STATE OF NORTH CA ROLINA

FI LEDIN TH E GENERAL COURT OF JUST ICE
.SUPERIOR COU RT DIVISION

ZOZO JUN ~ •P I: 2L

COUNT Y OF WAK E

WA i( E C . , . . . C.

No. 19-cv - 15941

B'{~
COMMUNITY SUCCESS INITIATIVE, et al.,

Plaintiffs ,
V.

TIMOTHY K. MOORE, IN HIS OFFICIAL
CAPACITY OF SPEAKER OF THE NORTH
CAROLINA HOUSE OF
REPRESENTATIVES, et al.,
Defendants.

PLAINTIFFS' MOTION TO
ESTABLISH A THREE-JUDGE PANEL

 INTRODUCTION
Plaintiffs respectfully move for the establishment of a three-judge panel pursuant to
N.C.G.S. § 1-267.1. In November 2019, Plaintiffs filed this action asserting facial constitutional
challenges to North Carolina’s felony disenfranchisement statute, N.C. Gen. Stat. § 13-1. In
January 2020, all Defendants agreed that this case was “fit and ready” for appointment of a
three-judge panel. On May 11, 2020, Plaintiffs filed a motion for summary judgment or in the
alternative a preliminary injunction, seeking an injunction that would restore voting rights to
roughly 60,000 people living in North Carolina communities for the November 3, 2020 general
election. Plaintiffs’ motion for summary judgment or a preliminary injunction is time-sensitive:
if Plaintiffs prevail, these citizens must register to vote before the November election, the State
Board Defendants must update their protocols, and the organizational Plaintiffs must conduct
outreach to currently disenfranchised citizens about their right to vote. Any further delay in
establishing a three-judge panel to adjudicate this case will irreparably prejudice Plaintiffs and
tens of thousands of other North Carolinians with respect to their constitutional rights.
The current spotlight on racial inequities in the criminal justice system powerfully
underscores the need to promptly establish a three-judge panel in this case. Indeed, the lack of a
panel to adjudicate Plaintiffs’ claims nearly seven months after this case was filed only
exacerbates the perception that the justice system does not take seriously alleged violations of the
constitutional rights of African Americans in North Carolina. As detailed in Plaintiffs’ motion
for summary judgment or a preliminary injunction, North Carolina’s felony disenfranchisement
law is the product of an explicitly racist effort after the Civil War to suppress the political power
of African Americans, and the law continues to have its intended effect to this day. Although
African Americans constitute 21.51% of North Carolina’s voting-age population, they represent
1

 42.43% of the people disenfranchised due to probation, parole, or post-release supervision.
North Carolina’s disenfranchisement scheme continues to have this racially discriminatory
impact because, as this State’s leaders have acknowledged in recent days, North Carolina
continues to have a two-tiered system of criminal justice in which “African-Americans are more
harshly treated, more severely punished and more likely to be presumed guilty.”
https://twitter.com/JusticeCBeasley/status/1267846844186603522; see also Statement from
Attorney General Josh Stein: George Floyd, https://ncdoj.gov/statement-from-attorney-generaljosh-stein-george-floyd (noting “systemic racism” in the “criminal justice system”). The grossly
disproportionate disenfranchisement of African Americans resulting from these biases in the
criminal justice system creates a vicious feedback loop that stymies the ability of African
Americans to effect change. And disenfranchisement does more than just minimize the political
power of African American communities in North Carolina; for many African Americans, “the
devaluation of their lives” (see Stein statement) includes stripping them of the most fundamental
attribute of citizenship, the right to vote. North Carolina’s African American communities can
wait no longer. Justice delayed will be justice denied in this case.
BACKGROUND
Plaintiffs filed the Complaint in this action on November 20, 2019, raising facial
constitutional challenges to N.C. Gen. Stat. § 13-1, which denies the right to vote to individuals
who are on probation, parole, or post-release supervision following a felony conviction.
Defendants are the Speaker of the North Carolina House of Representatives and the President
Pro Tempore of the North Carolina Senate (together, “Legislative Defendants”), and the State
Board of Elections and its members (collectively, “State Board Defendants”).

