place, so he took four or five steps
inside the open gate. (Id.) Subsequently obtained surveillance video shows
this gate had been open all day until the moment Ms. Bernstein and Mr.

Brakey approached it. (Id.) As soon as Mr. Brakey stepped inside the gate,
however, it began to close. (Id.) Mr. Brakey quickly exited to the outside of
the gate, which likely tripped the gate’s safety sensor, causing the gate to
retract. (Id.) The gate closed partway and opened 2 more times while Ms.
Bernstein and Mr. Brakey were in the immediate vicinity of the open gate, so
they moved away from the gate. (Id.)
Ms. Bernstein and Mr. Brakey then continued walking past the BOE
Operations Center towards the sidewalk adjacent to the north side of the BOE
and next to a Walgreens before walking back to Ms. Bernstein’s vehicle. (Id.)
In total, they spent a little more than 60 seconds outside the open gate, all of
which is documented on County surveillance video. (Id. ¶ 19.) Videos showing
the relevant parts of these events are attached to Ms. Bernstein’s declaration
as Exhibits 7 through 10. (Id. ¶ 20 at Exs. 7-10.) Based on video evidence
obtained since that day, Ms. Bernstein now believes Defendant Sims was
himself activating the electronic gate with a remote device at this time. (Id. ¶
21.) The surveillance video that could clearly show what Sims was doing at
this time, however, was withheld and not provided by the County in response
to Ms. Bernstein’s subsequent public records requests for all surveillance video
on that day for the Operations Center and both gates. (Id. ¶¶ 22-23.) The
available surveillance video shows Mr. Sims with something in his hand (such
as a remote control) in addition to his cell phone and sunglasses. (Id. ¶ 21.)

While Ms. Bernstein and Mr. Brakey were standing next to her vehicle
talking, an officer from the Raleigh Police Department arrived and began
speaking with a sheriff’s deputy who works for the BOE at public board
meetings and events. (Id. ¶ 24.) The sheriff’s deputy incorrectly stated that
Ms. Bernstein and Mr. Brakey had “attemped to get in by tampering with the
gate,” which she stated was “closed.” (Id.) Ms. Bernstein and Mr. Brakey
disputed these allegations, and the officers, after one of them made a phone
call to Wake County Security, then conceded the gate was open when Ms.
Bernstein and Mr. Brakey had approached the BOE event. (Id.)
The officers stated specifically that Defendant Sims had ordered that
they be formally “trespassed.” (Id. ¶ 25.) The officers completed paperwork to
document the “trespassing.” (Id.) The officer specifically stated that Ms.
Bernstein and Mr. Brakey had committed no crime, and they were not charged
with committing a crime. (Id.) The officer said, “Well, I’m not saying you, you
did anything wrong. But like I’m saying, you know, if . . . if the person in
charge of that property, they don’t want you there for whatever reason, because
they don’t like what, you know, what party you’re affiliated with, or who you
are or what you represent[.]” (Id.) And later in the conversation, the same
police officer said, “[You] [m]ight, might want to go that route and file some
sort of complaint against whoever this guy is. [It’s] like you’re being
blackballed, you know[.]” (Id.) At 5:56 pm, Ms. Bernstein and Mr. Brakey

departed the parking lot where they were parked. (Id.) The audio recording
of this interaction is Exhibit 11 to Ms. Bernstein’s declaration. (Id. & Ex. 11;
id. at ¶ 28.)
On the morning of May 16, Mr. Brakey and Ms. Bernstein went to the
Raleigh Police station to inquire about the trespass notice and see what
recourse was available. (Id. ¶ 29.) Police confirmed that their names were
listed in law enforcement records for a having a trespass notice issued to them
and that the only way to get the ban removed was to have the “owner or
manager” of the establishment remove it. (Id.)
Also on May 16, 2022, the Wake County BOE held a public meeting. (Ex.
B: Nicholas Bernstein Decl. ¶ 5.) Ms. Bernstein’s husband attempted, in a
calm and professional manner captured in an audio recording, to address the
Board concerning the events of the prior Saturday and ask that the banning of
his wife from BOE property be rescinded. (Id.) He made this plea during the
public comments section of the meeting. (Id.) Ms. Bernstein could not speak
on her own behalf because she was banned from the BOE with the threat of
arrest if she came onto its property. (Id. ¶ 4.) Even though each speaker was
supposed to be allotted two minutes to speak, the Board permitted Ms.
Bernstein’s husband less than two minutes to speak before someone directed a
sheriff’s deputy to remove him from the meeting. (Id. ¶ 5.)

The Board has never discussed the ban publicly and has taken no action
to revoke, suspend, or otherwise modify the permanent and indefinite ban on
Ms. Bernstein at that meeting or at any time since. (Lynn Bernstein Decl. ¶
30.) Ms. Bernstein’s husband returned to speak at two subsequent Board
meetings, on May 17 and May 26, and Ms. Bernstein’s 14-year-old daughter
submitted a written plea to the Board at the May 17 meeting, to ask it to revoke
the ban against her mother; but the Board has taken no action to revoke,
suspend, or otherwise modify the permanent ban on Ms. Bernstein. (Nicholas
Bernstein Decl. ¶¶ 6-7.)
The ban on Ms. Bernstein continues to be in effect and is a permanent
ban. (Lynn Bernstein Decl. ¶ 31.) When Ms. Bernstein asked the Raleigh
Police at what point she could once again enter BOE property, the response
was, “Never.” (Id.) Though not entirely clear from the written trespass
paperwork she was shown, it is Ms. Bernstein’s fear that the “trespassing”
applies to any Wake County BOE property, even if that property is accessed
only for purposes of voting and even if that property is only temporarily under
the Board’s control as a polling place. (Id. ¶ 32.) In light of Defendants’
extremely hostile prior conduct toward her, Ms. Bernstein legitimately fears
that the ban will be interpreted by Defendants in a manner that will inflict as
much harassment and detriment to her rights as possible. (Id. ¶ 32.)

As a result, not only is Ms. Bernstein deprived of the opportunity to
observe and speak at BOE meetings and many other civic and educational
events hosted by the Board, but she also cannot file in person to run for office,
take poll worker training, work as a poll worker, be a political election
observer, return voter registration forms following registration drives, or even
serve as a poll greeter. (Id. ¶¶ 33-34.) And because the BOE does not provide
any means for members of the public to view its meetings and events virtually,
she cannot watch Board meetings or events as they are occurring, let alone
participate and comment remotely. (Id. ¶ 33.)
Ms. Bernstein cannot even vote in-person early or in-person on election
day without fear of adverse action from the BOE. (Id. ¶ 34.) Ms. Bernstein
voted in person in the primary election held on May 17, 2022, a few days after
she was trespassed, because she did not realize at that time that the ban would
likely apply even to her home precinct polling place. (Id.) After physically
coming to her polling place to vote and reflecting on the events afterwards,
however, she became fearful she would be charged with trespass because of the
BOE ban—a fear she continues to have to this day. (Id.) Therefore, she voted
in the 2022 second primary held on July 26, 2022, by means of an absentee
ballot, which her husband had to deliver to the BOE on her behalf. (Id.)
Importantly, in-person voting on election day is the only method of voting
in North Carolina that affords the voter a secret ballot. (Id. ¶ 35.) Early-voted
10

ballots and absentee-by-mail ballots have unique numbers that identify each
voter in case a ballot has to be retrieved after the election, thereby meaning
they are not secret ballots. (Id.)
After being banned, Ms. Bernstein made public records requests under
state law to obtain and preserve the evidence of the events at issue. (Id. ¶ 23.)
While the BOE and Wake County responded to some of the requests, others
remain unfulfilled to this day even after multiple requests. (Id.)
A preliminary injunction is needed to prohibit enforcement of
Defendants’ ban because it impermissibly interferes with Ms. Bernstein’s
ability to engage in effective public advocacy on behalf of herself and her
organization. (Id. ¶¶ 36-39.) Additionally, the ban causes her to fear voting in
person, forcing her to now vote only by absentee ballot. (Id. ¶ 34.)
STANDARD OF REVIEW
Plaintiffs seeking a preliminary injunction under Fed. R. Civ. P. 65(a)
“must demonstrate that (1) they are likely to succeed on the merits; (2) they
will likely suffer irreparable harm absent an injunction; (3) the balance of
hardships weighs in their favor; and (4) the injunction is in the public interest.”
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir.
2014); see Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “While
plaintiffs seeking preliminary injunctions must demonstrate that they are
likely to succeed on the merits, they ‘need not show a certainty of success.’”
11

League of Women Voters, 769 F.3d at 247 (quoting Pashby v. Delia, 709 F.3d
307, 321 (4th Cir. 2013)).
When the government bears the burden of proof on an issue, as in a
challenge under the First Amendment, “the burdens at the preliminary
injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). Thus, “the moving
party bears the initial burden of making a colorable claim that its First
Amendment rights have been infringed, or are threatened with infringement,
at which point the burden shifts to the government to justify the restriction.”
Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011); see Reilly
v. City of Harrisburg, 858 F.3d 173, 180 n.5 (3d Cir. 2017) (“If the moving party
meets the first burden, then the government must justify its restriction on
speech under whatever level of scrutiny is appropriate (intermediate or strict)
given the restriction in question.”) (citations omitted); see also Casey v. City of
Newport, 308 F.3d 106, 111 (1st Cir. 2002).
12

ARGUMENT
I. MS. BERNSTEIN IS LIKELY TO SUCCEED ON THE MERITS OF

HER CLAIMS.2
A. DEFENDANTS’ ACTIONS VIOLATE THE FIRST

AMENDMENT.
1. Defendants’ Ban Is An Unconstitutional Prior Restraint On

Speech.
If Ms. Bernstein attends, let alone speaks at, any future Wake BOE
meeting or event she will be charged with criminal trespass. This is a prior
restraint. A prior restraint “forbid[s] certain communications . . . in advance
of the time that such communications are to occur,” Alexander v. United States,
509 U.S. 544, 550 (1993) (internal quotation marks and citations omitted), and
“‘freezes’ speech before the audience has the opportunity to hear the message,”
In re Providence Journal Co., 820 F.2d 1342, 1346 (1st Cir. 1986).3 Accordingly,
“[p]rior restraints on speech . . . are the most serious and the least tolerable
infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S.
539, 559 (1976).
Ms. Bernstein need not justify her right to speak to the BOE. Instead, it
is Defendants’ duty to prove their prior restraint can overcome the “heavy
2Given the expected need for discovery as to her other claims, Ms. Bernstein limits
this motion to Counts I through III of her Complaint.
3The protections of the First Amendment have been applied to the states and their
subdivisions by means of the Fourteenth Amendment. See McDonald v. Chicago, 561
U.S. 742, 763 (2010) (discussing incorporation of amendments).
13

presumption against its constitutional validity,” Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 70 (1963) (citations omitted), and carry the “heavy
burden of showing justification for the imposition of such a restraint,” Org. for
a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); see, e.g., Twitter, Inc. v.
Sessions, 263 F. Supp. 3d 803, 809-10 (N.D. Cal. 2017) (“[T]o justify a prior
restraint, the government must demonstrate that the restraint is justified
without reference to the content of the speech, and is narrowly tailored to serve
a compelling governmental interest”).
Banning a particular speaker from a government forum, as Defendants
have done here, constitutes an unconstitutional prior restraint. For example,
the Western District of Texas observed that a “restriction targeting the speech
of an individual rather than the public generally is equivalent to an injunction
against speech” and struck down as an unconstitutional prior restraint a rule
banning a parent from making comments before a school board. Wilson v. N.E.
Indep. Sch. Dist., Case No. 5:14-CV-140-RP, 2015 U.S. Dist. LEXIS 132324, at
*15-16 (W.D. Tex. Sept. 30, 2015); see also Hoefer v. Bd. of Educ., Case No. 10
Civ. 3244 (ER), 2017 WL 2462660, 2017 U.S. Dist. LEXIS 86722, at *15-17, 19
(S.D.N.Y. June 6, 2017) (denying defendant board of education’s motion for
summary judgment because a reasonable factfinder could conclude the board
“acted to suppress the viewpoint of [the plaintiff’s] intended speech prior to its
expression, and thus, engaged in unlawful prior restraint”).
14

At the time Ms. Bernstein was trespassed by Defendants, she had
committed no crime and had caused no disruption to BOE business; in fact,
Ms. Bernstein has no criminal record and has never disrupted a meeting of the
BOE or any other public body. (See Lynn Bernstein Decl. ¶¶ 8, 37.)
Nonetheless, despite the absence of any wrongful conduct on her part,
Defendants banned her from BOE property forever. Defendants in this case
are unable to carry their burden of justifying this draconian ban on Ms.
Bernstein from all future BOE meetings and events, including in-person
voting.
2. Defendants’ Ban Fails First Amendment Forum Analysis.
Defendants’ actions fare no better even when viewed exclusively under
the rubric of forum analysis. See generally Minn. Voters All. v. Mansky, 138 S.
Ct. 1876, 1885 (2018) (summarizing forum doctrine). Forum analysis, which
turns on consideration of whether the government space is a traditional public
forum, designated public forum, or nonpublic forum, to determine the level of
First Amendment protection afforded to speakers has been summarized as
follows by the U.S. Supreme Court:
In a traditional public forum—parks, streets,

sidewalks, and the like—the government may impose
reasonable time, place, and manner restrictions on
private speech, but restrictions based on content must
satisfy strict scrutiny, and those based on viewpoint
are prohibited. The same standards apply in
designated public forums—spaces that have not
15

traditionally been regarded as a public forum but
which the government has intentionally opened up for
that purpose. In a nonpublic forum, on the other
hand—a space that is not by tradition or designation
a forum for public communication—the government
has much more flexibility to craft rules limiting
speech. The government may reserve such a forum for
its intended purposes, communicative or otherwise, as
long as the regulation on speech is reasonable and not
an effort to suppress expression merely because public
officials oppose the speaker’s view.
Mansky, 138 S. Ct. at 1885 (internal quotation marks and citations omitted).
Some courts also recognize another category, the “limited public forum,”
though the Fourth Circuit has very recently noted the conflict in authority as
to “whether there are three or four types of free-speech forums” and that the
Supreme Court has “provided conflicting guidance on whether ‘limited public
forum’ is (1) a synonym for or subtype of ‘designated public forum’; (2) a
synonym for ‘nonpublic forum’; or (3) a completely separate fourth category.”
White Coat Waste Project v. Greater Richmond Transit Co., 35 F.4th 179, 196
n.13 (4th Cir. 2022) (citations omitted). A limited public forum has been
defined previously by the Supreme Court as a forum that exists “where a
government ‘reserv[es a forum] for certain groups or for the discussion of
certain topics[.]’” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576
U.S. 200, 201-02 (2015) (citing Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U.S. 819, 829 (1995)).
16

Typically, including in the Fourth Circuit, the time for the public to
address a public board has been regarded as such a “limited public forum.” See,
e.g., Steinburg v. Chesterfield Cnty. Planning Comm’n, 527 F.3d 377, 385 (4th
Cir. 2008) (deeming Commission meeting to be “limited public forum”); see also
Surita v. Hyde, 665 F.3d 860, 870-71 (7th Cir. 2011); White v. City of Norwalk,
900 F.2d 1421, 1425 (9th Cir. 1990) (“City Council meetings . . . once opened,
have been regarded as public forums, albeit limited ones.”); Collinson v. Gott,
895 F.2d 994, 1000 (4th Cir. 1990) (Phillips, J., concurring) (“Speech at public
meetings . . . is entitled to normal first amendment protections against general
restrictions or ad hoc parliamentary rulings by presiding officials.”).4
Defendants’ ban of Ms. Bernstein fails to satisfy the standard applicable to
limited public forums and nonpublic forums because it is (1) unreasonable and
(2) an effort to suppress expression due to governmental opposition to the
speaker’s viewpoint. See Child Evangelism Fellowship of Md., Inc. v.
Montgomery Cnty. Pub. Sch., 457 F.3d 376, 383 (4th Cir. 2006) (stating that in
both limited public forum and nonpublic forum restrictions on speech must be
4 For purposes of this motion, the public comments portion of BOE meetings may be
considered a “limited public forum,” but Ms. Bernstein reserves the right to show
later by evidence that it is more properly classified as a “designated public forum”
and thus subjected to a higher level of First Amendment protections. Cf. N.C. Gen.
Stat. § 153A-52.1 (public comment period at board of commissioners’ meeting not
limited as to subject matter).
17

“reasonable and viewpoint neutral”); see also Davison v. Rose, 19 F.4th 626,
635 (4th Cir. 2021).
Defendants have (apparently) banned Ms. Bernstein indefinitely from
all BOE property, regardless of her purpose for accessing it, which includes
preventing her from speaking at its meetings, even though she has never
previously disrupted any meeting of the BOE. Banning her from all property
also prohibits her from being a greeter at the polling place for a party or
candidate in the area designated for electioneering. Defendants’ total and
indefinite ban is thus limited in neither scope nor duration. This kind of total
and categorical ban is unreasonable. See Spindler v. State Bar of Cal., Case
No. 18-8712-JLS(E), 2019 U.S. Dist. LEXIS 231077, at *24-26 (C.D. Cal. Aug.
16, 2019) (“Defendants cite no authority directly supporting the proposition
that a municipality may ban an individual from attending future public
meetings based on the individual’s prior disruptive conduct.”); Wilson, 2015
U.S. Dist. LEXIS 132324, at *16 (banning of one specific individual from
attending or speaking at school board meetings held unreasonable); see also
Cyr v. Addison Rutland Supervisory Union, 60 F. Supp. 3d 536, 548 (D. Vt.
2014) (“A categorical ban of a single individual from open school board
meetings, however, is not narrowly tailored and does not leave open ample
alternative channels of communication.”); cf. State v. Chiaromonte, Case No.
COA07-534, 2008 N.C. App. LEXIS 707, at *23-24 (N.C. Ct. App. Apr. 15, 2008)
18

(recognizing that, even as to someone convicted of a criminal offense, a civil
action challenging the constitutionality of an “ongoing banishment” from
public property is appropriate). Defendants’ ban further impermissibly
prohibits her from observing BOE meetings in violation of First Amendment,
even if she does not speak at all. See Charping v. Town of Andrews, Case No.
2:16-cv-2692-PMD-BM, 2018 WL 1081500, 2018 U.S. Dist. LEXIS 32121, at
*13 (D.S.C. Feb. 28, 2008) (“[T]he First Amendment provides the right to speak
as well as to listen.”) (emphasis added).
Banning a particular speaker is a viewpoint-based, rather than merely
content-based, restriction. See Theyerl v. Manitowoc Cnty., 41 F. Supp. 3d 737,
742 (E.D. Wisc. 2014) (“By prohibiting [plaintiff] from speaking at all, on any
subject, the restriction cannot reasonably be viewed as a regulation on the
time, manner or place of the speech. It was a viewpoint-based restriction on
the speaker himself and anything else he might say.”). And, the motive for
banning Ms. Bernstein is readily apparent. Defendants do not like the views
expressed in Ms. Bernstein’s advocacy on elections issues, including her prior
criticism of the BOE’s lack of transparency in multiple Board meetings. (See,
e.g., id. ¶ 37.) This animus is evident in a long line of hostile actions toward
Ms. Bernstein that has ranged from blocking her access to public information
to Defendant Sims aggressively approaching Ms. Bernstein and getting in her
face after a Board meeting held on the same day she had written to all BOE
19

members asking for more transparency. (See id. ¶¶ 37-38.) It has now
culminated in her being banned without any objective and legitimate
justification whatsoever. Ms. Bernstein has always been peaceful in her efforts
and has never disrupted any meeting of the BOE (or any other public body).
(Id. ¶¶ 8, 37.) And, neither she nor Mr. Brakey were violating any law on May
14, 2022.5 The only reason for Defendants banning Ms. Bernstein is dislike of
her views and a desire to silence her due to disagreement with her message,
and this is, of course, a wholly unjustifiable motive for restricting her access to
BOE property. See, e.g., Rosenberger, 515 U.S. at 829 (“The government must
abstain from regulating speech when the specific motivating ideology or the
opinion or perspective of the speaker is the rationale for the restriction.”);
ACLU v. Mineta, 319 F. Supp. 2d 69, 86 (D.C. Cir. 2004) (“The government has
articulated no legitimate state interest in the suppression of this particular
speech other than the fact that it disapproves of the message, an illegitimate
and constitutionally impermissible reason.”).
5 The taking of photographs of BOE grounds and even of public officials’ activities
observable from the public right-of-way is not only legal under North Carolina law,
but also constitutionally protected. See Gibson v. Goldston, Case No. 5:21-cv-00181,
2022 WL 2719725, 2022 U.S. Dist. LEXIS 123836, at *23-24 (S.D. W. Va. July 13,
2022) (“The majority of circuits have found the First Amendment protects a citizen’s
right, in general, to record police.”) (citing the First, Third, Fifth, Seventh, Eighth,
Ninth, and Eleventh Circuits); J.A. v. Miranda, Case No. PX 16-3953, 2017 WL
3840026, 2017 U.S. Dist. LEXIS 141643, at *13-14 (D. Md. Sept. 1, 2017) (same).
20

Furthermore, regardless of the type of forum BOE meetings may be, the
ban on Ms. Bernstein arises from the Director’s exercise of unbridled discretion
to have someone trespassed and thus banned for any reason at all. “[E]ven in
limited public and nonpublic forums, investing governmental officials with
boundless discretion over access to the forum violates the First Amendment.”
Child Evangelism Fellowship, 457 F.3d at 386-87. Defendants’ ban, premised
on an absence of evidence and exercised with no limits on the government’s
powers, unconstitutionally deprives Ms. Bernstein of her First Amendment
rights.
Therefore, Defendants’ ban on Ms. Bernstein violates her right to free
speech under the First Amendment.
3. Defendants Are Violating Ms. Bernstein’s Rights Under The

Petition Clause.
Furthermore, Ms. Bernstein is entitled to relief under the Petition
Clause to the First Amendment, which guarantees the right “to petition the
Government for a redress of grievances.” U.S. Const., amend. I. “The right to
petition allows citizens to express their ideas, hopes, and concerns to their
government and their elected representatives[.]” Borough of Duryea v.
Guarnieri, 564 U.S. 379, 388 (2011). “[T]he right to petition is generally
concerned with expression directed to the government seeking redress of a
grievance,” id., and therefore the Petition Clause “protects petitioning of all
21

departments of the Government,” Holzemer v. City of Memphis, 621 F.3d 512,
521 (6th Cir. 2010) (internal quotation marks and citation omitted).
In this case, Ms. Bernstein seeks to have her views heard and considered
by the BOE. Defendants, however, have permanently banned her from
appearing before and addressing the BOE, and the Board does not permit
virtual or remote appearances by the public. The permanent ban on her
participation in meetings of the BOE deprives Ms. Bernstein of her rights
under the Petition Clause.
But Defendants’ constitutional violations do not stop with depriving Ms.
Bernstein of the right to petition in the form of speech. The BOE also possesses
quasi-judicial powers. See, e.g., N.C. Gen. Stat. §§ 163-85 to -.90.5 (ballot
challenges); id. §§ 163-127.1 to -.127.5 (candidacy challenges), § 163-182.10
(election protests). Ms. Bernstein is nevertheless barred from availing herself
of its judicial remedies so long as Defendants’ ban is in place. “The right of
access to the courts is . . . one aspect of the right of petition.” Calif. Motor
Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). By denying Ms.
Bernstein access to the BOE, including in its quasi-judicial capacity,
Defendants are plainly violating the Petition Clause. See Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 896-97 (1984) (“[T]he right of access to courts for redress
of wrongs is an aspect of the First Amendment right to petition the
government.”); see, e.g., ACA Int’l v. Healey, 457 F. Supp. 3d 17, 30-31 (D. Mass.
22

2020) (enjoining under the Petition Clause interpretation of statute to prevent
filing of debt collection lawsuits).
B. DEFENDANTS ARE DENYING MS. BERNSTEIN THE RIGHT

TO VOTE IN VIOLATION OF THE EQUAL PROTECTION
CLAUSE.
Defendants’ ban apparently extends even to property that is temporarily
under the Board’s control for purposes of voting (viz., polling places). As a
result, if Ms. Bernstein wishes to avoid placing herself in legal jeopardy and
subjecting herself to the possibility of being charged with a crime, she may,
from now on, only vote by means of an absentee ballot (which would not be
secret due to the retrievable ballot system mandated by N.C. Gen. Stat. § 163-
230.1(c)).
No other Wake County voter is known to face such a burden imposed on
her right to vote by the BOE. A person who causes a disruption at a polling
place is, by state law, allowed to cast a vote before being removed from the
property. N.C. Gen. Stat. § 163-48 (To maintain order, a precinct chief judge
“may order the arrest of any person violating any provision of the election laws,
but such arrest shall not prevent the person arrested from registering or voting
if he is entitled to do so.”). Even more tellingly, convicted sex offenders who
must register under state law are allowed to access property they would not
otherwise be allowed to visit (such as a school), so long as certain conditions
are met. Id. at § 14-208.18(e).
23

“[I]t is beyond cavil that voting is of the most fundamental significance
under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433
(1992). “[O]nce the franchise is granted to the electorate, lines may not be
drawn which are inconsistent with the Equal Protection Clause of the
Fourteenth Amendment.” Harper v. Va. State Bd. of Elections, 383 U.S. 663,
665 (1966); Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015)
(“‘Having 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.’”) (quoting Bush v. Gore, 531 U.S. 98, 104-05 (2000)). Therefore, “a
citizen has a constitutionally protected right to participate in elections on an
equal basis with other citizens in the jurisdiction,” and “before that right [to
vote] can be restricted, the purpose of the restriction and the assertedly
overriding interests served by it must meet close constitutional scrutiny.”
Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (internal quotation marks and
citations omitted).
To establish a prima facie violation of the Equal Protection Clause, “it is
enough that a plaintiff complains of governmental treatment dissimilar to that
received by others similarly situated.” Republican Party v. Martin, 980 F.2d
943, 953 (4th Cir. 1993) (citation omitted). It is beyond dispute that Ms.
Bernstein has been singled out for disparate treatment by Defendants. “Any
unjustified discrimination in determining who may participate in political
24

affairs or in the selection of public officials undermines the legitimacy of
representative government,” and thus necessitates careful scrutiny before
being upheld. Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626 (1969).
Requiring Ms. Bernstein to vote absentee (and thereby cast a ballot which will
not be secret) constitutes a severe, rather than a minor, restriction on her right
to vote. Crawford v. Marion County Election Bd., 553 U.S. 181, 205 (2008)
(Scalia, J., concurring) (“Burdens are severe if they go beyond the merely
inconvenient.”) (internal quotation marks and citations omitted). When a
restriction on the right to vote is “severe,” it must satisfy strict scrutiny by
being “narrowly drawn to advance a state interest of compelling importance.”
Norman v. Reed, 502 U.S. 279, 289 (1992); see Wood v. Meadows, 207 F.3d 708,
710 (4th Cir. 2000) (citations omitted).
Defendants cannot articulate any compelling interest served by the
restricting of Ms. Bernstein’s right to vote. And, even if they could, a total ban
from BOE property such that she can only vote by mail can hardly be classified
as narrowly drawn, especially given that such a ballot would not be secret.
Indeed, even those actively causing a disruption at the polls and convicted sex
offenders are granted a greater right to vote in person than Ms. Bernstein.
N.C. Gen. Stat. §§ 14-208.18(e), 163-48. Any close review shows that the severe
circumventing of Ms. Bernstein’s right to vote and placement by the BOE of
25

restrictions on her right to vote unknown to any other Wake County voter is
without any justification and should be enjoined.
C. DEFENDANTS HAVE DENIED MS. BERNSTEIN DUE

PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH
AMENDMENT.
1. Ms. Bernstein Has Been Denied A Cognizable Liberty Interest

Under The Fourteenth Amendment.
Besides denying Ms. Bernstein her First Amendment rights and her
right to vote, Defendants have likewise abridged her liberty interest in being
present in places belonging to the BOE that are open to the general public.
See, e.g., Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011)
(“Plaintiffs have a constitutionally protected liberty interest to be in parks or
on other city lands of their choosing that are open to the public generally.”)
(citing City of Chicago v. Morales, 527 U.S. 41 (1999) (plurality opinion)
(citations omitted)); see also Vincent v. City of Sulphur, 805 F.3d 543, 548 (5th
Cir. 2015) (“Supreme Court decisions amply support the proposition that there
is a general right to go to or remain on public property for lawful purposes[.]”);
Kennedy v. City of Cincinnati, 595 F.3d 327, 336 (6th Cir. 2010) (“[I]t is clear
that [plaintiff] had a liberty interest to remain in a public place of his choice
and that defendants interfered with this interest.”); see also Seum v. Osborne,
348 F. Supp. 3d 616, 634 (E.D. Ky. 2018) (recognizing “fundamental right to
26

petition, access, and free speech” as “protected liberty interest” that are subject
to due process protections).
Once it is determined that the government has deprived a plaintiff of a
cognizable liberty interest, “‘courts must consult the entire panoply of
predeprivation and postdeprivation process provided by the state’ in order to
determine the sufficiency of due process.” Burch v. N.C. Dep’t of Pub. Safety,
158 F. Supp. 3d 449, 458 (E.D.N.C. 2016) (quoting Fields v. Durham, 909 F.2d
94, 97 (4th Cir. 1990) (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
2. Defendants Denied Ms. Bernstein Due Process Prior To And

After Depriving Her Of Her Rights.
In this case, Defendants “trespassed” Ms. Bernstein, as contemplated by
N.C. Gen. Stat. § 14-159.13(a)(1), thereby effecting the ban against her. A
person need not have committed any crime to be trespassed under this statute.
Nor does any state statute provide a process for challenging the lawfulness of
having been trespassed under this statute. Cf. Chiaromonte, 2008 N.C. App.
LEXIS 707, at *23-24 (N.C. Ct. App. Apr. 15, 2008).
It is beyond dispute that Ms. Bernstein had committed no crime prior to
being trespassed. She did not disobey any “No Trespassing” signs, and she did
not refuse (or even receive) a request to not enter or to leave the property
(assuming that she had even come onto BOE property on May 14 at all, which
is doubtful).
27

Defendants’ violations of due process in this case are legion:
• Defendant Sims directed law enforcement to issue the trespass to Ms.
Bernstein without any objective criteria that had ever been publicly
articulated by Defendants. See F.C.C. v. Fox Television Stations, Inc.,
567 U.S. 239, 253 (2012) (“A fundamental principle in our legal system
is that laws which regulate persons or entities must give fair notice of
conduct that is forbidden or required.”) (citing Connally v. Gen. Constr.
Co., 269 U.S. 385, 391 (1926)); Brooks v. Auburn Univ., 412 F.2d 1171
1172-73 (5th Cir. 1969) (prohibition against speech by antiwar activist
held invalid based on lack of criteria for determining speaker eligibility).
• Ms. Bernstein did not receive any warning, either verbally or in the form
of signage, prior to being trespassed. See, e.g., County of Suffolk v. First
Am. Real Estate Solutions, 261 F.3d 179, 195 (2d Cir. 2001) (“Due process
requires that before a criminal sanction or significant civil or
administrative penalty attaches, an individual must have fair warning
of the conduct prohibited by the statute or the regulation that makes
such a sanction possible.”).
• No impartial decision maker was involved in the decision to trespass Ms.
Bernstein. See Bowens v. N.C. Dep’t of Human Resources, 710 F.2d 1015,
1020 (4th Cir. 1983) (“[A]n impartial decisionmaker is an essential
element of due process.”).
28

• Ms. Bernstein has never been afforded a genuine opportunity to appeal
or otherwise be heard in a challenge to the trespassing by Defendant
Sims. See, e.g., Catron, 658 F.3d at 1268 (“The ease with which trespass
warnings may be issued is particularly problematic here because the
trespass ordinance provides no procedural means for a warning-recipient
to challenge the warning . . . Even if it is impractical for the City to
provide a pre-warning hearing to assure that there are reasonable
grounds to support the trespass warning, the City must provide some
post-deprivation procedure to satisfy the requirements of the Due
Process Clause.”) (internal quotation marks and citations omitted);
Seum, 348 F. Supp. 3d at 634 (“The unequivocal and permanent ban
imposed on [the plaintiff] was sufficiently individualized to trigger due
process protections . . . [and to] demand pre-deprivation process.”) (citing
Kaminski v. Coulter, 865 F.3d 339, 347-48 (6th Cir. 2017)).
• Even though the full Board was made aware of the trespassing of Ms.
Bernstein when her husband appeared before it to challenge Defendant
Sims’ actions, the Board responded by depriving him of his full time to
speak and then asked law enforcement to escort him away. It took no
action to reconsider, revise, or reverse the actions of Defendant Sims
either then or when he returned two more times. See Garcia v. Fed. Nat’l
Mortg. Ass’n, 782 F.3d 736, 741 (6th Cir. 2015) (“Procedural due process,
29

at its core, requires notice and an opportunity to be heard at a
meaningful time and in a meaningful manner.”) (internal quotations and
citations omitted). And, even if the Board had allowed her husband his
full time to speak, that would only have given him a mere two minutes,
which is hardly a meaningful amount of time to present why the ban
should be lifted.
It is easy to conclude that Defendants have not afforded Ms. Bernstein
due process because they have afforded her no process at all. Defendant Sims
initially denied Ms. Bernstein due process, and the Defendant Board
compounded and ratified this denial of due process through its own actions at
the meetings where Mr. Bernstein tried to seek redress.6 Recourse to the
courts is therefore the only means of relief for Ms. Bernstein.
II. MS. BERNSTEIN WILL SUFFER IRREPARABLE HARM

WITHOUT ISSUANCE OF AN INJUNCTION.
The “loss of First Amendment freedoms for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
6
Notably, too, Defendants have not complied with guidance from the UNC School of
Government. Jeff Welty, Trespass and Public Buildings, North Carolina Criminal
Law, Oct. 7, 2019, available at https://nccriminallaw.sog.unc.edu/trespass-and-
public-buildings/ (last visited Sept. 20, 2022) (copy attached). The School of
Government cautions public officials that, at a minimum, banning a specific
individual from a government building requires (1) a “good reason;” (2) “opportunity
for the person to be heard before being banned;” (3) that the ban not be “based on
expressive conduct;” and that (4) the banned individual be given “a means to conduct
essential business.” Id. All of these elements are absent here.
30

373 (1976); see Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th
Cir. 2004) (“[A] realistic threat of arrest is enough to chill First Amendment
rights.”). Along with her First Amendment rights, Ms. Bernstein is being
denied the right to vote on equal terms with her fellow voters. “Courts
routinely deem restrictions on fundamental voting rights irreparable injury.”
League of Women Voters, 769 F.3d at 247 (citations omitted).
As such, the threat of irreparable harm to Ms. Bernstein is pronounced
and merits relief from this Court.
III. THE BALANCE OF HARDSHIPS WEIGHS IN MS. BERNSTEIN’S

FAVOR.
As the Fourth Circuit has recognized, “a state is in no way harmed by
issuance of a preliminary injunction which prevents the state from enforcing
restrictions likely found to be unconstitutional. If anything, the system is
improved by such an injunction.” Giovani Carandola, Ltd. v. Bason, 303 F.3d
507, 521 (4th Cir. 2002).
Furthermore, the ban here is not a general enactment of the BOE or any
other law-making body; instead, it is a decision that was, at least at first, made
on an ad hoc basis by a single government official. Cf. New Motor Vehicle Bd.
of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in
chambers) (“[A]ny time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable injury.”)
31

(emphasis added). Thus, no state or local body would be denied the benefit of
enforcing a duly enacted law. By contrast, issuance of an injunction would
protect Ms. Bernstein’s rights, including her First Amendment rights and right
to vote.
IV. ISSUANCE OF AN INJUNCTION IS IN THE PUBLIC INTEREST.
Enjoining enforcement of Defendants’ ban on Ms. Bernstein is in the
public interest because it is always in the public interest to uphold
constitutional rights. Giovani Carandola, Ltd., 303 F.3d at 521; see Newsom
v. Albemarle County Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“Surely,
upholding constitutional rights serves the public interest.”) (citing Homans v.
Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001)); Thompson v. Hayes, 748
F. Supp. 2d 824, 833 (E.D. Tenn. 2010) (“[T]here is a public interest in
protecting First Amendment rights.”).
The public interest is especially served by granting relief to Ms.
Bernstein because it will enable her to fully resume her election integrity work,
including her work with Transparent Elections NC. She has a history of
advocating effectively in the public interest in Wake County and elsewhere.
(Lynn Bernstein Decl. ¶¶ 6-7.) The current ban imposed by Defendants only
serves to frustrate such work and the benefits it brings to the public generally.
32