2

 On the same day they filed their Complaint, Plaintiffs also filed a motion for an expedited
scheduling order and case management order (“Motion to Expedite”). See Ex. B. The Motion to
Expedite sought a case schedule that would ensure this case was resolved sufficiently in advance
of the November 2020 elections so that tens of thousands of North Carolinians would not be
unlawfully deprived of the right to vote in another election if Plaintiffs prevailed on their claims.
Plaintiffs subsequently calendered the Motion to Expedite for a hearing before a single judge on
February 4, 2020.
Plaintiffs filed an Amended Complaint on December 3, 2019, see Ex. A, and the State
Board Defendants and Legislative Defendants filed answers on January 16, 2020 and January 21,
2020, respectively, see Exs. C, D. Although both sets of Defendants initially filed motions to
dismiss the Amended Complaint, id., eight days later, on January 29, 2020, all Defendants
withdrew their motions to dismiss, see Exs. E, F.
Upon Defendants’ withdrawal of their motions to dismiss, all parties agreed that this case
met the criteria for appointment of a three-judge panel and that the case was “fit,” “ready,” and
“ripe” for the appointment of a panel. Ex. G at 2; see also Ex. H (1/29/20 email from P. Cox
stating that “the parties agree that the case is ready for assignment to a three-judge panel”). The
parties further agreed to seek a continuance of the February 4 hearing that had been scheduled on
Plaintiffs’ Motion to Expedite, because “the parties agree[d] that Plaintiffs’ Motion to Expedite
should be heard and decided by the three-judge panel that is appointed, rather than a single
judge.” Ex. G at 2. The Court granted the requested continuance, but Plaintiffs’ Motion to
Expedite still has not been heard because a three-judge panel has not yet been appointed.
On May 11, 2020, Plaintiffs filed a Motion for Summary Judgment or in the Alternative a
Preliminary Injunction. Ex. I. The motion seeks an injunction, either permanent or preliminary,
3

 barring enforcement of N.C.G.S. § 13-1’s disenfranchisement provisions with respect to
individuals living in North Carolina communities on probation, parole, or post-release
supervision. The motion is time-sensitive: Plaintiffs seek an injunction in time to restore the
right to vote for such disenfranchised persons before the November 2020 general election.
Contemporaneous with filing the motion for summary judgment or a preliminary
injunction, Plaintiffs submitted a letter to Judge Ridgeway renewing their request for
appointment of a three-judge panel to adjudicate this case. Ex. L. Plaintiffs had previously
submitted two letters requesting appointment of a panel, on November 20, 2019 and March 6,
2020. Exs. J, K. While Plaintiffs received a response to the initial letter from the Trial
Administrator indicating that a panel would not be appointed until after any jurisdictional
motions to dismiss were resolved, Plaintiffs have received no response to their two most recent
letters, which were submitted after both sets of Defendants withdrew their motions to dismiss
and consented to the appointment of a three-judge panel. Plaintiffs thus respectfully file the
instant motion.
ARGUMENT
I.

The Establishment of a Three-Judge Panel to President Over This Case is
Mandatory Under N.C.G.S. § 1-267.1
Defendants do not dispute that this case meets the criteria for the appointment of a three-

judge panel pursuant to N.C.G.S. § 1-267.1. See Exs. G, H. And for good reason: this suit
plainly meets the statute’s criteria.
N.C.G.S. § 1-267.1 provides for the appointment of a three-judge panel in any case
asserting a facial constitutional challenge to a North Carolina statute. Specifically, N.C.G.S. § 1267.1 provides, in relevant part:
4

 (a1)
Except as otherwise provided in subsection (a) of this section, any facial
challenge to the validity of an act of the General Assembly shall be transferred
pursuant to G.S. 1A-1, Rule 42(b)(4), to the Superior Court of Wake County and
shall be heard and determined by a three-judge panel of the Superior Court of
Wake County, organized as provided by subsection (b2) of this section.
(b1)
Any facial challenge to the validity of an act of the General Assembly
filed in the Superior Court of Wake County … shall be assigned by the senior
resident Superior Court Judge of Wake County to a three-judge panel established
pursuant to subsection (b2) of this section.
(b2)
For each challenge to the validity of statutes and acts subject to subsection
(a1) of this section, the Chief Justice of the Supreme Court shall appoint three
resident superior court judges to a three-judge panel of the Superior Court of
Wake County to hear the challenge.
N.C.G.S. §§ 1-267.1(a1), (b1), (b2). Thus, for facial constitutional challenges, the establishment
of a three-judge panel is mandatory several times over: the case “shall be heard and determined
by a three-judge panel of the Superior Court of Wake County”; the case “shall be assigned by the
senior resident Superior Court Judge of Wake County to a three-judge panel”; and the Chief
Justice of the Supreme Court “shall appoint three resident superior court judges.”
This lawsuit presents a “facial challenge to the validity of an act of the General
Assembly”—namely, N.C.G.S. § 13-1. Plaintiffs contend that, on its face, N.C.G.S. § 13-1
violates multiple provisions of the North Carolina Constitution by withholding the restoration of
voting rights from persons on “probation,” “parole,” or a “suspended sentence,” and from
persons who have received a conditional discharge (i.e., post-release supervision) from
incarceration in North Carolina or another state. N.C.G.S. §§ 13-1(1)-(5); see Ex. A (Am.
Compl.); Ex. I (Plaintiff’s motion for summary judgment or a preliminary injunction). The
establishment of a three-judge panel to adjudicate this case is thus mandatory under § 1-267.1.

5

 II.

The Prompt Appointment of a Panel Is Essential to Avoid Severe Prejudice and to
Protect the Constitutional Rights of 60,000 North Carolinians
Time is of the essence to establish a three-judge panel to adjudicate Plaintiffs’

constitutional claims. Plaintiffs commenced this action nearly seven months ago, on November
20, 2019, and it is been more than four months since both sets of Defendants withdrew their
motions to dismiss and agreed that the case was ready and fit for appointment of a panel. See
Exs. E, F, G. Plaintiffs have now filed a motion for summary judgment or a preliminary
injunction, seeking an injunction that would restore voting rights for persons on probation,
parole, or post-release supervision for the November 2020 general elections.
Any additional delay in establishing a three-judge panel risks imperiling Plaintiffs’ ability
to obtain the injunctive relief sought. Indeed, under Wake County Local Rule 14.4, preliminary
injunction motions must be “given priority over all other matters.” It is especially urgent that
this preliminary injunction motion be heard expeditiously because it concerns the fundamental
right to vote of roughly 60,000 individuals living in North Carolina communities who are
currently disenfranchised. “The right to vote is one of the most cherished rights in our system of
government.” Blankenship v. Bartlett, 363 N.C. 518, 522, 681 S.E.2d 759, 762 (2009). “No
right is more precious in a free country than that of having a voice in the election of those who
make the laws under which, as good citizens, we must live.” Id. (internal quotation marks
omitted).
Prompt appointment of a three-judge panel is necessary to ensure that, if Plaintiffs are
correct on the merits, roughly 60,000 North Carolinians—who are disproportionately African
American—are not unconstitutionally denied their right to vote in another election. Indeed,
while the general election is scheduled for November 3, 2020, Plaintiffs must obtain relief
6

 sufficiently in advance of that date to enable currently disenfranchised persons to vote in the
election. North Carolina’s deadline to register for the general election is October 9. And
extensive public education will be necessary to inform currently disenfranchised persons that
they have regained their right to vote, particularly given the confusion that exists under the
current law. Accordingly, prompt adjudication of the merits of this case is necessary to avoid
irreparably injuring tens of thousands of North Carolinians.
WHEREFORE, Plaintiffs request that this Court declare that a three-judge panel is
required for the adjudication of this case, and request that the Chief Justice of the Supreme Court
appoint members of the panel consistent with N.C.G.S. §§ 1-267.1.

Respectfully submitted this the 5th day of June, 2020.
FORWARD JUSTICE
ARNOLD & PORTER
KAYE SCHOLER LLP

_/s/Daryl Atkinson______________________
Daryl Atkinson (NC Bar # 39030)
Whitley Carpenter (NC Bar # 49657)
400 W Main St., Suite 203
Durham, NC 27701
daryl@forwardjustice.org

R. Stanton Jones*
Elisabeth S. Theodore*
Daniel F. Jacobson*
Graham White*
601 Massachusetts Ave. NW
Washington, DC 20001-3743
(202) 942-5000
stanton.jones@arnoldporter.com

Counsel for Plaintiffs

PROTECT DEMOCRACY PROJECT
Farbod K. Faraji*
77 Pearl Street
Middletown, CT 06459
(202) 579-4582
farbod.faraji@protectdemocracy.org

7

 Counsel for Plaintiffs

* Admitted pro hac vice
CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the foregoing to counsel for
Defendants via e-mail, addressed to the following persons at the following addresses which are
the last addresses known to me:
Brian D. Rabinovitz
114 W. Edenton St.
Raleigh, NC 27603
BRabinovitz@ncdoj.gov

Paul M. Cox
Olga Vysotskaya
114 W. Edenton St.
Raleigh, NC 27603
pcox@ncdoj.gov
OVysotskaya@ncdoj.gov

Counsel for Legislative Defendants

Counsel for State Board Defendants
This the 5th day of June, 2020.