V. BOND SHOULD NOT BE REQUIRED FOR ISSUANCE OF AN
INJUNCTION.
Though Rule 65(c) generally requires a plaintiff to post security for
issuance of a preliminary injunction, a District Court may waive the bond
requirement in its discretion. See Pashby, 709 F.3d at 332. Waiver of bond
may be particularly appropriate where “the restraint will do the defendant no
material damage[.]” Fed. Prescription Serv. v. Am. Pharm. Ass’n, 636 F.2d 755,
759 (D.C. Cir. 1980) (citations omitted).
Defendants here are at no risk of financial or other material injury from
the granting of an injunction to Ms. Bernstein, who is a citizen seeking
protection of her rights. The rights she seeks to vindicate are intangible,
constitutional rights, including the right to vote, which the law is especially
solicitous to protect from being made contingent on a voter’s ability to pay, see
U.S. Const., amend. XXIV, § 1 (“The right of citizens of the United States to
vote in any primary or other election for President or Vice President, for
electors for President or Vice President, or for Senator or Representative in
Congress, shall not be denied or abridged by the United States or any State by
reason of failure to pay poll tax or other tax.”). Therefore, she respectfully asks
that the Court either waive the bond requirement or make it nominal, given
that she is an ordinary citizen.
33

CONCLUSION AND REQUESTED REMEDY
Accordingly, Ms. Bernstein respectfully requests entry of an order
enjoining the ban against her and granting her the right to enter and be
present on property owned by, or under the control of, the Wake County Board
of Elections for any lawful purpose, including speaking, attending meetings
and events, and casting a vote as a registered voter in Wake County; that the
requirement for security be waived; and that she be granted such other and
further relief as the Court deems appropriate.
Ms. Bernstein further respectfully requests that this motion be set by
the Court for an evidentiary hearing and oral argument.
Respectfully submitted, this the 20th day of September, 2022.
LAW OFFICE OF B. TYLER BROOKS, PLLC
BY: /s/B. Tyler Brooks

B. Tyler Brooks
N.C. Bar No. 37604
btb@btylerbrookslawyer.com
P.O. Box 10767
Greensboro, North Carolina 27404
Telephone: (336) 707-8855
Fax: (336) 900-6535
HUBBARD LAW FIRM
BY: /s/Meredith Woods Hubbard

Meredith Woods Hubbard
N.C. Bar No. 38599
meredith@hubbardlawnc.com
150 Fayetteville Street
Suite 300
34

Raleigh, North Carolina 27601
Telephone: (919) 961-4262
Fax: (919) 930-8544
Counsel for Plaintiff Lynn Bernstein
35

CERTIFICATE OF WORD COUNT
The undersigned counsel certifies that the foregoing brief complies with
Local Civil Rule 7.2(f) in that, according to the word count feature of his word
processing software, it contains less than 8,400 words, excluding those parts
that are allowed to be excluded by the Rule. According to the word count
feature, this brief contains 8,344 words.
/s/B. Tyler Brooks

B. Tyler Brooks
36

CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing document was filed
electronically with the Court’s CM/ECF system on September 20, 2022, which
will serve a copy on counsel for the defendants, as indicated below.
/s/B. Tyler Brooks

B. Tyler Brooks
SERVED:
Scott Wood Warren, Esq.

Allison Pope Cooper, Esq.
Roger A. Askew, Esq.
WAKE COUNTY ATTORNEY’S OFFICE
Post Office Box 550
Raleigh, North Carolina 27602
Counsel for Defendants
37

WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. )
)
GARY SIMS, individually and in )
ELECTIONS, )
)
Defendants. )
______________________________________ )
EXHIBIT INDEX
Exhibit A – Declaration of Lynn Bernstein
Exhibit 1 – Annotated Google Map
Exhibit 2 – Photo of Area Outside BOE (“Board of Elections Event” Sign)
Exhibit 3 – Photo of Area Outside BOE (“Election Supply Pickup” Sign)
Exhibit 4 – Photo of Area Outside BOE (man standing)
Exhibit 5 – Photo of Area Outside BOE (campaign signs/north entrance)
Exhibit 6 – Photo of Area Outside BOE (“Staff Entrance” Sign)
Exhibit 7 – Video (Bernstein and Brakey walking)
Exhibit 8 – Video (Bernstein and Brakey continue walking)
Case 5:22-cv-00277-BO-KS Document 14-1 Filed 09/20/22 Page 1 of 2

Exhibit 9 – Video (Bernstein and Brakey near gate)
Exhibit 10 – Video (Defendant Sims and Officer Carter)
Exhibit 11 – Audio Recording (Dialogue with Law Enforcement)
Exhibit 12 – Transcript of Ex. 11 Audio Recording
Exhibit 13 – Audio Recording (First 911 Call)
Exhibit 15 – Audio Recording (Second 911 Call)
Exhibit B – Declaration of Nicholas Bernstein, Ph.D.
Exhibit 17 – Video (Nicholas Bernstein Comments to BOE)
Exhibit 18 – Video (Nicholas Bernstein Escorted from BOE)
Exhibit 19 – Audio (Nicholas Bernstein Comments to BOE)
Exhibit 20 – Transcript of Exs. 17 & 18
Exhibit 21 – Letter to BOE by Bernsteins’ Daughter
Exhibit 22 – Transcript of Nicholas Bernstein Comments to BOE
(May 17, 2022)
Exhibit 23 – Transcript of Nicholas Bernstein Comments to BOE
(May 26, 2022)

Exhibit A
WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. ) DECLARATION OF
) LYNN BERNSTEIN
ELECTIONS, )
)
Defendants. )
______________________________________ )
Pursuant to 28 U.S.C. § 1746, Lynn Bernstein hereby declares under
penalty of perjury as follows:
1. My name is Lynn Bernstein. I am over the age of 18 and am
suffering from no impairment or disability that prevents me from making this
declaration. I am competent to testify to the facts stated herein, all of which
are based on personal knowledge. All of the below statements are true and
accurate to the best of my knowledge, information, and belief.
2. I am a citizen of Wake County, North Carolina, where I am duly
registered to vote. I live in Cary with my husband and minor children.
3. I am founder of Transparent Elections NC and a longtime advocate
for elections that are verifiable, reliable, and trustworthy. I am also a trained

International Election Observer, a member of the Election Verification
Network, a member of the National Voting Rights Task Force, a member of the
Carter Center Advisory Council for Fair, Safe and Secure Elections in North
Carolina, a member of the State Audit Working Group (SAWG), a Board
Member of AUDIT Elections USA, and an active member of the Wake County
Democratic Party, serving as a Board Member for the Democratic Women of
Wake County (DWWC) and as a member of the Executive Committee for the
NC Democratic Party Disability Issues Caucus.
4. I hold a B.S. in Aerospace Engineering from the University of
Colorado Boulder, and my work experience includes integration and testing of
satellite systems.
5. I am not paid for my election advocacy work; instead, it is all civic-
minded volunteer work that I do on a full-time basis.
6. As part of my advocacy, I use my technical background to advocate
for better election policies and procedures. In one of many examples, I have
aided some jurisdictions, like Guilford County, in saving millions of dollars and
strengthening the integrity of their elections through the adoption of hand-
marked paper ballots for most voters, rather than the mass purchase of ballot
marking machines for all voters.
7. My advocacy efforts have resulted in positive reforms to election
procedures at the state and county level. In addition, I conduct poll-watcher

training classes; educate interested members of the public in proper, lawful
observation; and analyze and comment on current election laws and proposed
legislation. Some of my advocacy efforts can be viewed on
www.TransparentNC.org.
8. In terms of a criminal record, I have had two minor traffic offenses,
one 23 years ago and one 30 years ago, and a parking ticket 10 years ago, but
no other offenses whatsoever. I am committed to following the law.
9. Even though the Wake County Board of Elections (“BOE” or
“Board”) recently constructed a large observation area for the public to view
the counting of votes, they do not allow the vote count to be observed by the
public on election night, and, in fact, do not allow any observers on the BOE
property (the Operations Center) after the 2:00 pm meeting on election day,
although many other North Carolina counties allow such observation on
election day and election night. I believe this practice is contrary to state law,
see N.C. Gen. Stat. § 163-182.2(a)(3) (“Any member of the public wishing to
witness the vote count at any level shall be allowed to do so.”), and, moreover,
constitutes unsound policy; therefore, I have advocated for the BOE to change
its practices and start allowing what legislators intended, for the public to be
able to witness the vote count at the county level.
10. To raise public awareness of the BOE’s practice of excluding the
public from observation on election night, I decided to stage a peaceful, lawful

protest with a small group of individuals on the public right-of-way near the
BOE’s Operations Center located at 1200 N. New Hope Road, Raleigh, North
Carolina 27610. I planned to hold this peaceful protest on the night of the 2022
primary election (May 17, 2022) to draw attention to the fact that observers
were not allowed inside the Operations Center on that night.
11. I drove to the area of the Operations Center on the afternoon of
May 14, 2022, to find a location where myself and others would have a safe and
legal place to protest on election night. I was accompanied by John Brakey.
Mr. Brakey is a nationally known expert in election integrity and the Director
and Co-founder of AUDIT Elections USA, a 501(c)(3) founded in 2004 to
advocate and litigate for public oversight of federal, state, and local elections.
A map of the area around the Operations Center is attached to this declaration
as Exhibit 1; I prepared this map by taking a Google satellite image of the
Operations Center and nearby properties, to which I added true and accurate
labels and markings as well as a legend.
12. As we drove past the BOE facility, along Bullock Farm Road, I saw
a yellow sign that read: “Board of Elections Event.” This did not appear to be
a leftover sign from early voting at the site. Instead, it was indicating an active
Wake BOE event, which would be open to the public, based on my
understanding of North Carolina law. According to guidance I previously
received from an attorney for the North Carolina State Board of Elections, both

BOE “meetings” and “events” are open to the public. In my experience, the
Board does not publicize dates and times for its “events;” the Board only
publicizes dates and times for “meetings.” There have historically been many
BOE “events” at the BOE Operations Center (also commonly called the
“Warehouse”) that were open to the public, but that were never publicly
announced or advertised. Throughout my years working in elections, much of
which has focused on the Wake County Board of Elections, I have never seen
or heard of the Wake BOE hosting a “Board of Elections Event” that was not
open to the public, nor have I ever seen the BOE post information about any
“Board of Elections Events” online. To attend a Wake BOE event, you first
have to know that an event will be happening and then request the date and
time of the event.
13. After driving by the Operations Center, I turned my car around
and drove back down N. New Hope Road. The Operations Center has two
driveways coming off of N. New Hope Road, leading to two different parking
lots on either side of the BOE building. The front lot where I would normally
park had, on that day, temporary signage stating “No Public Parking” and
signs stating “Elections Supply Pickup” and “Supply Pickup Site” so it
appeared that the Precinct Chief Judges (poll workers) were picking up voting
equipment for the upcoming election on May 17, 2022. Prior to arriving, I was
not aware that this process would be taking place that day. The north parking

lot had a fair amount of automobile activity coming and going and temporary
signage stating, “Board of Elections Event” and other signs nearby stating,
“Greer / Headway Staff Entrance.” Thus, I could not park in the lot where I
would normally park, and I did not want to interfere with, or be accused of
interfering with, what looked like a separate Board of Elections event in
progress on the north side of the building. Therefore, Mr. Brakey and I decided
not to park at the Operations Center, even though I have parked there many
times previously while attending meetings and events at that facility.
14. Instead, I parked offsite in a parking lot immediately adjacent, but
not belonging to the BOE, after I initially parked briefly across the street from
the BOE’s property, moving after less than 3 minutes when I realized I would
not be able to leave my car parked there. Neither place that we parked
belonged to the BOE.
15. While parked in the adjacent lot at the ABC Supply Co., we
observed Defendant Gary Sims walk out to speak with a sheriff’s deputy
standing outside of the Operations Center. When Mr. Brakey exited my
vehicle, he was only about 40 feet away from Mr. Sims, on the other side of a
chain link fence. Mr. Brakey waved to Mr. Sims and said, “Hello” (or other
words to that effect). Mr. Sims did not respond or acknowledge Mr. Brakey’s
presence.

16. After parking, Mr. Brakey and I walked along the public right of
way beside N. New Hope Road, continuing to look for a good location for the
upcoming protest. We did not see any signs on the BOE property indicating
that the event was “closed” or stating, “No Trespassing.” During this time, Mr.
Brakey was taking a photo of the area so we could plan where the protest could
be lawfully and safely held. Weeks later, while reviewing our car camera
footage, my husband could make out a sign along the north lot fence on Bullock
Farm Rd that looks like it says, “Private Property”, even though this is the lot
that the public frequently parks in for meetings and voting. Mr. Brakey and I
did not notice this sign as we drove past it, and never walked past it or took a
photo of it since we had already ruled out protesting along the north lot fence,
along Bullock Farm Rd.
17. Attached to this declaration are several photographs taken while
we drove past the BOE before parking, including a true, correct, and accurate
depiction of the Board of Elections “event” sign posted at the Operations
Center. See Exhibits 2 – 6. These exhibits are true and accurate depictions
of the area.
18. At approximately 4:51 pm, Mr. Brakey and I reached the driveway
of the north lot and after a few minutes, we began walking up the driveway
toward the ongoing BOE “event” while continuing to look for a good place to
protest. Mr. Brakey wanted to get a better look at the signs along the inside

of the fence where the BOE event was taking place, so he took four or five steps
inside the open gate. Subsequently obtained surveillance video from the
County shows this gate had been open all day until the moment Mr. Brakey
and I approached it. As soon as Mr. Brakey stepped inside the gate, however,
it began to close. Mr. Brakey quickly exited to the outside of the gate, which
likely tripped the gate’s safety sensor and the gate retracted. While we were
just outside the open gate, it began closing partway and then opened two more
times. Subsequently obtained video shows that neither of us crossed the plane
of the gate after Mr. Brakey exited. Mr. Brakey and I moved away from the
gate and then continued walking past the BOE Operations Center towards the
sidewalk adjacent to the north side of the BOE and next to a Walgreens, in
search of a good protest spot. We then walked back to my vehicle along the
public right of way along N. New Hope Road.
19. In total, we spent a little more than 60 seconds outside of the open
gate, all of which is documented on County surveillance video. Since I never
crossed the threshold of the open gate, it is not even clear to me that I was ever
on BOE property at any point during these events.
20. To provide evidence of what happened on that day, I and others
requested surveillance video for all external BOE cameras, which would show
Mr. Sims and Officer Carter in the front parking lot, and Mr. Brakey and
myself while we were near the BOE. Wake County did not provide any

requested video surveillance footage in response to my request, even though
they did provide some of the same surveillance videos I had requested, to at
least two other requesters. Each of the following video clips are from
surveillance footage provided by Wake County to the two requesters, and are
a true, correct, and accurate depiction of the events involving myself and Mr.
Brakey in the vicinity of the BOE gate. Video showing some relevant parts of
these events are submitted with this declaration, and are identified as follows:
● Exhibit 7 – (starts at 4:42:09 pm) shows Mr. Brakey and me
walking past the entrance to the front parking lot of the BOE
from ABC Supply Co along N. New Hope Road towards Bullock
Farms Road. Officer Carter is two minutes into her first 911
call when Mr. Brakey and I walk past the front lot driveway,
while she is standing behind a tree, about 30 feet away from us.
continuing to walk north along N. New Hope Road. Mr. Brakey
stops to take a photo of the BOE sign in front of the building.
continuing to walk north along N. New Hope Road, stopping
when we reach the north parking lot driveway. Mr. Brakey
walks past the open gate and then out again when the gate
begins to close. The gate opens and closes part way 2 more

times. Then, we walk toward the sidewalk area on the property
adjacent to Walgreens and then walk back along the road
towards the ABC Supply Co., where I had parked my vehicle.
● Exhibit 10 – (starts at 4:42:54 pm) shows Officer Carter in
the front parking lot watching Mr. Brakey and me as we walk
along N. New Hope Road towards the north parking lot
driveway. Mr. Sims exits the BOE building and joins Officer
Carter and this clip shows what they were doing while Mr.
Brakey and I were at the north lot driveway and near the gate.
Mr. Sims has something in his hand that is dangling, and they
both appear to be watching us as we are near the open gate. Mr.
Sims also appears to have a cell phone in his hand at times and,
briefly at the end of the clip, he has a pair of sunglasses in his
hand.
21. Based on the video evidence obtained since that day, I now believe
Mr. Sims was himself activating the electronic gate with a remote device at
this time. The surveillance video of the previous 7 hours of activity at the gate
shows that it had been open all day until Mr. Brakey stepped inside it. The
video clip provided to the court shows that Mr. Sims was in the parking lot at
the time the gate closed and was holding something in his hand (such as,
10

perhaps, a remote device for controlling the gate attached to a keychain), in
addition to his cell phone and sunglasses.
22. Surveillance video for all exterior cameras, that could clearly show
additional details of what Mr. Sims was doing at that time, was withheld and
not provided in response to records requests.
23. Additionally, I and others made public records requests to the
BOE and to Wake County to obtain and preserve document (non video)
evidence of the events on May 14, 2022, but many pertinent records have not
been provided by the County or the requests were deemed closed as completed,
even though not all records were provided.
24. After we walked back to the ABC Supply Co parking lot, Mr.
Brakey and I were standing next to my vehicle talking, when an officer from
the Raleigh Police Department arrived and began speaking with a sheriff’s
deputy, who also works for the BOE during public board meetings and events.
The sheriff’s deputy incorrectly stated that Mr. Brakey and I had “attempted
to get in by tampering with the gate,” which she stated was “closed.” We
disputed these allegations, and the officers, after one of them made a phone
call to Wake County Security, then conceded the gate was open when Mr.
Brakey and I had approached the BOE event.
25. The officers stated specifically that Mr. Sims had ordered that we
be formally “trespassed.” The officers completed paperwork to document the
11