/s/Daryl Atkinson
Daryl Atkinson (NC Bar # 39030)

8

 EXHIBIT A

STATE OF NORTH CAROLINA GENERAL COURT OF JUSTICE
COUNTY OF WAKE TUPERIOR COURT DIVISION

Docket NO. 19-cv-15941

y? z==i 52:, 

 

COMMUNITY SUCCESS I 
JUSTICE SERVED NC, WASH
AWAY NORTH
CAROLINA STATE CONFERENCE OF
THE TIMOTHY 
DRAKARUS SUSAN 
HENRY ASHLEY 
SHAKITA NORMAN,

Plaintiffs,
V.

TIMOTHY K. MOORE, IN HIS OFFICIAL
CAPACITY AS SPEAKER OF THE NORTH
CAROLINA HOUSE OF
PHILIP E. BERGER,
IN HIS OFFICIAL CAPACITY AS
PRESIDENT PRO TEMPORE OF THE
NORTH CAROLINA THE
NORTH CAROLINA STATE BOARD OF
DAMON CIRCOSTA, IN HIS
OFFICIAL CAPACITY AS CHAIRMAN OF
THE NORTH CAROLINA STATE BOARD
OF STELLA ANDERSON, IN
HER OFFICIAL CAPACITY AS
SECRETARY OF THE NORTH CAROLINA
STATE BOARD OF 
KENNETH RAYMOND, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE NORTH
CAROLINA STATE BOARD OF
JEFF CARMON, IN HIS
OFFICIAL CAPACITY AS MEMBER OF
THE NORTH CAROLINA STATE BOARD
OF DAVID C. BLACK, IN
HIS OFFICIAL CAPACITY AS MEMBER
OF THE NORTH CAROLINA STATE
BOARD OF ELECTIONS13:: in! 3&5? .7 .
. 

AMENDED COMPLAINT

 

 

US 167134072v2

 

Defendants.

 

 

US l67134072v2

Plaintiffs, complaining of Defendants, say and allege:
INTRODUCTION

1. The North Carolina Constitution guarantees free and fair elections, in which all
citizens have an equal voice in choosing their elected representatives. The right to vote is a
fundamental right in this state, and, like all fundamental rights, it may not be abridged absent a
compelling government interest. Yet, with no legitimate government interest, state law denies
the right to vote to tens of thousands of people living in North Carolina communities because
they have a prior felony conviction. These individuals are prohibited from voting until they are
?unconditionally discharged? from probation, parole, post-release supervision or a suspended
sentence?often years after their release from incarceration and reentry into society. In many
cases, the disenfranchisement persists solely because of a person?s inability to pay court costs,
fees, or restitution. In some instances, North Carolinians convicted of felonies are placed under
community supervision sentences by the court without incarceration; while they are
economically contributing to society, North Carolina law bars them from voting for the entirety
of their probationary period. These North Carolinians are neighbors, co-workers, family
members, taxpayers, and participants in civic groups. The same as all other citizens, their lives
are governed by the laws enacted and enforced by elected of?cials. But unlike their neighbors,
they are denied the fundamental right to participate in choosing their representatives. North
Carolina?s disenfranchisement of citizens living in our community based solely on a prior felony
conviction (?probation and post-release felony disenfranchisement?) serves no legitimate
government purpose. It is unfair, discriminatory, and wrong. And it violates the North Carolina

Constitution.

US 1671 34072v2

2. The impact of this disenfranchisement scheme is staggering. According to a
recent estimate, roughly 70,000 North Carolinians are unable to vote today because of a felony
conviction, even though they have been released from incarceration (or were never incarcerated)
and are living in communities across the state. And by wide margins, this scheme
disproportionately harms African Americans, who represent about 20% of North Carolina?s
voting population but 40% of those disenfranchised while on probation, parole, or a suspended
sentence. The impact on African-American men is even more disparate.