“trespassing.” The police officer specifically stated that neither Mr. Brakey nor
myself had committed any crime and said we were not being charged with
committing a crime. The officer said, “Well, I’m not saying you, you did
anything wrong. But like I’m saying, you know, if . . . if the person in charge
of that property, they don’t want you there for whatever reason, because they
don’t like what, you know, what party you’re affiliated with, or who you are or
what you represent[.]” And later in the conversation, the same police officer
said, “[You] [m]ight, might want to go that route and file some sort of complaint
against whoever this guy is. [It’s] like you’re being blackballed, you know[.]”
An audio recording of the exchange Mr. Brakey and I had with the law
enforcement officers is submitted herewith as Exhibit 11; the audio recording
was made by me and is a true, correct, and accurate representation of the
conversation that took place; additionally, Exhibit 12 hereto is a true, correct,
and accurate transcript prepared by me of the audio recording.
26. Based on information obtained through public records requests
made after the events of May 14, 2022, I learned that Officer Carter initiated
the first call to 911 regarding Mr. Brakey and myself at approximately 4:41
pm, while we were still on property belong to ABC Supply Company (where I
parked), just prior to walking on the right of way along N. New Hope Road and
well before we were even near the gate that we were later falsely accused of
tampering with. Exhibit 13 attached hereto is a true and accurate audio
12

recording of the aforementioned 911 call provided in response to public records
requests, while Exhibit 14 is a transcript of the call prepared by me.
27. Also based on information obtained through public records
requests made after the events of May 14, 2022, I learned that Officer Carter
again called 911 on Mr. Brakey and myself at approximately 5:05 pm, after we
had arrived back at my car in the ABC Supply Company parking lot. Officer
Carter stated to the 911 operator that, “they’ve started to tamper with the gate,
that is closed… So they’re attempting to get in by tampering with the gate.”
Exhibit 15 attached hereto is a true and accurate audio recording of the
aforementioned 911 call provided in response to public records requests, while
Exhibit 16 is a transcript of the call prepared by me.
28. At approximately 5:56 pm, immediately following the end of our
conversation with the two officers, Mr. Brakey and I departed the ABC Supply
Co. parking lot and drove away from the Operations Center.
29. On the morning of May 16, Mr. Brakey and I went to the Raleigh
Police station to inquire about the trespass and see what recourse was
available. Police confirmed that our names were listed in law enforcement
records for having been trespassed and that the only way to get the ban
removed was to have the “owner or manager” of the establishment remove it.
30. My husband, Nick Bernstein, has attempted to address the Board
regarding my being banned on several occasions to no avail. My 14-year-old
13

daughter even submitted to the Board a written plea for the ban to be lifted.
The Board has never mentioned the ban publicly and has taken no action to
revoke, suspend, or otherwise modify the permanent and indefinite ban on me,
despite multiple attempts by my husband, my daughter, myself, and others, to
have this addressed and corrected.
31. The ban continues to be in effect and is a permanent ban. When I
asked the Raleigh Police officer, who issued the trespass notice, at what point
I could again enter BOE property, his response was, “Never.”
32. Though not entirely clear from the written trespass paperwork I
was shown, it is my fear that the “trespassing” applies to any Wake County
BOE property, even if that property is accessed only for purposes of voting and
even if that property is only temporarily under the Board’s control as a polling
place. In light of Defendants’ extremely hostile prior conduct toward me, I fear
that the ban will be interpreted by them in a manner that will inflict as much
harassment and detriment to my rights as possible.
33. As a result of the ban, not only am I deprived of the opportunity to
observe and speak at BOE meetings and many other civic and educational
events hosted by the Board, but I also cannot file in person to run for office,
take poll worker training, work as a poll worker, be a political election
observer, turn in voter registration forms following DWWC events, or even
serve as a poll greeter. And because the BOE does not provide any means for
14

members of the public to view its meetings and events virtually, I cannot watch
Board meetings or events as they are occurring, let alone participate and
comment remotely.
34. I cannot even vote in-person early or in-person on election day
without fear of adverse action from the BOE. I voted in person in the primary
election held on May 17, 2022, days after I was trespassed, because I did not
realize at that time that the ban would likely apply even to voting at my home
precinct polling place. After physically coming to my polling place to vote on
election day and reflecting on the events afterwards, however, I became fearful
that I would be charged with criminal trespass because of the BOE ban—a
concern I continue to have to this day. Therefore, I voted in the 2022 second
primary held on July 26, 2022, by means of an absentee ballot, which my
husband had to deliver to the BOE on my behalf.
35. Importantly, in-person voting on election day is the only method of
voting in North Carolina that affords the voter a secret ballot. Early-voted
ballots and absentee-by-mail ballots have unique numbers that identify each
voter in case a ballot has to be retrieved after the election, thereby meaning
they are not secret ballots. I therefore strongly prefer voting in person rather
than by absentee ballot.
36. A preliminary injunction is needed to prohibit enforcement of
Defendants’ ban because it is substantially interfering with my ability to
15

engage in effective advocacy on behalf of myself, my organization, and the
public and to have our views heard and considered by the Board. Additionally,
the ban causes me to fear voting in person, forcing me to now vote only by
absentee ballot.
37. The ban imposed on me is without valid basis, and I believe it is
retaliatory and motivated by dislike of my advocacy efforts, which have
previously caused the Wake County Board to have to change some of its
election procedures to be more transparent, more secure, and lawful. My
advocacy is always civil and peaceful and conducted through lawful, proper
means. I am interested in correct, lawful election procedures; my work has
nothing to do with which candidate or political party wins or loses. I have
never disrupted, or attempted to disrupt, a meeting of the Wake BOE or any
other public body.
38. Nevertheless, the Defendants do not like the views I express,
including my requests in multiple BOE meetings for greater transparency.
Defendants’ animus is evident in persistent and ongoing hostile actions toward
me that have ranged from blocking my access to public records to Mr. Sims, on
one occasion, aggressively approaching me and then physically looming over
me so that he was within an inch of my face, his nose almost touching mine,
and snarled, “GET. OUT.” Mr. Sims’ aggressive behavior towards me occurred
after the 2:00 pm Election Day Board meeting, and on the same day I had
16

emailed all BOE members asking for more transparency, which resulted in,
during the meeting, one board member making a motion to put a discussion
about transparency on the agenda for the next board meeting. Following Mr.
Sims’ physically aggressive behavior towards me, while I was getting ready to
go to the next Board meeting (where they finally agreed to talk about
transparency), for fear that Mr. Sims would continue or escalate his aggressive
behavior towards me, I did not attend that meeting or the following board
meeting for the same reason. Therefore, my husband and I decided it would be
best if he accompanied me to the third meeting so I would be safe.
39. Therefore, I respectfully ask this Court to assist me in returning
to my normal activities as quickly as possible, including being able to
effectively advocate on issues relating to voting in Wake County and cast an
in-person ballot.
17

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury
that the foregoing is true and correct.
Executed on September 19, 2022.
_____________________
Lynn Bernstein
18

Ex. 1

Ex. 2

Ex. 3

Ex. 4

Ex. 5

Ex. 6

WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. )
)
ELECTIONS, )
)
Defendants. )
______________________________________ )
Exhibit Nos. 7 - 10
(Video of Actions Outside of
Wake County Board of Elections, 5/14/2022)
Each of these exhibits is an audio or video recording for which electronic filing
on CM/ECF is not possible. Pursuant to Section V.A of the Electronic Case
Filing Administrative Policies and Procedures Manual, leave to file these
exhibits manually will be sought, and a copy of a USB drive with said exhibits
will be submitted to the Clerk of Court in conjunction with a motion for manual
filing.

WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. )
)
ELECTIONS, )
)
Defendants. )
______________________________________ )
Exhibit No. 11
(Recording of Exchange with
Raleigh Police, 5/14/2022)
This exhibit is an audio or video recording for which electronic filing on
CM/ECF is not possible. Pursuant to Section V.A of the Electronic Case Filing
Administrative Policies and Procedures Manual, leave to file this exhibit
manually will be sought, and a copy of a USB drive with said exhibit will be
submitted to the Clerk of Court in conjunction with a motion for manual filing.

May 14, 2022
Discussion at ABC Supply Company parking lot
Ms. Bernstein, Mr. Brakey, Officer Hoock and Officer Carter Ex. 12
Lynn:
Hello, sir.
John:
Can I give you my card?
Officer Hoock:
Sure.
John:
That way we can---[inaudible]
Lynn:
---We actually both run nonprofits.
Officer Hoock:
[inaudible]
Lynn:
Okay. No problem.
Officer Hoock:
I got her [Officer Carter’s] side. I'm going to let you guys give me
your---side and see what all is going on here.
Lynn:
---That'd be great.
John:
[inaudible]...Here’s my card, sir.
Officer Hoock:
Oh, appreciate it.
Unknown Speaker:
And I don't have any of my cards, but I, I am the founder of---
John:
[inaudible]...identification.
Officer Hoock:
I guess, for my own knowledge...who are you guys?
Lynn:
1/66
May 14, 2022
Ms. Bernstein, Mr. Brakey, Officer Hoock and Officer Carter
Okay, so why don't I start? I, I live in Wake County.
Officer Hoock:
Okay.
Lynn:
My name is Lynn Bernstein.
Officer Hoock:
Gotcha.
Lynn:
And I'm the founder of Transparent Elections, NC. I've been going to
these board meetings every week for 6 years...
Officer Hoock:
What do they have...like, some big election going on?
John:
Yeah, Tuesday ---big election.
Lynn:
There's an election on Tuesday.
John:
---State primary.
Officer Hoock:
Oh, okay.
Lynn:
There's an election on Tuesday, and you see the The General
statutes.... and I've gone to other counties on election night. I've
been a been a political observer before.
Officer Hoock:
Yeah.
Lynn:
You know, so I know the law. I know, I know what I'm allowed to do.
Officer Hoock:
I kind of got that fact, so...
2/66
May 14, 2022
Lynn:
So so the thing is, is that---
John:
We're good people too.
Officer Hoock:
Yeah, I'm not saying you're not.
Lynn:
No, no, no.
John:
You know, we're not---
Lynn:
Hold on, wait.
Officer Hoock:
You know guys, I don't care if you are recording---
Lynn:
No, I know. No, no.
Officer Hoock:
I'll just...I'll just... basically, I don't know if you've talked to
her or not---
Lynn:
I've seen her at the meetings.
Officer Hoock:
She's basically telling me her issue here is that... something about a
fence and you guys were tampering with a fence? I don't I don't know
where----
John:
No, we weren't.
Officer Hoock:
---she didn't show me this fence----
Lynn:
What is she saying? Talking about tampering?---
3/66
May 14, 2022
Officer Hoock:
I'm just telling you what she's telling me.
Lynn:
Tampering with a fence?
John:
I had my hand on it [the chain-linked fence next to where we parked.]
Officer Hoock:
And her thing is. Her thing is...she doesn't want you guys on the
property---
Lynn:
Correct.
Officer Hoock:
Which, hey, if she doesn't want you guys on the property, then
that's...yeah, I guess she's in charge over there---that's her right.
Lynn:
So can I...can I...So, let me just...let me just let you know---
Officer Hoock:
But I told her, right now, you guys aren't on the property.
Lynn:
Yeah, yeah. So, and I'm glad you're here, because we do need some
advisement of where we can---
Officer Hoock:
I'll do the best I can.
Lynn:
So let me just tell you that 99 precincts in North Carolina open their
board of elections on election night, because it's the law.
Officer Hoock:
Yeah.
Lynn:
They allow people in to come see all the materials being brought back
4/66
May 14, 2022
Officer Hoock:
Sure.
Lynn:
… the votes being loaded to the state. I've gone to Durham. I've gone
to Guilford. I've gone to lots of counties. Yeah, I came here on the
primary in 2020 because one of the precincts - they weren't posting
and printing the poll tape like they were supposed to. And so I came
up here thinking, Oh, well, I'm gonna walk in just like I did at other
places. And somehow, Gary knew I was coming... the director, and
essentially told me, If you don't leave, I'm gonna have you arrested.
And at the time, I actually didn't understand the law as well as I do
now. And so I left because I don't want to make their jobs harder.
Officer Hoock:
Sure.
Lynn:
However, uh, I will be here on Tuesday at two o'clock at the meeting,
and I will let them know that here's the statute and you are supposed
to let us in. And if they tell me to leave, I understand I have to
leave. But But really, what I want to know is, you know...and they're
not gonna let us in to watch this process, which, you know---
Officer Hoock:
they're saying, I mean, I'm kind of treated as if someone was creating
an issue at a Walmart, you know, like, the person in charge of a
Walmart doesn't want someone they have an issue with there, then, you
know, I gotta tell them, hey, the person in charge does not want you
here. You can't be here.
Lynn:
But when it's a public building---
John:
I want you to know, we're talking about democracy---there should be
good procedures,
Officer Hoock:
Yeah...
John:
you know, there are observations,
5/66
May 14, 2022
Officer Hoock:
see now, you're, now you're getting into a territory that---
John:
I know, but this is, you know, this is a...elections aren’t any good
unless they're transparent, trackable, and publicly verifiable. This
country is in crisis.
Officer Hoock:
Yeah [chuckles].
John:
You know, 50 million people think that Trump's election was stolen.
Officer Hoock:
Yeah.
John:
64% of people in this country think that democracy is in crisis.
Officer Hoock:
Sure.
John:
The only solution you're gonna get out of that is to really make
elections where people can believe in them. The reality is, 80 million
people----
Officer Hoock:
You just want transparency.
Lynn:
We just want, transparency. I can tell you, the other thing I can tell
you is that I've gone and I've witnessed logic and accuracy testing. I
mean, this is what I do for a living.
Officer Hoock:
Yeah.
Lynn:
I get...when I say do for a living, I mean, I do this for free,
nobody...
John:
6/66
May 14, 2022
I get paid.
Lynn:
He gets paid. I don't get paid to do this. I just do this full time---
John:
If you google me, you'll find out why.
Lynn:
---because it needs - it needs to be done. But here's the thing is
that I'll go and I'll watch a process and say they're short one
ballot. I will let the public know, "Hey, they were short one ballot.
And they found the ballot and they remedied it in this way. And so
‘Hey, everyone who couldn't come to this meeting, I was the only one
here. I'm telling you, nothing went crazy down---
Officer Hoock:
You kind of do your own investigation.
Lynn:
Well, what I do is I try to find election evidence and election
evidence, most of the time is exculpatory. And I want to be able to
announce that to people and say, ‘Hey, I went and I verified this
process. You can have confidence in this.’ But then when I come and
they say, You can't come in on election night, well, I do broadcast
that out on my social media. And I say, hey, they're not letting us
in. The law says they're supposed to let us in. And they're not
letting...letting us in. I can tell you---
Officer Hoock:
Let me just ask you this:...
Lynn:
Yeah, yeah.
Officer Hoock:
And this is just for my own knowledge, do they have like these
elections anywhere else? Or is this the only one like in Raleigh? I'll
be honest, I don't know.
Lynn:
This is Wake County. So Wake County, we've got I think about 209 or so
precincts on election day.
7/66
May 14, 2022
Officer Hoock:
---different, like election, spots?
Lynn:
Different small ones. Yeah. And this is the last day early voting. I
think we've got nine early voting sites in Wake County, and there's
actually an early voting site on the other side of the building.
Officer Hoock:
Gotcha.
Lynn:
And so we walked over there for a bit and we're looking at the
different candidate--- He's from out of town, so I'm letting him know
like, Oh, these are the candidates. This is... he flew in. He flew in
for this election because he's a national organization. I'm a state
organization. But really what I would love to know from you is, where
can we stand on election night?
Officer Hoock:
You're talking this this building?
Lynn:
Yeah. So, so...
John:
[inaudible]
Officer Hoock:
I've been doing this for nine years. I'm going to give you my best
answer, so---
Lynn:
Okay. Yeah.
Officer Hoock:
I kind of go back to that, you know, Walmart scenario. So if there's
someone that they don't want on the property for whatever reason.
Lynn:
Right.
Officer Hoock:
To my knowledge, they have the right to...the person in charge of the
8/66
May 14, 2022
property has the right to tell that person, "You can't come on this
property."
Lynn:
Okay. Okay.
Officer Hoock:
So, with that being said, you know, if they don't want you here, then
you can't be here. Now, if you want to, you know, record on this
property [ABC Supply Company], because now you're not on that property
anymore. I can't stop you from that.
John:
Right.
Officer Hoock:
The people that run this property are gonna have to be the ones that
tell you guys, you know, you can't be on this property.
John:
That’s right.
Officer Hoock:
At this point, the person in charge of this property doesn't want you
on the property.
Lynn:
Correct.
Officer Hoock:
Now, election day... I mean, they might, you know, they might bend the
rules for you and say, "Yeah, you can come on the prop---," I mean,
that's gonna be I mean, that's gonna be up to them.
John:
What blows my mind about the whole thing is that, you know, she's
saying to me, "I want to show you something."
Officer Hoock:
Yeah.
John:
"If they see me here..."
9/66
May 14, 2022
Officer Hoock:
Yeah.
John:
She's a really well known citizen. She's on my board of directors on
my national group, okay?
Officer Hoock:
Gotcha.
John:
Uh, you know, and she says, "I guarantee you within 10 minutes, Gary
Sims will be out here going, 'What is she doing out h...'---and he's
got this big operation. He's getting worried about this little
girl...looking. What is up with that?
Officer Hoock:
I mean, at the end of the day, people can call 911 for whatever they
want.
John:
It makes me very suspicious, I mean, you know?
Lynn:
So I want to stay within the law, because I've never been arrested. I
have one speeding ticket in 2000. I'm maybe the most boring engineer
you've ever met. [laughs] And I am a rule follower.
Officer Hoock:
Yeah.
Lynn:
I read. I read---
John:
I'm an activist, okay.
Lynn:
I read... I mean, I'm an activist, but we stay within the law. We're
not - we're not going to do crazy, rogue stuff.
John:
But sometimes you stand up for the law and sometimes to make change,
you do wind up getting arrested.
10/66
May 14, 2022
Lynn:
[inaudible]
John:
But that's only if you know you're right and you have a lawyer right
behind you. You have a document from the Democratic party saying that
you are an official observer...
Officer Hoock:
Sure.
John:
You see what I'm saying? It has to be done like that.
Lynn:
So, I have a question. So...so on Tuesday, there is a meeting.
John:
I'm not looking to get arrested.
Lynn:
Yeah.
Officer Hoock:
I'm not trying to arrest anybody. I go home in 40 minutes, man. So...
Lynn:
So, I'll try to... I'll try to be quick. So... So on Tuesday, there's
a meeting at two o'clock.
Officer Hoock:
Yeah. Is that Election Day?
Lynn:
It's Election Day. It's a public meeting, I generally go and give a
public comment to allow disabled vets because I want them to start
streaming again, because they have the equipment sitting in a corner
and they are not streaming and I have a friend who just had a stroke--
-
Officer Hoock:
While it's on my mind... I'm a... I'm gonna say it while it's on my
mind... so like, I'm gonna keep going back to this Walmart---
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May 14, 2022
Lynn:
Yeah, that's fine.
Officer Hoock:
So like, let's say, because that's... Walmart's a public place. You
know, anybody can walk into Walmart.
Lynn:
Yeah.
Officer Hoock:
And you're, you're saying this is a public election. Anybody could
walk into a public election and, and give... and give a speech they
want.
Lynn:
A meeting, at public meeting, you can’t...
John:
Not really. You can't.
Lynn:
You can't.
John:
You're entitled to observe. You cannot interrupt. If they got rules,
you follow [inaudible]---
Officer Hoock:
If the owner of the establishment, the person in charge of that
establishment, if they have a problem with you, and they don't want
you there. And they want you formally trespassed from there. Then you
can't come back on that property.
Lynn:
So, are they saying that I can't come in at the two o'clock meeting on
Tuesday?
Officer Hoock:
That's what they're saying, I'm not saying that.
Lynn:
Oh, well, then I better bring my lawyer.
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May 14, 2022
Officer Hoock:
They're saying that they want you trespassed from this property---
Lynn:
I'm not on the...I haven't...I'm not on the property.
Officer Hoock:
Yeah, no you're not. I'm just saying, you're coming back Tuesday,
right?
Lynn:
Well, Tuesday, there's a public meeting at two o'clock. Where they
count all the votes---
Officer Hoock:
But it's on this property, and they don't want you on this property.
Lynn:
Correct. But I haven't done anything to----
John:
But she has a paper from the party?
Officer Hoock:
Yeah.
Lynn:
Well, I'm not... I'm not an appointed [observer] this year. I was not
appointed this year, I was appointed before. But what I'm saying is I
haven't done anything to, to not be allowed to a public meeting. A
public meeting!
Officer Hoock:
Well, I'm not saying you, you did anything wrong. But like I'm saying,
you know, if...if the person in charge of that property, they don't
want you there for whatever reason, because they don't like what, you
know, what party you're affiliated with, or who you are or what you
represent. And I mean, I don't know if there's something there's a
another law that says, you know, you can't be trespassed from that.
Lynn:
You can't disrupt a meeting, which I've never done.
Officer Hoock:
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May 14, 2022
I don't know of any law like that.
Lynn:
No. So, I just want to make sure I'm not getting in trouble on
election day.
Officer Hoock:
The way I've always rolled is that, if someone doesn't want you on the
property, and they want you trespassed from there, then I gotta, you
know, verbally trespass you, or I could fill out a form and have you
trespassed and you just can't come back on that property, until... the
only way you could come back on that property is if the owner of the
establishment says okay, "That's null and void. You come back, you
know, you're no longer an issue, You can come back." But I mean, if we
show up, like...let me say, let me just say like, we're like this, so
let's say, I have you trespassed, um according to what this lady
[Officer Carter] over here wants. And let's say, you know, Tuesday
comes, you guys come on the property, right? And we get another 911
call and another police officer shows up. And he looks up in our
system---because it all goes into our system like who's trespassed
from which properties.
Lynn:
Right.
Officer Hoock:
Let's say he shows up to the - to the call, he's like, "Well, you
know, they're trespassing on this property.", Well, that kind of puts
him in a bad spot.
Lynn:
Correct. Yeah.
Officer Hoock:
Because you guys have been formally trespassed from the property. You
know what I'm saying?
Lynn:
So, is that what...Are we being formally trespassed?
Officer Hoock:
That's what they want. Yeah. I'm not doing that, they want to do that.
Officer Hoock:
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May 14, 2022
So if that's....No, but what I'm saying is if that's the case, I would

like---
John:
[inaudible]
Lynn:
Hold on. I would like... like that in writing---
Officer Hoock:
There's a piece, there's a piece---
Lynn:
Right. And that's what I'm saying.
John:
[inaudible]
Lynn:
Hold on a sec, because thi... I have hired an attorney before, and my
attorney said, ‘If they keep harassing you, just because you're doing
your job, um, You need to get it in writing.’ , Because this is what
they do: They come out here. They told me to leave or I'm going to be
arrested. They...
Officer Hoock:
I have nothing to arrest you for.
Lynn:
Correct. But what I'm saying is, if I show up here on Tuesday to do my
job, which is a one-time of - in an election...I mean, they're
counting the votes on Tuesday at two o'clock, and I have volunteers
that are coming to that meeting. It's a public meeting. It's announced
online, the public can come. If I show up here on Tuesday, and what
they're saying is they're---
Officer Hoock:
You're formally trespassed.
Lynn:
And I'm...um, they've already not---
John:
Well haven't you ever noticed that---
15/66
May 14, 2022
Lynn:
Hold on---and they say that I can't come in? I would like that in
writing. I would like that in writing Today. If they're telling me I
can't come in on Tuesday, because it's...it's turning into a bit of
harassment against me. With the---every time I come---"Oh, you can't
stand there. You got..."---and I follow the rules every time ---"you
can't stand there." "Okay, I'll stand over here." "You can't sit. You
can't---"
Officer Hoock:
As long as you're off this property, you can stand wherever you want.
Lynn:
But they're saying I've already trespassed.
John:
The public meeting is happening inside. And the public is welcome...
Lynn:
And if----
Officer Hoock:
Okay, I'll kinda change the story a little bit. Let's say there's
some...there's a meeting on Tuesday, right? And like, let's say
there's some crazy guy, not you guys, but like some crazy guy shows
up. They have an issue with this guy, because he's just like, we'll
say drunk and belligerent.
Lynn:
Yeah, sure. Yeah,
Officer Hoock:
They can trespass him from the property. Now, like you're saying,
since it's a public event, since he's trespassed, you know, he can't
come back here anymore. Because they didn't want him here because he's
drunk. And he's, you know, being disorderly. So that guy can't come
back here, anymore.
Lynn:
Yeah.
Officer Hoock:
Does that make sense?
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May 14, 2022
Lynn:
Yeah, but that's what I'm saying----
John:
But she's never done that.
Lynn:
If...if...is that what they're saying? For today [that I can’t go on
the property]?
Officer Hoock:
I'm not saying---
John:
But maybe he's mad at her because she asks these questions that he
doesn't want to give the answers to.
Officer Hoock:
Say it again?
John:
Maybe she's asking questions in a public meeting about something---
Officer Hoock:
Right...
John:
that he doesn't want to give the answers.
Officer Hoock:
And I'll be honest with you, man, that's like, yeah, that's above me.
Like, I - I only work it within the parameters of the law. So I can't,
I can't unfortunately----
Lynn:
So it sounds...it sounds, I just want to get it straight.
Officer Hoock:
If someone wants you guys removed from the property, I gotta do what I
gotta do and have you guys removed from the property---whether you're
causing an issue or not.
Lynn:
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May 14, 2022
Correct. And I get that. You're doing your job, I get that, that you
don't get to decide that---
Officer Hoock:
We have...we have people walk into, you know, McDonald's sometimes or
wherever, and they're like, you know, "I don't like him because of
whatever reason," and we got to have him trespassed from the property,
even though they didn't really even do anything wrong. They just don't
like that person.
Lynn:
So the reason I'm asking for it, kind of in writing is because for the
2020 primary, I actually caught these guys processing ballots
illegally. Just want you to know that I was with - I was an official
observer for the Democratic Party. And I went up the chain of command
every place I could, I ran it up every flagpole. And essentially, the
Democrats, they told me shut up about it. And I said, No. And what I
did was I lobbied for five months. And I can tell you that three days
before they started opening ballots for the general election, the
state election director---because of my advocacy---put out a notice
to---a numbered memo---to every county saying you can't keep
processing ballots illegally in this way, you have to follow the law.
Okay, so ever since then, there's been this---
John:
It's a bit of a zoo.
Lynn:
And then the Democrats fired [me], they said, We don't want you
observing anymore. We wanted you to observe but we didn't want you to
tell anyone what you saw. So I'm...I'm an--- integrity is a gift you
give yourself and I [practice] civility---I've always been civil. And
so I guess what.... And so, after that, Gary Sims filed a complaint to
the state board against me, saying that I tried to illegally access a
voting location, because I pulled into this parking lot on election
night, got out of my car and said, ‘Hey, I'd like to observe this
process.’ And he said, ‘No. Leave.’ And I said, ‘I'd really like to
observe.’ And he said, ‘No. Leave.’
Officer Hoock:
The only way can make you leave is if---like I said---someone
trespassed you from the property, which is what they're trying to do.
Lynn:
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May 14, 2022
Okay, so how can I - so that I can fight that? Because what ended up
happening ---
Officer Hoock:
I'll refer you to your legal team and all that.
Lynn:
Because what's happened is they did...they filed a complaint to the
state board and for a year I tried to get that public record--- that
complaint---that he's filed against me and they would never give it to
me and I hired an attorney. And they said ‘Oh, well, actually, there
wasn't a complaint filed against you,’ even though they told me there
was. So like, I'm being accused of things, yet, I never got any
paperwork. I never got any emails saying, "you can't come." It's just
they don't want people watching the process. And that's, that is the
only way this country is going to survive. So, how...so?
John:
This is why there is so much mistrust in this country.
Lynn:
But you're not telling me I can't come on Tuesday?
Officer Hoock:
I totally get it you guys, you know. I mean---
Lynn:
And I know you gotta get going...
Officer Hoock:
I'm not picking sides here.
Lynn:
Oh, no. And I'm not suggesting ---
Officer Hoock:
At the end of the day, what - what the issue here is, is they just
don't want you guys here, for whatever reason. I don't know, you know,
they don't want you guys here. And they want you guys trespassed from
the property. So, I gotta tell you guys, you can't come on the
property. And the...the only way you guys can go back on the property
is if whoever's in charge here says, "Okay," you know, "they can come
back on the property."
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May 14, 2022
Lynn:
So if I show up on Tuesday... like I said, I'm a rule follower...
Officer Hoock:
Yeah, and you are formally trespassed from this property.
John:
And she's...she's never been formally ----have you been formally---
Lynn:
Never!
Officer Hoock:
Yeah, It's basically just like a form. Like, it's not....
Lynn:
Can you ask them to bring that to me then?
Officer Hoock:
I fill it out. Yeah, yeah yeah yeah.
Lynn:
Oh, okay. I mean, I know you don't want to....not that I'm looking to
get in trouble here. But ---
Officer Hoock:
Well, no one's getting in trouble. But the bottom line is, they just
don't want you guys on the property.
Lynn:
Well, you know ---
Officer Hoock:
I guess you guys are creating issues? I don't know---according to
them.
Lynn:
Well, we're asking tough questions that they don't want to answer,
because the public will not accept the answer that they are giving,
which, you know...?
Officer Hoock:
Yeah.
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May 14, 2022
Lynn:
And so, so I guess---
John:
This is why crummy movies are made, like, 2000 Mules, okay?
Lynn:
So I've got---hold on (laughing).
John:
So, what's going on over the country with mistrust and the danger in
that.
Lynn:
Yeah. So we're just trying to make it open and transparent. I mean,
so...so let me just, I want to make sure that I'm clear. So "formally
trespassed"?
Officer Hoock:
I mean, that's what they're asking. They want you guys trespassed from
the property.
Lynn:
So they're asking You to do that?
Officer Hoock:
And I got, basically just got to fill out a piece of paper saying you
guys can't come back on this property.
John:
So we need to get a copy of that----
Lynn:
Or do we, or do we, or do we---
John:
---so that we can take it to our lawyer and challenge it. Because
where did----and then we want a trial...
Officer Hoock:
Sure.
John:
And we want proof that we did something wrong.
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May 14, 2022
Officer Hoock:
I mean---
John:
I mean, isn’t that the way it's supposed to work?
Officer Hoock:
Yeah.
Lynn:
I mean, I'm not---well hold on a second! Hold on. But here's the
thing. If I----
Officer Hoock:
I guess you guys are recording and they have an issue with it.
John:
What's wrong with that?
Officer Hoock:
There's nothing wrong with recording, but the problem was it was on
their property. So like, let's say, I trespass you from this property.
Right?
Lynn:
Right.
Officer Hoock:
And you guys are like, "Alright, have a nice day. "and you continue to
stay right there and record. I can't stop that. Because you're no
longer on that property. These guys [ABC Supply] would have to
trespass you from this property.
John:
Where was I on their property?
Officer Hoock:
I don't know. I wasn't here for that.
Lynn:
We were...we walked we walked up to....remember we took a picture next
to the sign.
22/66
May 14, 2022
John:
We walked around the building and I took a picture---
Officer Hoock:
Where were you guys, on the street?
Lynn:
We were on the grassy area by the sidewalk there. And then where the,
you know, the um, the candidate signs...
Officer Hoock:
I didn't see.
Lynn:
Yeah, so on the driveway on the other side---
Officer Hoock:
You guys, you know, like I said---
Lynn:
Yeah. So here's---
Officer Hoock:
If I leave and you continue to stay on the street and record, stay on
this property [ABC Supply Co] and record... there's nothing I can do
about it.
Lynn:
So my question is real quick, is that---
Officer Hoock:
They just don't want you on that property over there. That's all, so.
Lynn:
Okay.
John:
So where is their property?
Lynn:
And that's what I was gonna say---hold on John, I got two questions.
Officer Hoock:
Yeah.
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May 14, 2022
Lynn:
So my question is----
Officer Hoock:
Ask me a lot of questions, I'm giving you my best answer, really.
Lynn:
No, I know. I know. I know. So since I haven't been... excommunicated
from the property or whatever you call it---when I come on Tuesday,
legally I'm allowed to do that, because it's a public meeting.
Officer Hoock:
[sighs] See, I mean---
Lynn:
I mean, let's say you don't do paperwork.
John:
If you write something up---
Officer Hoock:
I think you're really hitting that gray area, because---
John:
What's the gray area? It's a public meeting.
Officer Hoock:
I got that. But you're trespassed from that...uh---
John:
Where did we get found guilty for trespass?
Lynn:
Wait, wait. John.
Officer Hoock:
You're not guilty of anything.
Lynn:
John, John. Hold on.
John:
You're gonna ban us.
24/66
May 14, 2022
Lynn:
No, he's not, he's not. Wait, wait. John, John, John. Hold on. John.
Just a second.
Officer Hoock:
No, no, no. I'm not charging you with anything, man.
John:
I think you should, if you think that---
Lynn:
No, I don't think you should!
Officer Hoock:
I don't want to do that, man.
Officer Hoock:
'Cause that way you could bring up the evidence---
Lynn:
No.
Officer Hoock:
No. I don't want to do that.
John:
---to show us what we did wrong because we are entitled to know, why
our rights are being damaged here.
Officer Hoock:
I mean, I'll be honest with you guys... point blank with me. I know
you're recording this thing.
Lynn:
Yeah, of course I am.
Officer Hoock:
You've asked me some very difficult questions---
Lynn:
and that's fine. No, I know.
Officer Hoock:
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May 14, 2022
And I'm I'm giving you the best answer I possibly can---
Lynn:
Okay, I'm going to give you the easiest question I can. I'll give you
an easy one. Okay. So here's my easy question: So on election night---
because this is my job, right? This is my job. This is what I do. You
can go to---
Officer Hoock:
I'm just trying to please you guys. And make this whole process as
peaceful as possible, you know?
Lynn:
... if you could, if you could do me a favor and just walk with us
around to the other side and show me where can I stand on election
night that I'm not on the property.
Officer Hoock:
On the street. On the street, yeah.
Lynn:
And you're allowed to stand on the street?
Officer Hoock:
Yeah! I mean, that's---
Lynn:
Am I allowed to stand on the grassy...the um...on the other side of
the ditch?
Officer Hoock:
As long as it's not on their property, yeah. You can do whatever you
want.
Lynn:
Okay.
John:
How many feet from the tar?
Officer Hoock:
Uh, man, those are questions...I don't know, I don't know all that,
man.
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May 14, 2022
Lynn:
So, my other question is... so---
Officer Hoock:
My advice to you my would just be stay on the street if you want to
record, you know? Or go on a property where you are allowed, like
here. 'Cause, no one's trespassed you from here. And you can record
here, you know.
Lynn:
Okay, so would you mind just going out and so I can show you where we
were, and if that's okay?
Officer Hoock:
Uh, sure!
Lynn:
Okay. I appreciate it.
Officer Hoock:
And again, I'll give you the best answer I can.
Lynn:
Oh, no, and I appreciate that. Yeah,
John:
She [Officer Carter] might know. She might want to come with us
[inaudible]
Lynn:
Yeah, I mean, I don't want... I don't want to be somewhere where I'm
not allowed. So...
Officer Hoock:
Let's just all talk here so that way, we're all on the same page. So,
they are obviously recording, you know, whatever is going on over
here: election integrity. You want them trespassed from the property,
which you have the right to do, because you're the one in charge of
this property over here, correct?
Officer Carter:
Correct. Correct.
Officer Hoock:
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May 14, 2022
So they want to know---because they're gonna come back Tuesday night--

-
Lynn:
Well, no. Tuesday, at two o'clock. There's a public meeting...and you
see me at the public meetings?
Officer Carter:
Yeah, I have.
Officer Hoock:
They want to know, where are they um...well, so they're not on your
property, but they're still able to record. I told them on the street,
um, or another property they're not trespassed from. So I guess you'd
be able to answer their question better than I would as far as where
the property line is, so that when they come back, they can ---
Lynn:
And I guess I got two questions. One is, there's a public meeting at
two o'clock on Tuesday. And you know, me...
Officer Carter:
Yeah.
Lynn:
because I see you at all the public meetings and I'm not a
troublemaker at those meetings. I teach people what's going on.
Officer Carter:
Right.
Lynn:
And, and then we're going to come on election night just to watch
what's going on. I understand he won't let us inside the building, and
we will take that up with our attorneys. And we'll do that through
that way. But, he's turned me away from just standing somewhere and
watching and, and I---like I was telling Officer Hoock---I've never
been arrested. I have one speeding ticket from the year 2000. I am a
rule follower. I have got kids. I don't want to get myself arrested. I
just want to know where can I stand legally? To... So... so, I can
record what's going on.
Officer Hoock:
I'll give you my best answer.
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May 14, 2022
Lynn:
Yeah.
Officer Hoock:
As long as these folks here you don't have an issue with you being on
their property. You can, you can be on their property. That street,
that's a public street. So you can be on the shoulder, on the
street,.... Just...if you think you're hitting that point to where
you're on their property. I wouldn't even go there because they don't
they don't want you on the property.
Officer Carter:
This is where I come from. So, I've come from the Wake County
Sheriff's Office. Okay, so I've been in law enforcement for a while.
Whether it's you, whether I know you or not. Since I'm the one that
I'm the one responsible...here. You know, I noticed...my - my job is
to be observant. So, when I saw your car, and then I saw you go
slowly, and then the next thing you’re over here, then I confirm that,
you know, okay, something suspicious is going on. I cannot confirm---
John:
What was suspicious about it?
Lynn:
Well, that's okay. Well, just...just keep going.
Officer Carter:
I mean, it's suspicious. So the... what...what you shouldn't have done
is come on the proper---. You know, if you're walking on the prop---
people walk on the side of the road all the time.
Lynn:
Right.
Officer Carter:
And if neither...where you errored is going up to the gate, tripping
the sensor...
Lynn:
Tripping the sensor?
Officer Carter:
And they have it... So Wake County...so this is... it's not just a
29/66
May 14, 2022
Board of Elections, you know that it's a secure facility.
Lynn:
Sure.
Officer Carter:
When the gate is tampered with, okay?
John:
We tampered with it?
Lynn:
Tampered with it?
Officer Carter:
Yes. You put your gate... you put your foot up, and you tripped the
sensor.
Lynn:
We were look... we're looking at the... we're looking at all the
signs----he's from out of town and was asking, who's the---
John:
Sorry I tripped it. I'm guilty, I tripped it.
Officer Hoock:
I didn't see any of that.
Officer Hoock/John:
[side conversation - inaudible]
Officer Carter:
Wake County, so Wake County security...Wake County security called us
and said, "Hey," you know, "we have these individuals at the gate and
they tripped the sensor."
Lynn:
Oh, we did not mean to trip the sensor.
Officer Carter:
So because of that. Because that, that right there. That's what---
that's the borderline. For me. Okay?
Officer Carter:
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May 14, 2022
So whether or not, um, you meant to do that, You know... So the, the
director has, has asked for you to be formally trespassed, okay?
Because of that specifically, that, you know, not only are you on the
property, but now you're tripping---do you see what I'm saying? It's
like once you're in here, now you're walking on the trip---it's just
one thing after another. Do you understand?
John:
Well, I should be cited, because [inaudible]
Lynn:
And I...I...I fee---
Officer Carter:
Okay. So let me explain when you're formally trespassed, it's not a
cite. You're not being cited. You - what you're doing is you're being
given a paper. It's going to be in their system that you have been
formally trespassed. That means that you are not allowed on the
property whatsoever. However, it becomes a citation...it becomes
criminal when you do come onto the property. Then it's an arrestable
offense. Okay?
Officer Carter to Officer Hoock:

I mean, am I speaking...?
Officer Hoock:
Oh, naw, you're alright.
Officer Carter:
So, at this point, no one---you're not in trouble. You know, I don't
want you to sit there and say---but I'm not citing you or anything.
Officer Hoock:
In simpler terms, it’s a piece of paper saying that you just can't
come back on the property.
Lynn:
Yeah, except my job is to go to the election meetings.
John:
It's a public meeting.
Lynn:
It's a public meeting.
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May 14, 2022
Officer Carter:
It is a public meeting.
John:
Tuesday, two o'clock. She can not go to that meeting?
Officer Carter:
So,hold on---
Lynn:
Can I ask a question?
Officer Carter:
Let me finish [inaudible].
Lynn:
Okay, go ahead.
Officer Carter:
So, from this point on right now, you will be formally trespassed. If
you have somebody else that can go in lieu of you, I would have that
done. If you come onto the property, I'm here. I have full authority
to arrest you on site. You know, I don't want to go that far.
You...we're... it's like we're talking, right? We're having a
conversation.
Lynn:
So, I have a question. So one of the things that we were doing was
we're going we're walking down and we're saying where can we legally
stand on election night so that's really why we came down here today,
to say... he wants to get we wanted to get pictures in front of the
sign out front, which we did and I've seen lots of people do that.
Right? And...
Officer Carter:
[inaudible]
Lynn:
Hold on. May I finish? May I finish? Thank you. So we walked up the
grassy area here. We made sure not to even walk into the parking lot
there. Like we walked way on the side. We took some pictures by the
sign. We went over---he's from out of town. I was explaining to him
some of the candidates. We literally looked at the gate over there.
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May 14, 2022
And we said, there's no sign here that says "Keep Out". There's no
sign that says the public can't come in. I've parked in that parking
lot, many times for meetings. So that, as far as I'm concerned, is a
public it's a public parking lot.
Officer Hoock:
Yeah, I mean at that point. You had every right, you had every right
to be there.
Lynn:
Right.
Officer Hoock:
But, um. Once you get formally trespassed for whatever reason...
John:
But yeah, but you don’t have to show? you can charge us without having
a legal reason ---
Officer Hoock:
I'm not charging you.
John:
--- to ban us off, and then if we came back to a public meeting
Tuesday...
Officer Carter:
You will be arrested on sight.
John:
...we will be arrested, so we will plan on being there Tuesday, I want
you to know, and need to be charged. Okay? We'll bring the media,
okay? And this will be an incident. And it's sad, it really is,
because we don't want to cause any trouble.
Officer Carter:
Okay. Okay.
Lynn:
Yeah, I mean, is there a way to just go... is there a way ---
John:
The cynicism [inaudible]... this country's in crisis because of the
secrecy. What do you think we are, radicals or something?
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Lynn:
And I will tell this ---
John:
She's a mother. I'm a grandpa.
Lynn:
I am actually kind of fed up with Gary Sims, calling the state board,
filing complaints against me...I mean,as far as I'm concerned, at this
point, he is harassing me.
John:
So, she needs to make arrangements.
Officer Carter:
That will be something that's on a legal side. I'm just...I'm just
employed to...carry out---
Lynn:
I guess I don't understand what... we didn't go...we didn't go on....
I guess I don't understand why.
Officer Carter:
So, Wake County has you [motioning to John] on video, on the property.
And the gate, which was closed---
Lynn:
It was open. It was open. It was open. The gate was open. The gate was
open.
Officer Carter:
It was closed. No, it was closed.
Lynn:
Okay. I mean, I was recording the whole - the whole time and the
gate... the gate was open. And what happened was, the gate started to
close and he was standing right there. And he went, "Oh, shit, the
gate. Okay." And then we noticed that some cars were about to come out
[meant to say come in] and so we moved a bit out of the way.
Officer Carter:
Okay, that's fine. So right now---
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Lynn:
But there was no sign that said “No Trespassing”, it didn't say No---
this lot here [front lot] said “No Public Parking”, so we did not go
in there. I mean, I'm, I'm a law abiding... I mean, I will follow
every sign in place, so I don't understand why I'm being trespassed.
Officer Carter:
If you want I can get Gary out here. So...
Officer Hoock:
So I'm gonna fill out a trespass form and you got it from here?
Officer Carter:
Okay, that's fine.
Lynn:
Why? Why are we doing a trespass? Hey---
John:
You got a copy? We'll get a copy of this right?
Officer Hoock:
Um, I don't give you guys a - you can just take a picture of it.
John:
Oh good, that works.
Lynn:
So---
Officer Hoock:
Basically, they just get a copy of [inaudible]
Lynn:
He's seriously gonna trespass me from the building?!
Officer Hoock:
Just be clear. It doesn't mean you guys are in trouble, it just means
that you can't come back to this property.
Lynn:
I know. But that's my job, on Tuesday, to come back---
Lynn:
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Well, I'd get up with your legal team about all that. You know?
John:
[inaudible] legal team and make a plan, that's all.
Officer Hoock:
Um, you have your ID on you right now?
Lynn:
Oh yeah, I do. I have one question. So at what point am I allowed back
on the property?
Officer Hoock:
Never.
Officer Hoock:
Oh, for God's sakes. Are you kidding me?
John:
What'd she do?
Officer Hoock:
What's that?
John:
What did she do wrong?
Lynn:
We went...we went up to a gate.
Officer Hoock:
Technically, she didn't have to do anything.
John:
Well, how do we challenge that?
Officer Hoock:
[inaudible] get up with your attorney, man.
John:
[inaudible] Where is our rights? Do you follow what I'm saying?
Officer Hoock:
Yeah—
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May 14, 2022
Lynn:
I think he does, he's following it.
John:
We're being banned!
Officer Hoock:
Yeah---
Lynn:
...for doing nothing.
John:
From public property. Okay? That has to do with elections, because we
walked into a parking lot?
Lynn:
We didn't even walk into the parking lot.
John:
A public parking lot?
Officer Hoock:
[inaudible]
John:
You should go take pictures. There no signs that say "Hey, keep out."
Officer Hoock:
Yeah.
Lynn:
I would prefer it if they didn't give us one because I need to be at
that meeting for my job. But there's, I mean, we even...when we
approached over there to look at the sign---
Officer Hoock:
I'm a [going to have to] fill it out, but I mean, if you guys decide
to show up on Tuesday and go in there, I mean, that's...that's a risk
you're taking---
Lynn:
What I'm saying...what I'm saying is, what evidence do you... I mean,
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May 14, 2022
I get that he's saying that we can't be here and wants us trespassed--
-
Officer Hoock:
To make it clear, I'm not the one telling you guys you can't go back
in there.
Lynn:
I know, I know.
Officer Hoock:
They're telling it. I just fill the form out. I...I put it in our
system. That's...That's my only involvement. You know?
Lynn:
So, this an early voting site as well over here. I'll have you know,
it's an early voting site and I haven't voted yet.
Officer Hoock:
Yeah. I mean, I would just go to a different...is there a different
voting place?
John:
[inaudible] they ban her from voting? [inaudible] somewhere else...
Lynn:
I mean, jeez. They really don't want questions. I mean, that's just---
that's crazy.
Officer Hoock:
I guess [inaudible]. You're asking me some pretty difficult questions.
Lynn:
Yeah, no, I understand.
Officer Hoock:
I'm really giving you my best effort, and my best---
Lynn:
Let me get my driver's license. I don't---
Officer Hoock:
Or I can just write it down. It doesn't matter. All I need is your
name and birthday.
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May 14, 2022
Lynn:
Yeah, my name, yeah.
John:
[on phone] You’ve been good. Thank you.
Lynn:
[sigh]
Officer Hoock:
Alright. What's your name?
Lynn:
It's Lynn. L Y N N. My gosh.
Officer Hoock:
I'll be honest with you. If I was in your shoes. You know. What I
would do is I would just get up with...who's this guy?
Lynn:
Gary Sims. He's the election director.
Officer Hoock:
Gary Sims [inaudible]. I mean, everyone's got a boss. So have you
reached out to his boss?
Lynn:
Um...I've been trying to do this diplomatically, honestly, for six
years.
Officer Hoock:
[inaudible] I'm just saying, you know, I'm trying to help you out,
too.
Lynn:
I appreciate that.
Officer Hoock:
[You] [m]ight, might want to go that route and file some sort of a
complaint against whoever this guy is. [It’s] like you're being
blackballed, you know.
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May 14, 2022
John:
[inaudible]
Lynn:
Yeah. Yeah. Okay. So---
Officer Hoock:
L Y N N
Lynn:
Yep, and then my last name is Bernstein B E, R N, S T, E I N.
Officer Hoock:
Alright, what's your birthday?
Officer Hoock:
Sure. It's one, fifteen, seventy-five.
John:
[on phone] she hasn't voted yet, so, if she comes here Tuesday to
vote---
Officer Hoock:
Seventy-five---
Lynn:
This isn't a voting site on Tuesday.
Officer Hoock:
You, said seventy-five?
Lynn:
Yeah, seventy-five
Officer Hoock:
You have a North Carolina---
Lynn:
[to John] It's early.
Lynn:
I do. I don't know the number, but I can grab it.
Officer Hoock:
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May 14, 2022
No, I think that's all I need. Just give me a sec.
Lynn:
Okay. Sure.
Officer Carter:
So---
Lynn:
Yes, ma'am.
Officer Hoock:
You were correct about when you guys went up to the gate that it was
closing. I think where, um, what happened is as it was put in
there...and they said you [gesturing to John] put it in there like two
or three times.
John:
You know, there was a car pulling up---
Officer Carter:
You were right, that it was open and it was closing. But then---
John:
It wasn't closing.
Lynn:
It started to close and you're standing there and you went "Oh gosh.
Oh, I must be setting that off...and then we backed off... and there
was a car coming out [meant in].
Officer Carter:
I just want to get that clarified.
John:
But then they turned around, they didn't come through.
Lynn:
Yeah.
Officer Carter:
What else?
John:
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May 14, 2022
But there was no signage.
Officer Carter:
So, it's the Board of Elections. And I'm just reiterating what they
said. I just spoke to them [inaudible]
Lynn:
Yeah, yeah.
Officer Carter:
The Board of Elections is not open to the public. Even though there
was early voting today, up until three o'clock. Once three o'clock was
done.
Lynn:
Right.
Officer Hoock:
The polls, I mean, all the polls were closed---
Lynn:
Sure.
Officer Carter:
---and everyone had to leave.
Lynn:
Yup. Okay.
Officer Carter:
But you're right, There's no public parking like that. Um, but we
wanted to emphasize that the Board of Elections was not open to the
public. So that's...
John:
Tuesday?
Lynn:
No, no, they're not open right now.
John:
We weren't trying to get in. We were just looking around.
Officer Hoock:
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May 14, 2022
No, I'm just saying,
Lynn:
I hear what you're saying. Yeah, it's not a public meeting. It's not a
pub... right---
Officer Carter:
So that's, so, so we're just trying to tie everything. Like I'm not
trying to have you [inaudible]. You know, I'm not sitting there saying
you're getting charged. You know? I'm just---
Lynn:
I mean, what you're telling me is I can't do my job ever again. Well,
I can never come on this property. Again. That's my job.
Officer Carter:
So the thing about it is that you can talk to him [Sims], you can talk
to the board, and you can get it reversed.
Lynn:
The board can reverse that?
Officer Carter:
They can get it reversed.
Lynn:
But has the board made a three to two vote to have me ‘cause---
Officer Carter:
They don't have to do that, I have that power. I have the authority to
do that.
Officer Carter:
Okay. All right.
Officer Carter:
So, but what you can do, um you can contact...definitely contact the
board. Okay? I would definitely contact them, email them. Um, call
them. Um, I'm sure that there was other ways to find out where you
would be able to stand. You...you see what I'm saying?
Lynn:
Can I explain to you something?
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May 14, 2022
Officer Carter:
Sure.
Lynn:
I have asked. I have emailed Gary multiple times to say, "Hey, can you
explain to me this process---"
Officer Carter:
When you went to the board meeting, why didn't you bring it up to the
board meeting? I just--
Lynn:
Because they give me two minutes and I have to---I'm fighting for the
disability community---two minutes every week. Sometimes it's every
month, and I have to try to get exactly what I want [to say]---
Officer Carter:
Your cohort...Your um, your um...the, the individuals that were with
you and they kept asking questions---
Lynn:
They're not...they're, they're from a different organization. And
they, what they were saying was, "Hey, the board won't tell us what's
going on. You seem to know what's going on. Can you tell us what's
going on?" And I was telling them and they said, "Well, what's the
stuff under the DS---you know---850 there?" And I said, "Honestly, I
don't know." And they take it upon themselves to ask questions, and
that is fine.
Officer Carter:
And they answered it...Yeah, I guess what I'm trying to say...and it's
not to be confrontational---
Lynn:
Sure.
Officer Carter:
---It's...Logically, um, I guess what it is...you... If you wanted to
do that prior, I guess it would be...really....It would be thought out
or it would be a good idea to say "Hey, you know since we're on the...
we're so close to elections, we need to find out what is---like for
instance---we have a...uh diagram, a map for the campaigners---
Lynn:
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May 14, 2022
Sure.
Officer Carter:
---of where they're allowed to be.
Lynn:
Sure
Lynn:
Where the restricted areas, where the buffer areas---
Lynn:
And are the campaigners allowed to go over there and take and remove
signs from that area right now. Because I was even saying to him, I
was saying----
Officer Carter:
They were instructed after the three o'clock poll, that they had to
remove their---okay.
Lynn:
So---
Officer Hoock:
Right here, and sign there.
Lynn:
Can I have one more question before you sign that? Can I get one more
question before you sign that? So you're trespassing both of us?
Officer Carter:
That's correct.
Lynn:
Even though...
Officer Carter:
I've been instructed to, yes ma'am.
Lynn:
Okay. All right. So let me you're saying well, why don't you just ask
Gary and I can... I can tell you that I when I emailed him two years
ago to ask him about a process, he said, "You have to come in person
to my office or I will not answer your questions.”
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May 14, 2022
Officer Carter:
Right there, and then sign on the bottom there.
Lynn:
And I am, and I said to him "Um, COVID is happening.”
Officer Hoock:
I'll be taking pictures...uh, of that.
Lynn:
Can I, you know, can I please, can we just talk about this on the
phone?" And he said, "No, these are in person processes and I won't
answer any of your questions unless you've come alone to my office."
And so essentially, I said, Yeah, essentially I said to him, Gary, if
you think a woman is going to come alone to your office after you've
already made it clear that you will not respect her boundaries. There
is no way I'm coming to your office. I've tried it [to clarify] and
you know, that last meeting that I was at, when I handed them that
letter from the state board, I wrote the state board two years ago, I
sent that letter certified saying please give us instruction, please
give us directives. We're having volunteers go. And the law says this,
but Gary's telling us we can't, we can't see this process. But they're
doing it in other counties, they're showing this process. "Please give
us guidance," and they will not give guidance. And so I've done my due
diligence to try and find out like where am I allowed to stand on
election night? What am I allowed to see? What am I allowed to ask
for? Um, and quite frankly, I mean, we walked over, he was like, Oh,
who are the candidates? And I'm telling him, we're and I said, Oh, I
wonder if Wiley just he wants me to just take a signs down because I
know some of the candidates and I go and help them put up and take
down signs.
Officer Carter:
The election night is when the candidates, like...the campaigners? If
they... if they.... I believe that they were instructed to take the
campaign signs out today. If not, they will all be taken down --- and
discarded.
Lynn:
Right. Sure. And we'd like to... because I worked for campaigns, and
we'd like to, you know, I put up signs for people and take them down.
So really, we're just standing there next to the signs and that's....
I mean, I guess I just don't get it. You know, I know he's tried to
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May 14, 2022
kick me out for a long time. For six years.
Officer Carter:
Right.
Lynn:
I've been coming here for six years and I've been---like I said, I've
never, I got one speeding ticket. It's, you know---
Officer Carter:
and I appreciate that, because when I pull people to over... look, so,
I don't want you to think that I'm being unreasonable and not thinking
things through---
Lynn:
I understand, you're doing your job.
Officer Carter:
and so...I always try to look at, you know, your perspective, but his
perspective as well. However, because it's a...a...a government
facility, you know, I have to make sure that my i-s are dotted, my t-s
are crossed, just because I'm liable...at that point.
Lynn:
I understand, I understand.
Officer Carter:
Because...I [inaudible] you.
Lynn:
I get it. I get it. I know.
Officer Carter:
You know, I don't know him. So I'm doing my to due diligence to ensure
that if there's a vulnerability in the gates or you know, GSA needs to
be aware of it so that way this facility remains secure.
Officer Carter [to Officer Hoock]:

I appreciate it.
Lynn [to Officer Hoock]:

Can I get your card? By any---
Officer Hoock:
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May 14, 2022
Uh yeah.
Lynn:
[aside] Do you have a card? Okay
Officer Hoock:
My name...and that's my badge number.
Lynn:
Oh, okay.
Officer Hoock:
Is that good enough?
Lynn:
That's good. Unless you have a phone number on your, uh...way I can
reach you because---
Officer Hoock:
Um, I mean, it's just Officer Hoock, uh...
Lynn:
Okay, alright.
John:
I'll call you Captain Hoock.
Officer Hoock:
I ain't that high up (laughing). I'm not that important, but, If you
need to get with me personally, um, just call dispatch, Raleigh
dispatch, and then just ask for Officer Hoock. And then, um, if I'm
not working an officer will take the call and then he'll shoot me an
email or a text and I'll get up with you guys the next day or when I
return back to work.
Lynn:
I still have - my one question is I understand if I come here for the
public meeting, they---
Officer Hoock:
I'm not working Tuesday.
Officer Hoock:
---they will arrest me. But on election night, I...I can tell you,
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May 14, 2022
because I have my ear to the ground, and I, I'm in some Libertarian

groups and some Republican groups and Democrats. I am telling you,
there will be people coming to stand and watch on election night.
Where can we stand where we will not get in trouble? Can you tell, us
can you tell us---
Officer Hoock:
Well, actually...
Officer Carter:
I can find out.
Lynn:
Yeah. So. Thank you so much, I appreciate it.
Officer Carter:
Thank you, sir.
Officer Carter:
So, I'm all about clarity. I'm all about you know, being amicable.
Lynn:
Yeah. Yeah.
Officer Carter:
So and I have no problem. You know, just like I work with the
campaigners, you know? They weren't allowed to have tents. They're not
supposed to have tents. But we've met them halfway. Do you see what I
mean? It's not that we're...they're being unreasonable [inaudible].
Lynn:
Okay.
Officer Carter:
So if they're here, then that's fine. I will make sure... I will make
it a point to talk with both Olivia and Gary, and say, "Where exactly?
Tell me where the line is drawn."
Lynn:
Right.
Officer Carter:
Because, yeah, we don't want want a fiasco, you know?
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May 14, 2022
Lynn:
I don't want to impede... I don't know... because sometimes they bring
the um....sometimes the chief judges come in to drop off materials on
the side. Sometimes it's the oth--- I had anticipated having people go
on that other side. Um, I know we can't block the street, but there is
a sidewalk over there. Um. and I thought maybe that would be, that...
I mean, that would be a good place to go. But, um... what I, what I
don't want is for Gary to say, like ‘You can't go to the Walgreens
because we don't want you to see what we're doing.’ Okay.
Officer Carter:
So, he's responsible for the property, Gary is. And the property...I'm
not entirely sure, it could be the perimeter of the fence to the
fenceline. Um, I'm not sure, 100%.
Lynn:
Would you mind just walking with us for a minute, I just want to make
sure that we're... because I, if I can't get a hold of you before
Tuesday, and people show up, I want to make sure that I tell them,
"Hey, you have to keep the noise down because they're doing business
and we can't... you know, I try to make sure... because, that was one
of the things I was, I was actually a little upset about, was that
some of the people in that meeting were being very like... and so I
took them afterwards and I said, "Guys, you gotta chill out. You
gotta---."
Officer Carter:
You're talking about the man?
Lynn:
Yeah
Officer Hoock:
[inaudible] kinda like....
Lynn:
I told him to chill out. I was like, "You gotta chill". He's new to
this and he got you know, got a little adrenaline and, and so I had to
kind of pull them back and say, "Hey---"
Officer Hoock:
Well, I'm glad you did---
Lynn:
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May 14, 2022
"---there's a time to ask questions and...", because they're all new

to this. You know, it used to be that I was the only one who came to
these, and maybe like, two League of Women Voters, and now people want
to see the process. And unfortunately, when they come, they don't
explain very much. And so, I try to explain things because they're
like, "Oh, they're opening ballots. I'm going to call , you know, I'm
going to call some...", I'm like "they're allowed to do that. So chill
out. " And so I was a little upset. I could tell they were getting a
little overzealous and but afterwards, I stayed after and talked to
him.
Officer Carter:
Well, that's why I, you know, I projected my voice and, you know, I
wanted to get everyone’s attention, say you know, the meeting is
adjourned [inaudible].
Lynn:
Absolutely. And that was definitely the way to do it. [laughing]. I
appreciated that.
Officer Carter:
I wouldn't mind working with you, but I don't... So I started working
here in January.
Lynn:
Yeah.
Officer Carter:
Okay, so, I'm not familiar with a lot of, I'm not familiar with a lot
of the things. So a lot of... I'm learning a whole lot---about
democracy.
Lynn:
Yeah, yeah, yeah.
Officer Carter:
And how the election is supposed to go. And it..it's, you know, if
there's one thing that I've learned is that this place is...it's
secure.
Lynn:
Right.
Officer Carter:
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May 14, 2022
You know what I mean? So---
Lynn:
---and that's good.
Officer Carter:
It's very good. So this is what I'm going to suggest to you, because
like I said, I'm not unreasonable. I don't know where you are. And I
don't want to misguide you. And I don't want to give you
misinformation, because the next thing you know, you guys have
[inaudible] and we have an issue and I don't I want to avoid that. So
this is what I'm going to suggest with you:
Officer Carter:
Uh, Monday, right? Monday morning, have someone... don't call. Don’t
you yourself--- don't call or you [John] can call and just say, um,
you know, we represent or...I---
Lynn:
We're different organizations, kind of...but yeah.
Officer Carter:
However you want to word it... and you just say that we're concerned
about where we’re allowed to be on the property on election night. We
want to be amicable and make sure that everything is in line, you
know, just...
Lynn:
Sure. Yup.
Officer Hoock:
So that's what I'm going to suggest that you do. So that way you have
a clear and concise---idea
Lynn:
I know, but if you think but if you think we're going to call and get
any answer. I mean, I've sent certified letters to get answers and I'm
not getting answers.
Officer Carter:
I'm not saying that you call. What I suggest: have somebody else call.
Lynn:
But what I'm saying is since you're the one who sort of makes that
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May 14, 2022
decision of...here's where you can stand but you can't stand here. I'm
just asking for you to just poke your head on the other side. Okay,
Officer Hoock:
One of the other things I can do is on that... because I will be here
until seven o'clock on Tuesday. Okay? I can, when I start seeing
people, I will make sure, like, I'm gonna go see them right now. And I
will want to know where exactly can people be." Just like a did with
campaigners. "Please let me know what you want me to enforce. What,
you know, what they can do what they can't do." Really simple, you
know, it was... it went smoothly. We didn't have any issues. No
incidents whatsoever.
John:
And that's what we want, it to go smoothly.
Lynn:
Let me look over here for one sec.
John:
[inaudible] And because transparency is a very important part of
elections.
Officer Carter:
Absolutely. Absolutely. I agree.
John:
Voting is the secret process. Counting is a public process. Right now
in this country, okay, as we speak, 50 million people think that
Trump's election was stolen---and I know it wasn't. [inaudible] Right
now in this country, 64% of the people think our democracy is in
crisis. And that's a very dangerous situation. You know, the primaries
really bring out the far right, the far left and they get their
candidates and the Republican Party is splitting in half. You got the
MAGAs you've got the Republicans.
Officer Carter:
It's like a spectrum.
John:
It's really, really bizarre, and it's dangerous.
Lynn:
We're trying to navigate these shark infested waters by calming peop--
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May 14, 2022
-, we're like "Calm down." Yeah, because this is---
John:
You've been to the meetings with her. [Is] she disrespectful?
Officer Carter:
No. No.
John:
Would you say that she's a good citizen—
Lynn:
No, but it's not up to her and she's doing her due diligence.
John:
I know that, but I'm just trying---
Lynn:
I know, I know. I get it. I get it.
John:
[inaudible] that's our role, to practice that civility. But at a
certain point, sometimes we do have to stand up and I said, Well, you
know, I'm... this is a public meeting. You just can't write a piece of
paper and ban me. Okay, so please arrest me, and have the media and
everybody there. And if anyone else gets arrested, they we do the same
thing---
Lynn:
And the problem---
John:
That's how we change things sometimes.
Lynn:
And that way that might have to happen.
John:
And what you're doing is great too. I mean, hey, you know, you've got
a job and all I know is, is that I do five things: you know, I
investigate. I educate. A little bit of agitation, respectfully. And
then before I say I'm going to file a writ of mandamus or do some kind
of an act and want to say, hey, this country when we disagree, we pick
an arbitrator. I'm gonna have to go ahead get my lawyer and he'll be
54/66
May 14, 2022
here, okay? It's how we preserve our rights. It'll be done with class.
I can promise you that.
Officer Carter:
Okay.
Lynn:
We don't...yeah.
John:
We'll all be proud. And hopefully we'll build a better system after
this.
Officer Carter:
Okay.
John:
See what I'm saying? Thank you for your time.
Officer Carter:
You're very welcome. You're very welcome.
Lynn:
I'm glad to hear you're willing to learn about the process more. So if
you go to Transparent----
John:
I'm not saying we're doing this, but this is how I think. I've been a
life-long activist. I was trained by Abby Hoffman, okay? I'm 68 years
old. I've been doing this all my life. Except I had to raise a family
for a while, [inaudible] real job, and when the kids grew up I was
back out here doing it again. I've been doing this for 18 years.
Before that I ran a big organization out of Mexico, it was an
environmental group. And then I discovered, in 2004, that the voting
database that they were using in my community was the same database I
did and I knew the back door and I knew how to go in and change the
whole thing and I was free. Okay, and then I was a cluster cap
[inaudible] they had for precincts I couldn't believe I was fighting
the religious right [inaudible]. And what they were doing---
suppressing I mean it was uh... it's a funny business, elections.
Officer Carter:
Well, democracy is different. It's....
55/66
May 14, 2022
Lynn:
Yeah.
John:
Important part. Absolutely.
Officer Carter:
Absolutely.
Lynn:
But if you want to learn more...yeah, and...um, if you want to learn
more about----
John:
[inaudible] either. We want, you know---I got a bill passing in
Arizona right now, that would make Arizona's elections transparent,
trackable, publicly verified with a ballot library, you know, these
machines here don't count the ballot, they count the pictures. It's a
good system. I like ES&S, one of my favorites, okay? And the 850s.
They could put the inkjet in and marry the ballot to the image. They
could produce those images publicly, to the public and let them add
them up.
Lynn:
They do that in other places.
John:
We need to go ahead and prove to people that elections are real. We've
passed the Rubicon in this country.
Lynn:
Yeah, we're trying to avoid a civil war.
John:
The MAGAs, who are really, in my opinion, a bunch of grifters---
Lynn:
But, they have a right, they have a right to ask questions.
John:
They do, but the point I'm trying to say is: not the right to scream
"fire" in a theater.
Lynn:
56/66
May 14, 2022
Sure, absolutely. You're right.
John:
You can't do that.
Lynn:
Correct.
John:
And they cannot go ahead and hide behind info-commercials and other
things that I see them do [inaudible] be responsible. It is awful to
say, ‘I know that every Trump vote for Biden got a 1.3 and Trump got a
point seven’. It was all a lie. And they scammed $9 million out of
Arizona.
Lynn:
[laughs] I think she's gotta go, but---
John:
[inaudible] guys are raising money.
Lynn:
I want to say if you want to learn more about North Carolina,
specific---
Officer Carter:
I do.
John:
[inaudible] videos. See, I'm a very civil guy. And I'm not accusing
anybody of rigging anything, I am not.
Officer Carter:
I've dealt with enough people in my lifetime...to be able to discern,
you know...people that are civil people that are, you know...
John:
Thank you. [Inaudible] officers I like to work with.
Officer Carter:
Well, yeah.
Lynn:
So I don't I don't have my card, I ran out, but if you go to
57/66
May 14, 2022
TransparentNC.org Actually...
John:
She help pass the bill in Arizona too, by the way.
Lynn:
I uh, I put all that information on there. And you'll see on that
website, one of the fir---I tell people, Hey, you can come to this
meeting and the first thing I put on there, big print: Do. Not.
Disrupt. This. Meeting. If you go to a polling place on election night
and you want to see a poll tape, bring this form, bring this copy of
the law, if they don't let you in. Do. not. push back! Fill out this
affidavit form that I've...you print out, and we'll file a formal
complaint through the proper channels. Do not try to push your way in.
Do not try to----
John:
[inaudible]
Officer Carter:
I have experienced way too many riots and you know, just when the
riots happened years ago, you know, it's not just, I believe in
peaceful protesting. I believe that there comes a you know, there's a
lot of Intel. Yeah, there was a whole lot more going on than just
peaceful protesting. You know, and... But I do appreciate what you
guys do.
John:
Thank you, and we appreciate what you do.
Officer Carter:
Well, thank you. I appreciate that.
Lynn:
Yeah.
Officer Carter:
So, um, this is not a retaliation. I don't want you to believe that my
behavior is retaliatory.
Lynn: I understand. I understand. Not at all. You're doing your job.

You're doing your due diligence, I get it.
John:
58/66
May 14, 2022
If we push it farther, we'll take it to court, and that's how it's

supposed to be handled. That's how the American system works, okay---
Lynn:
Yup, we got it.
Officer Carter:
It was a pleasure meeting you guys.
Lynn:
Yeah, thank you. I'm a little sweaty because I've never even had...
I've never had a police officer give me a paper other than that one
ticket. I'm a little nervous [laughs].
Officer Carter:
Don't worry. It will be okay.
John:
I sued the Secretary of State in Arizona. We were friends, you know.
And at the end, we hugged each other - let’s not make it personal.
Lynn:
Yeah.
John:
[inaudible] but I can't do that. Because I have to sign the manifest,
because the law says "shall", and you know, if it says shall - you
shall! You took an oath to the Constitution.
Officer Carter:
There is no...
John:
She had no choice, but she was with me. [inaudible] I did. And we
worked together---a lot of times I do that with election officials.
[inaudible] transparent. That's the solution: transparency.
Lynn:
Yeah.
Officer Carter:
All right. Well---
John:
59/66
May 14, 2022
Whether we fight these people who say that uh.. you know that they had
2000 mules running around the country, and they were, you know,
stuffing, uh... dropboxes. You know I did a radio show before I got
here on Friday morning. And the guy says ‘I saw this movie, 2000
Mules, and I says, you know, "That's interesting. So they have people
just going to drop boxes, dopping, yeah? Well, I know I have one at
my... front of my house, right now. They go, "what?!"....yeah, my
mailbox. Next Tuesday, we're having a small election or a bond
election, okay. And I dropped my ballot in my own personal ballot
box...my mailbox!
Lynn:
[laughs] it sort...it sort of blows the whole theory of this whole
movie, of like, people stuffing these... ballot boxes---
John:
[inaudible] It’s the craziest movie [inaudible] ten million over the
weekend feeding this crap out to people. [inaudible] This is the kind
of stuff that makes them more suspicious. Anyways [inaudible]
Lynn:
Yeah, because I mean, that's the bad thing is that
John:
[inaudible] the party should be able to say, John Brakey is a
respectable guy. We know because background check, and he just wants
to know the rules to make sure he follows, [inaudible] the right time
to ask questions. After 18 years of doing this, I've got a pretty good
knack---[inaudible]
Officer Carter:
[laughs]
Lynn:
So I do want to ask---
John:
[inaudible] The first time I came here was 2019. And that was, I went
down to the tri counties where they have you know, you got Indians,
uh, people of color, and then white and it was [inaudible], I never
knew what that was until, like, until I got and that's where the
ballot harvesting was going on, and I was interested in finding out
about that. Plus, uh, North Carolina being a swing state [inaudible].
Thank you for your time.
60/66
May 14, 2022
Lynn:
Yeah, thank you. And so I just want to make sure we're gonna get an
answer of where we can stand on election night.
Officer Carter:
So, I will tell you, that----
Lynn:
Yeah.
Officer Carter:
because it's not just election night. Yep.
Lynn:
Yeah.
Officer Hoock:
Up till seven o'clock and the officer that relieves me, I can just let
them... let them know as well. Um, that we'll have a clear, definitive
answer as to where individuals can observe---
Lynn:
Right.
Officer Hoock:
Because that's basically what you're asking, right?
Lynn:
I am because, I know that... I know that... already probably about 20
people were planning on coming. And now, the fact that I'm going to be
banned from this meeting on on Tuesday at two o'clock, that means
probably 100 people are going to show up, because I'm a big activist
and known throughout the party, so I don't want... I don't want... I
don't want to tell people the wrong thing and and make your guys lives
more difficult. I mean, that's really I don't want to---
John:
Give Gary my card.
Officer Carter:
I will. I will.
John::
61/66
May 14, 2022
And let him know that we don't need to do all this. We need to all get
along, okay? We just want to know the rules. And, and if the laws says
that you're appointed by the party, you have observational can---
whatever the law is. And if we don't like the law, then we have to go
out and change the law.
Officer Carter:
Right.
Lynn:
Alright, we should get back.
John:
Yeah we do. Thank you so much. Your name again?
Officer Carter:
Janice Carter.
Lynn:
Janice Carter. Thank you.
62/66
WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. )
)
ELECTIONS, )
)
Defendants. )
______________________________________ )
Exhibit No. 13
(Recording of First 911 Call, 5/14/2022)

Ex. 14
911 Call #1 Transcript
May 14, 2022
(Redacted)
automated voice tagging 0:00

May 14 2022 16 hours, 40 minutes 55 seconds.
911 Operator 0:09

Raleigh Wake Dispatch.
Officer Carter 0:12

Yes. Hi, this is Officer [redacted] at the Board of Elections. I'm
calling in reference to a suspicious vehicle. Um. I'm calling at
the... of the... with the... um. on the order of… from the director
from the board of elections.
911 Operator 0:30

[interrupting] What's the address?
Officer Carter 0:30

It's 1200 New... North New Hope.
Officer Carter 0:35

The vehicle is a blue ---
911 Operator 0:37

[inaudible]
Officer Carter 0:37

---I know
911 Operator 0:38

[inaudible] the address---repeat the location and make sure I have it
correct.
Officer Carter 0:43