3. While the North Carolina Constitution provides that the ?manner? of rights
restoration shall be ?prescribed by law,? N.C. Const., Art. VI, 2, cl. 3, the General Assembly of
course must exercise this authority consistent with other constitutional limitations.

4. One such limitation is the North Carolina Constitution?s command that ?all
elections shall be free??a provision speci?cally intended to prohibit government manipulation
of the electorate. Probation and post-release felony disenfranchisement perniciously restricts the
eligible electorate in North Carolina. The felony-based disenfranchisement law strikes at the
heart of the Free Elections Clause?s guarantee that elections in North Carolina must ?freely and
honestly . . . ascertain . . . the will of the people.? Common Cause Lewis, No. 18 CVS 014001,
2019 WL 4569584, at *109-12 (N.C. Super. Sep. 03, 2019).

5. North Carolina?s Equal Protection Clause, which affords broader protections than
its federal counterpart, protects ?the fundamental right of each North Carolinian to substantially
equal voting power.? Stephenson v. Bartlett, 355 NC. 354, 379, 562 377, 394 (N .C.
2002). North Carolina?s probation and post-release felony disenfranchisement scheme deprives
all people subject to probation, parole and post-release supervision of ?substantially equal voting

power,? and particularly discriminates against African Americans in intent and effect.

US l67l34072v2

6. This State?s free speech and assembly guarantees likewise provide broader
protections than their federal counterparts, and ?[v]oting for the candidate of one?s choice? is a
?core means of political expression protected by the North Carolina Constitution?s Freedom of
Speech and Freedom of Assembly Clauses.? Common Cause, 2019 WL 4569584, at *119.
Probation and post?release disenfranchisement constitutes an outright ban on such political
expression.

7. Lastly, the requirement that people pay money to regain access to the franchise
violates the North Carolina Constitution?s Ban on Property Quali?cations.

8. This Court should declare that North Carolina?s probation and post-release felony
disenfranchisement law violates the North Carolina Constitution, and enjoin Defendants from
denying the fundamental right to vote to people previously convicted of a felony who are living
in society.

PARTIES

9. Plaintiff Community Success Initiative is a nonpartisan, nonpro?t
organization based in Raleigh, North Carolina that works with people who ?nd themselves
entangled in the criminal justice system and their families as they transition back into family and
community life. The fundamental mission of CSI is to create a support network for people
entangled in the criminal justice system. To that end, CSI works to ensure that people with
felony convictions, including those who remain disenfranchised under North Carolina?s
probation and post-release felony disenfranchisement law, N.C.G.S. 13-1, can successfully
reintegrate into civic life. CSI provides small group trainings and individual mentoring in
general life skills, civic engagement, leadership, entrepreneurship, and ?nancial literacy.
Through these training and mentorship sessions, CSI diverts time and resources away from its

other work to educate people, including people disenfranchised under N.C.G.S. 13-1, about
3

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their voting rights (or lack thereof), and assists them in registering to vote (in accordance with
current North Carolina law). CSI also convenes gatherings where citizens with felony
convictions can network, share experiences, and exchange knowledge and resources.

10. Plaintiff Justice Served N.C., Inc. is a nonpartisan, nonpro?t organization based in
Raleigh, North Carolina that works with people who ?nd themselves entangled in the criminal
justice system. The fundamental mission of Justice Served is to ensure that these individuals are
able to reintegrate into society. Justice Served diverts resources away from its other work in this
area to educate people, including people disenfranchised under N.C.G.S. 13-1, about their
voting rights (or lack thereof), and to register them to vote (in accordance with current North
Carolina law). Justice Served also provides community-based alternatives to incarceration and
facilitates mentorship programs for people with involvement in the criminal justice system
geared at helping them transition into civic life.

11. Plaintiff Wash Away Unemployment is a nonpartisan, nonpro?t organization
located in New Bern, North Carolina. Its mission is to provide economic opportunities to
community members who have life experiences with the criminal justice system, and to advocate
for changes in policies that discriminate against persons with past involvement in the criminal
justice system. Wash Away Unemployment provides mentoring services, transitional housing,
and vocational training to justice-involved people, including persons who are currently
disenfranchised under N.C.G.S.A. 13-1. Wash Away Unemployment provides peer support to
community members navigating the criminal justice system, and offers youth programming
aimed at preventing criminal justice system involvement and increasing their chances of success.

Wash Away Unemployment diverts resources away from its other work in this area to educate

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people, including people disenfranchised under N.C.G.S.A. 13-1, about their voting rights (or
lack thereof), as well as ?nancial literacy, license restoration, and expungement opportunities.

12. Plaintiff North Carolina State Conference of the NAACP (?North Carolina
is a nonpartisan, nonpro?t organization composed of over 100 branches and 20,000
individual members throughout the state of North Carolina. The North Carolina NAACP has
members who are citizens but, under N.C.G.S.A. 13-1, are unable to vote due to a prior felony
conviction despite having been released from incarceration. The fundamental mission of the
North Carolina NAACP is the advancement and improvement of the political, civil, educational,
social, and economic status of minority groups; the elimination of racial prejudice; the
publicizing of adverse effects of racial discrimination; and the initiation of lawful action to
secure the elimination of racial bias. In furtherance of this mission, the North Carolina NAACP
advocates to ensure that the interests of the African American community and people of color are
represented on the local, state, and national legislative bodies by representatives who share the
community?s interests, values, and beliefs, and who will be accountable to the community. The
North Carolina NAACP thus encourages and facilitates nonpartisan voter registration drives by
its chapters to promote civic participation. The North Carolina NAACP is currently forced to
divert organizational resources away from activities core to its mission in furtherance of
education and voter engagement efforts required to assist potential voters in North Carolina in
understanding North Carolina?s felony-based disenfranchisement laws.

13. Plaintiff Timothy Locklear is a 57-year-old member of the Lumbee Tribe from
Lumberton, North Carolina. He was convicted of a felony offense in 2018, and after serving 10
months of incarceration, he was released on October 11, 2019. Mr. Locklear is currently on

post-release supervision for a term of at least nine months. He currently resides at Leading Into

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New Communities in Wilmington, NC, where he is enrolled in a 90-day post-release
program. As part of this program, Mr. Locklear regularly attends Narcotics Anonymous (NA)
and Alcoholics Anonymous (AA) meetings. Mr. Locklear works full-time at the New Hanover
County Land?ll. Mr. Locklear believes that every voice is supposed to count in the political
process. Mr. Locklear would vote in upcoming North Carolina elections but for his
disenfranchisement.

14. Plaintiff Drakarus Jones is a 26-year-old African American man from
Greenwood, Mississippi. In 2017, Mr. Jones moved to North Carolina for a fresh start, but found
himself entangled in the criminal justice system. He was convicted of a felony in Onslow
County, North Carolina for which he was incarcerated for two years. He was released on August
15, 2019 and is now on post-release supervision until April 2020. He is currently pursuing an
electrical line working certi?cation from Cape Fear Community College. Mr. Jones was recently
employed as a construction worker in Wilmington, North Carolina, but was let go after his
employer conducted a criminal background check. He is actively seeking new employment. Mr.
Jones went to the polls to vote in the 2019 election, but was told by a poll worker that he was
unable to vote due to his criminal history. Mr. Jones believes that by being released from prison
to contribute as a productive member of society, pay taxes, and all of the many privileges of free
citizens, he should be allowed to voice his opinion through voting. Mr. Jones would vote in
upcoming North Carolina elections but for his disenfranchisement.

15. Plaintiff Susan Marion is a 54-year-old white woman from Jamestown, North
Carolina. Ms. Marion was convicted of a felony in 2019 after losing her home and car to
Hurricane Florence. She was released on November 19, 2019 and was placed on post-release

supervision for a term of at least nine months. Ms. Marion currently resides at LINC in

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Wilmington, North Carolina. Ms. Marion received an accounting degree from North Carolina
Agricultural Technical State University in 1997, and is planning to seek employment in
accounting after completing her time at LINC. Ms. Marion has been a registered, active voter in
the past until she was disenfranchised due to her felony conviction. Ms. Marion believes her
current disenfranchisement prevents her voice from being heard. Ms. Marion would vote in
upcoming North Carolina elections but for her disenfranchisement.

16. Plaintiff Henry Harrison is a 51-year-old African American man originally from
Newark, New Jersey. Mr. Harrison was convicted of a felony in January 2019 in New Hanover
County. After serving nine months in prison, Mr. Harrison was released on July 15, 2019. Mr.
Harrison is on post-release supervision for a period of at least nine months. Prior to his
conviction, Mr. Harrison was employed as a construction worker by the City of Wilmington?s
Parks and Recreation Department. He has been working as a full-time truck driver for the New
Hanover County Land?ll since his release from prison. Mr. Harrison previously had his
disenfranchisement extended due to an inability to pay restitution following a 2016 conviction in
Greene County. Mr. Harrison would vote in upcoming North Carolina elections but for his
disenfranchisement.