The Board of Elections.
911 Operator 0:45

No, the address. Repeat the address.
Officer Carter 0:48

1200
911 Operator 0:50

Okay, and tell me your name, again.
Officer Carter 0:51

1200 North New Hope. Officer [redacted]. I'm an off-duty police
1/4
May 14, 2022
officer.
911 Operator 0:56

And what’s the phone number you’re calling me from?
Officer Carter 0:58

This is my personal cell.
911 Operator 1:01

Okay, and it's a blue what?
Officer Carter 1:04

It is a blue Subaru SUV. It's located in the ABC Supply Company
parking lot...Um, today is the last day for elections, and these
people are very familiar with them. And they have gone from across the
street from sitting there and watching us, to um, this um, parking
lot over here at ABC. It's a private...
911 Operator 1:42

What do the people look like, that are in the car?
Officer Carter 1:45

So two. So one is a white female, she has a blue shirt on and the
other person is a white male, he has a black shirt on.
Officer Carter 1:55

And they're just watching the board of elections?
Officer Carter 1:58

They're watching the whole process. So... and. and recording it.
So...er the director asked me to call and state that it's a suspicious
activity.
911 Operator 2:12

I mean, what is it the Board of Elections for? Like, the politics or
like the school board or what?
Officer Carter 2:19

The Board of Elections is in control of the...elections. So the
elections for the sheriff, the election for the commissioner, the
election for the US Senate...
911 Operator 2:28
Okay, so politics. Okay. And are you the security officer or are you
an off duty officer or...?
2/4
May 14, 2022
Officer Carter 2:36

I'm the off duty officer. [inaudible]--- police officer.
911 Operator 2:38

Okay.
911 Operator 2:41

Okay. All right. I'll get the officer to go out there to 1200 North
New Hope Road. And you said they've switched back and forth across the
road recording this?
911 Operator 2:51

Yeah. So they were across the street at West Shore Homes...in that
parking lot. And...oh, it looks like they're walking across the street
now. Back over there. So their vehicle is in the ABC supply parking
lot right next to the fence. And they've left the vehicle and are
walking back across the street.
911 Operator 3:17

And they're still recording everything?
Officer Carter 3:22

Um. The man has his cell phone out.
Officer Carter 3:31

His...I assume it's an iPad..., and he's got it pointing towards us.
Yeah, he's taking pictures of us right now. So...
911 Operator 3:42

Okay.
911 Operator 3:44

Are they talking to each other or saying anything?
Officer Carter 3:48

Oh yeah. They're talking to...they're clearly together.
911 Operator 3:51

Okay.
Officer Carter 3:56

So. These...the director has had issues with these people before and
there isn't legal for them to come over and start filming, what
they're doing here, at the board of elections.
3/4
May 14, 2022
911 Operator 4:08

Does he know who they are?
Officer Carter 4:11

Yes.
Officer Carter 4:12

What's their names?
Officer Carter 4:14

The female’s name is [redacted, inaudible]. ...do you know who the
male is? No?
Gary Sims 4:17

I’ve seen him… it’s her neighbor... I've seen him but not [inaudible]
Officer Carter 4:21

The male is unidentified right now.
911 Operator 4:24

Okay.
911 Operator 4:32

Okay, I'll let the officers know, okay?
Officer Carter 4:36

Okay, thank you so much.
911 Operator 4:37

Thanks.
Officer Carter 4:37

Uh-huh. Bye-bye

May 14th 2022 16 hours, 45 minutes. 51 seconds.
4/4
WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. )
)
ELECTIONS, )
)
Defendants. )
______________________________________ )
Exhibit No. 15
(Recording of Second 911 Call, 5/14/2022)

May 14, 2022
Ex. 16
(Redacted)

May 14 2022 17 hours, 4 minutes, 56 seconds.
911 Operator 0:08

Raleigh Wake Dispatch.
Unknown Speaker 0:10

Yes. Hi, this is officer [redacted] 1200 North New Hope...at the Board
of Elections. I had called earlier for a suspicious vehicle. Um, the
two individuals that were here...
Officer Carter 0:24

In the vehicle...have now...they’ve now left the vehicle and they’ve
started to tamper with the gate... that is closed. So I didn't know if
that would escalate, um, the priority for the call. So they're
attempting to get in by tampering with the gate. And, that is...Wake
County has it on video as well.
911 Operator 0:51

All right, and hang on one second. I'm just trying to read everything
that happened. And it is a white male and a white female, correct?
Officer Carter 0:59

That's correct.
911 Operator 1:00

Okay.
Officer Carter 1:02

And they have moved to the ABC Lumber Supply, which is right next
door, and they're literally watching me speak to you guys. So...
911 Operator 1:11

Okay.
Officer Carter 1:12

Um...
911 Operator 1:15

All right. And what is the name of the of the business?
Officer Carter 1:19

That they're at right now is ABC Lumber or ABC Supply.
unknown 1:23
1/2
May 14, 2022
[inaudible]
unknown 1:28
[laughing] yeah!
911 Operator 1:28

Ok. Alight, I will go ahead and update that, um, comments to the call
to let the officers know.
Officer Carter 1:32

And then...
911 Operator 1:34

We do already have an officer driving there. Okay?
Officer Carter 1:35

Perfect. And we would like... the director would like to trespass both
of them formally...off this property.
911 Operator 1:36

Alright, and I will go ahead and let him know that as well.
Officer Carter 1:46

Thank you ma'am, I appreciate it.
911 Operator 1:47

You're welcome. Bye.
Officer Carter 1:49

Alright, bye-bye.

May 14 2022 17 hours, 6 minutes 44 seconds.
2/2
Exhibit B
WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. ) DECLARATION OF
) NICHOLAS BERNSTEIN, PH.D.
ELECTIONS, )
)
Defendants. )
______________________________________ )
Pursuant to 28 U.S.C. § 1746, Nicholas Bernstein hereby declares under
penalty of perjury as follows:
1. My name is Nicholas Bernstein. I am over the age of 18 and am
suffering from no impairment or disability that prevents me from making this
declaration. I am competent to testify to the facts stated herein, all of which
are based on personal knowledge. All of the below statements are true and
accurate to the best of my knowledge, information, and belief.
2. I am a citizen of Wake County, North Carolina. I live in Cary with
my wife, Lynn, and minor children.
3. I hold a Ph.D. in Aerospace Engineering from the University of
Colorado Boulder.

4. When my wife, Lynn, was trespassed by Defendant Gary Sims on
May 14, 2022, it was clear I would need to go to the Wake County Board of
Elections to advocate for her because she would be arrested if she went onto
BOE property and attended a BOE meeting to speak on her own behalf.
5. On May 16, 2022, the Wake County BOE held a public meeting. I
attended and, during the public comments portion of the meeting, attempted,
in a calm and professional manner, to address the Board concerning the events
of the prior Saturday and ask that the banning of my wife from BOE property
be rescinded. Even though each speaker was supposed to be allotted two
minutes to speak, the Board permitted me less than two minutes to speak
before someone directed a sheriff’s deputy to remove me from the meeting.
There was no justification for removing me from the building, but I
nevertheless complied.
6. I am submitting with this declaration several exhibits related to
those proceedings, all of which are true and accurate depictions of the events,
I experienced:
 Exhibit 17 is a video recording of my comments to the Board of
Elections given on that Date;
 Exhibit 18 is a video showing me being escorted out of the Board of
Elections on the same day;

 Exhibit 19 is an audio recording of my comments to the Board on
that date; and
 Exhibit 20 is the transcript of my public comments on the same date.
7. I addressed the Board on May 17 and May 26, 2022, as well
concerning the ban on my wife, all to no avail. Our 14-year-old daughter also
submitted a written statement to the Board asking that the ban be lifted, and
this likewise had no effect. A true and accurate copy of our daughter’s letter is
attached as Exhibit 21. True and accurate transcripts of my comments on
May 17 and May 26 are attached as Exhibit 22 and Exhibit 23, respectively.
8. I know that this ban is negatively affecting my wife and the
advocacy efforts she has spent years pursing. She is also fearful of voting in
person and was worried about being charged with criminal trespass after she
voted in person in the first primary of 2022, held a few days after the trespass
notice was verbally issued.
9. My wife is in no way a violent or threatening individual. She has
never threatened violence against anyone and has never disrupted the meeting
of any governing body. She has never been arrested and has no criminal
record. All of her advocacy is peaceful and civil and uses only lawful methods.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury
that the foregoing is true and correct.
Executed on September 19, 2022.
_____________________
Nicholas Bernstein

WESTERN DIVISION
LYNN BERNSTEIN, )
)
Plaintiff, )
)
v. )
)
ELECTIONS, )
)
Defendants. )
______________________________________ )
Exhibit Nos. 17-19

(Audio/Video Recordings of Nick Bernstein at
Wake County Board of Elections)
Each of the above exhibits is an audio or video recording for which electronic
filing on CM/ECF is not possible. Pursuant to Section V.A of the Electronic
Case Filing Administrative Policies and Procedures Manual, leave to file these
exhibits manually will be sought, and a copy of a USB drive with said exhibit
will be submitted to the Clerk of Court in conjunction with a motion for manual
filing.

Ex. 20
2022 MAY 16 Wake BOE
Dr. Nicholas Bernstein comments transcribed
Erica Porter: We love hearing comments from the public, so if you have
anything, this is your time. You have two minutes, as I said, and we
are here to listen.
Nicholas Bernstein: Hi, my name is Nick Bernstein. I've made comments

here before, but you will certainly know my wife, Lynn Bernstein.
She's been coming to these meetings for several years. Her goal has
always been to ensure that Wake County conducts fair and transparent
elections. She has volunteered her time and engineering expertise to
help discreetly identify potential problems in the election process
and to educate people about how elections work. Our democracy depends
on supporters of the losing candidate, believing in the integrity of
the election. That starts with a process that is open to the... as
open to the public as possible. For two years she has asked the board
and the election director where observers should stand on election
night to observe county-wide election processes as guaranteed by law,
so as not to interfere with election workers. For two years she has
been told that Wake County doesn't follow that law ---unlike the 99
other counties in North Carolina. So she came to this location on
Saturday afternoon with John Brakey, the nationally known nonpartisan
observer who oversaw the Arizona [audit, looking for an] election
night observing location that was outside the BOE building. Instead,
your election director Gary Sims called 911 and had formal trespassing
charges levied against both of them. The officer involved has
explained that if either of them step foot onto this property ever
again, Mr. Sims will have them arrested. This is the second time Mr.
Sims has made such a threat against my wife, which leads me to wonder
why he's so fearful of public oversight. Mr. Sims is supposed to be
acting on the board's behalf and their direction. No one on this board
can seriously believe that either of those two dedicated
[beeping begins] at 1:52 sec
NB: public servants intended to interfere with the election. The

easiest and
unknown: Thank you, your two minutes are up.
NB: least embarrassing resolution for this board is that
EP: Your two minutes are up.
unknown: Sir, your time is up!
NB: this bogus trespassing charge reversed by a vote of the board. I'm
1/2
asking you
unknown: [inaudible]
unknown: This is exactly what we were just talking about.
NB: any of you to call for the vote today. A Failure to do so

indicates that you endorse the
unknown: [inaudible]
NB: heavy-handed infringement of civil rights...
Officer Carter: Sir?
NB: Yes.
OC: [inaudible]
NB: Um, you may.
Officer Carter: Okay.
NB: (addressing the board): You are
OC: Right now.
NB: infringing on the rights of individuals to observe this election.
2/2
Ex. 21
Hello, my name is S B and I am here on my behalf, as
well as the behalf of my mother, Lynn Bernstein, who was banned from this
premises under the accusation of trespassing, even though she did not, nor
had any intentions of doing so. I come bearing a simple query, what do you
value more as representatives of this county’s voters? The requests and
carefully constructed input of the people you took an oath to and represent,
or the mere seconds that are taken from the hardworking citizens of our
community? As a student at Wake Young Women’s Leadership Academy, I
have learned a thing or two about leadership and representing any
community. Just yesterday on May 16, my father was escorted out of this
building and asked to leave after he went over your assigned two minutes
by 24 seconds. At my school I have learned that to be a leader is to be a
listener, your actions are a collection of every person you represent. If you
do not compile the ideas of those you represent alongside your own, you
are not representing, you are controlling those who trusted you while
neglecting to value their ideas. Do you know what it means to be a part of a
community? It means, the value of the sum is greater than that of the
individual. By yelling over the ideas of an individual, the voice you diminish
is your own. By not listening to an individual, the whole community will go
deaf. By hiding the individuals from each other, you have blinded the
community. If you limit our time, you only limit your community, your power,
and yourself. This is to say I request that you consider the value of our
ideas over your idea of our value.
Thank you for your time

Ex. 22
Nicholas Bernstein: I am concerned that yesterday, in the chaos

of interrupting me 1 minute and 52 seconds into my two minute
prepared public comment, you may have missed the point of my
statement. Allow me to reiterate.
Your Election Director has banned my wife, Lynn Bernstein, from
entering this building. He has twice threatened to arrest her,
because she wants to witness the countywide vote count – a right
that is guaranteed by NC GS 163-182.2[(a)(3)].
Why would he do that?
I don’t think it’s personal. After all, the first time he made
that threat, he hardly knew her and he has threatened other
observers as well for doing their jobs. The most logical answer
is because he doesn’t want oversight from anyone and I get it.
Because oversight is not fun. It’s embarrassing when other
people identify the problems that you have missed, or even the
problems that you have caused inadvertently - for whatever
reason.
But when the outcome is so important, you swallow your pride and
you acknowledge that the election processes are not always
executed perfectly. More oversight means more safety and greater
public confidence.
Also, Lynn has been very discreet when pointing out significant
problems. She gave Wake County time to stop processing absentee
ballots illegally before bringing it to the attention of the
State Board.
I am less patient and I am less discreet. Perhaps the Board
would like to vote on allowing her to come back and make public
comments herself or – at least discuss it.
On a different note, I’m glad to hear that
timer begins beeping at 1 min 53 seconds (cut short)
Attachment A5 1/1

Dr. Nicholas Bernstein comments transcribed Ex. 23
Hello, I'm Nick Bernstein. Since May 14th, when Gary Sims had trespass
forms issued to my wife and John Brakey, I've had some reason to
research North Carolina trespassing laws. And here's what I've
learned: The trespass form they received is not a citation. It does
not imply any wrongdoing. So it can't be legally contested. It's
simply a notification that a person in charge of a property doesn't
want you there. If you show up on that property after being notified,
you may be charged with second degree trespass as defined in General
Statute 14-159.13. It is punishable by a $200 fine and up to 20 days
in jail. Issuing a trespass form is a pre-emptive action. There
doesn't need to be a reason. It could just be because the issuer
doesn't like you or your kind of people. It's the legal equivalent of
handing out business cards with "You are not welcome here!" written on
them. It's for that reason that it's not usually used in public
buildings because it can seem discriminatory.
If Mr. Simms is actually accusing my wife of doing something improper,

he should come out and say it publicly. The confidence and Election
Act is supposed to guard against corruption by providing opportunities
for the public...for public observation at any level.
A county election director who unilaterally vanquishes keen-eyed

observers violates the spirit of that law. Neither...note that neither
the police nor officer Carter have the authority to issue a trespass
form; it must come from the owner, leasee, or other person in charge.
Did the board know that Mr. Simms was using this authority arguably
abusing this authority?
[timer beeping]
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Bernstein v. Sims, Memo in Support of Motion For Preliminary Injunction

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Bernstein v. Sims, Memo in Support of Motion For Preliminary Injunction

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

Plaintiff Lynn Bernstein submits this memorandum of law in support of

her contemporaneously filed motion for preliminary injunction.

NATURE OF THE CASE

Plaintiff Lynn Bernstein, a citizen of Wake County and longtime

to vindicate her constitutional rights, in particular her First Amendment

her right to due process of law.

Defendants Wake County Board of Elections and its Director deprived

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 1 of 37

preliminary injunction to relieve her of the ongoing deprivation of her

fundamental constitutional rights.

Even though it recently constructed a large observation area for the

Lynn Bernstein Decl. ¶ 9.) Ms. Bernstein, founder of Transparent Elections

at any level shall be allowed to do so.”), and moreover constitutes unsound

1 Ms. Bernstein, who holds a B.S. in Aerospace Engineering, is also a trained

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 2 of 37

become more transparent. (Id. ¶¶ 5-7, 9.)

To raise public awareness of the BOE’s practice of excluding the public

from observations, Ms. Bernstein decided to stage a peaceful, lawful protest

Brakey. (Id.) Mr. Brakey is a nationally known expert in election integrity

appear to be a leftover sign from early voting. (Id.) Instead, it indicated an

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 3 of 37

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 4 of 37

acknowledge Mr. Brakey’s presence. (Id.)

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 5 of 37

they moved away from the gate. (Id.)

which is documented on County surveillance video. (Id. ¶ 19.) Videos showing

as Exhibits 7 through 10. (Id. ¶ 20 at Exs. 7-10.) Based on video evidence

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 6 of 37

they be formally “trespassed.” (Id. ¶ 25.) The officers completed paperwork to

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 7 of 37

manager” of the establishment remove it. (Id.)

B: Nicholas Bernstein Decl. ¶ 5.) Ms. Bernstein’s husband attempted, in a

calm and professional manner captured in an audio recording, to address the

supposed to be allotted two minutes to speak, the Board permitted Ms.

sheriff’s deputy to remove him from the meeting. (Id. ¶ 5.)

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 8 of 37

to revoke, suspend, or otherwise modify the permanent and indefinite ban on

30.) Ms. Bernstein’s husband returned to speak at two subsequent Board

suspend, or otherwise modify the permanent ban on Ms. Bernstein. (Nicholas

Bernstein Decl. ¶¶ 6-7.)

The ban on Ms. Bernstein continues to be in effect and is a permanent

the Board’s control as a polling place. (Id. ¶ 32.) In light of Defendants’

much harassment and detriment to her rights as possible. (Id. ¶ 32.)

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 9 of 37

take poll worker training, work as a poll worker, be a political election

observer, return voter registration forms following registration drives, or even

participate and comment remotely. (Id. ¶ 33.)

Ms. Bernstein cannot even vote in-person early or in-person on election

Importantly, in-person voting on election day is the only method of voting

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 10 of 37

they are not secret ballots. (Id.)

remain unfulfilled to this day even after multiple requests. (Id.)

A preliminary injunction is needed to prohibit enforcement of

Defendants’ ban because it impermissibly interferes with Ms. Bernstein’s

ability to engage in effective public advocacy on behalf of herself and her

Plaintiffs seeking a preliminary injunction under Fed. R. Civ. P. 65(a)

plaintiffs seeking preliminary injunctions must demonstrate that they are

Case 5:22-cv-00277-BO-KS Document 14 Filed 09/20/22 Page 11 of 37

307, 321 (4th Cir. 2013)).

When the government bears the burden of proof on an issue, as in a

challenge under the First Amendment, “the burdens at the preliminary