17. Plaintiff Ashley Cahoon is a 26-year-old white woman from Greenville, North
Carolina. Ms. Cahoon was convicted of a felony in 2017 in Beaufort County, and was released
on September 19, 2019. Ms. Cahoon is on post-release supervision for a period of at least nine
months. She is currently employed at Kentucky Fried Chicken and works approximately 30
hours per week. Ms. Cahoon attends three Narcotics Anonymous (NA) or Alcoholics

Anonymous (AA) meetings each week. She believes that as a result of her disenfranchisement,

US 167134072v2

her voice does not matter. Ms. Cahoon would vote in upcoming North Carolina elections but for
her disenfranchisement.

18. Plaintiff Shakita Norman is a 28-year?old African-American woman from
Raleigh, North Carolina. Ms. Norman currently resides in Raleigh with her ?ancee and ?ve
children. Following her conviction on a felony offense in December 2018, Ms. Norman was
sentenced to ?special probation? for a term of at least three years, with her probation currently
set to end in December 2021. Ms. Norman has worked at Jiffy Lube for two years and is training
to be a Jiffy Lube manager. She is also working to obtain her GED. Ms. Norman believes that it
is important to vote in both local and national elections. She would like to be able to vote to
effect change in the community where she works and where her children attend public school.
Ms. Norman would vote in upcoming North Carolina elections but for her disenfranchisement.

l9. Defendant Timothy K. Moore is the Speaker of the North Carolina House of
Representatives. Defendant Moore is sued in his of?cial capacity only.

20. Defendant Philip E. Berger is the President Pro Tempore of the North Carolina
Senate. Defendant Berger is sued in his of?cial capacity only.

21. Defendant North Carolina State Board of Elections is an agency responsible for
the regulation and administration of elections in North Carolina.

22. Defendant Damon Circosta is the Chair of the North Carolina State Board of
Elections. Mr. Circosta is sued in his of?cial capacity only.

23. Defendant Stella Anderson is the Secretary of the North Carolina State Board of
Elections. Ms. Anderson is sued in her of?cial capacity only.

24. Defendant Ken Raymond is a member of the North Carolina State Board of

Elections. Mr. Raymond is sued in his of?cial capacity only.

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25. Defendant Jeff Cannon is a member of the North Carolina State Board of
Elections. Mr. Carmon is sued in his of?cial capacity only.

26. Defendant David C. Black is a member of the North Carolina State Board of
Elections. Mr. Black is sued in his of?cial capacity only.

JURISDICTION AND VENUE

27. This Court has jurisdiction over this action pursuant to Articles 26 and 26A of
Chapter 1 of the General Statutes.

28. Under NC. Gen. Stat. 1-267.1, the exclusive venue for this action is the Wake
County Superior Court.

29. Under NC. Gen. Stat. 1-267.1, a three-judge court must be convened because
this action involves a facial challenge to the validity of an act of the General Assembly.

FACTUAL ALLEGATIONS

A. Felony Disenfranchisement Has Long Been Used in North Carolina to
Suppress the Political Power of African Americans

30. North Carolina has stripped the right to vote from persons convicted of certain
crimes since the enactment of its ?rst state constitution in 1776. But the state began to broadly
disenfranchise all persons with felony convictions after the Civil War as a means of suppressing
the political power of African Americans.

31. Before the Civil War, election of?cials in North Carolina excluded only
?infamous? persons from suffrage. The disenfranchisement of infamous persons is rooted in
English common law. Infamy ?could result either from the commission of an infamous crime,?
such as treason, bribery, or perjury, ?or from the receipt of an infamous punishment such as

whipping,? which could be in?icted for certain other crimes, like petty larceny. See Pippa

US 1671 34072v2

Holloway, Living in Infamy: Felon Disenfranchisement and the History of American Citizenship
6, 34, 91 (2014).

32. Neither the pre-war state Constitution nor pre-war state statutory law expressly
authorized the disenfranchisement of infamous persons. According to one historian,
disenfranchisement for infamy ?appears to have simply been a tradition.? Id. at 170 n.13. North
Carolina did, however, enact statutory and constitutional provisions explaining how rights might
be restored following disenfranchisement for infamy. See N.C. Const. Art. 1, Sec. 4, pt. 4 (1776,
amended in 1835); Ch. 36, 1840 NC. Sess. Laws 68.

33. North Carolina?s policy of disenfranchising persons convicted of certain crimes
became a tool of race-based political suppression immediately after the Civil War. In 1866, an
inspector with the Freedman?s Bureau noti?ed a federal military commander that white former
rebels in North Carolina ?had found new use for longstanding state laws? that imposed infamy
(and thus effectively disenfranchisement) for crimes like petty larceny that were punishable by
whipping. Steven F. Miller et al., Between Emancipation and Enfranchisement: Law and the
Political Mobilization of Black Southerners, 1865-1867, 70 Chi-Kent L. Rev. 1059, 1074 (1995)
(citing Petition of Wm. C. Watson et al. to Lt. H.C. Strong (July 17, 1866)). Across the state,
these rebels ?conspired to seize negroes, procure convictions for petty offenses punishable at the
whipping post, and thus disqualify them forever from voting in North Carolina.? Holloway at
33.

34. Contemporary sources describe the whippings as meticulous and widespread.
Harper?s Weekly described a scene outside a courthouse in Raleigh where a crowd of ?ve
hundred watched ?the public whipping of colored men as fast as they were convicted and

sentenced.? Whipping and Selling American Citizens, Harper?s Weekly (Jan. 12, 1867). Atlantic

10

US l67l34072v2

 chronicled the incident, explaining that ?[t]he public whipping of negroes for paltry
offenses is carried on in North Carolina on a large scale,? because ?every man who has been
publicly whipped is excluded from the right of voting.? The True Problem, Atlantic 
374 (March 1867). This incident ?explains why disenfranchisement for prior criminal
convictions was among the ?rst strategies employed to block African American suffrage in
North Carolina.? Holloway at 34.

35. North Carolina adopted a new constitution after the Civil War as a condition of
rejoining the Union. See N.C. Const. of 1868; John V. Orth, North Carolina Constitution
History, 70 NC. L. Rev. 1759, 1783 (1992). Congress, then in the hands of the ?Radical
Republicans,? called a North Carolina Constitutional Convention in 1868. Reconstruction
legislation required that delegates to the convention include both white and black citizens. Id
Indeed, ?fteen of the 120 delegates to the 1868 Convention were black. Id.

36. The Constitution enacted at the 1868 Convention provided for universal male
suffrage, eliminated property requirements to vote, and abolished slavery. See N.C. Const. of
1868, Art. I, 33; id. art. VI, 1. Like its predecessor, the 1868 Constitution did not contain any
provision that expressly stripped the vote from persons convicted of certain crimes. See id. Art.
VI. And in the years that followed, African Americans achieved some success in municipal,
state legislative, and even congressional elections. See, e. William Mabry, White Supremacy
and the North Carolina Suffrage Amendment, 13 NC. Hist. Rev. 1 (1936); see also, e. g,
Biographical Directory of the United States Congress, John Adams Hyman; Biographical
Directory of the United States Congress, James E. O?Hara.

37. Rati?cation of the 1868 Constitution ?earned North Carolina readmission to

representation in Congress and the end of Reconstruction? in the state. Orth, supra at 1781. But

11

US l67l34072v2

the end of Reconstruction in North Carolina precipitated the emergence of ?pre-war political
forces . . . in the form of the Conservative Party? in 1870. Id The Conservatives, who would
soon rebrand themselves as Democrats, won control of the General Assembly in 1870 and
immediately proposed a convention to replace the ?hated? 1868 Constitution. Id. The General
Assembly initially submitted to voters the question as to whether to call a constitutional
convention. North Carolina voters rejected the idea. Id.

38. The General Assembly eventually called a constitutional convention in 1875
without submitting the question to voters. Id. The 1875 Convention enacted a ?urry of
amendments to the 1868 Constitution aimed at eroding the rights of African Americans. These
Amendments required segregation in public schools and banned interracial marriage. See 1875
Amendments to the NC. Const. of 1868, Amends. XXVI They also directly assaulted
the political rights of African Americans by stripping counties of the ability to elect their own
local of?cials, including judges, giving that power instead to the Conservative-controlled
General Assembly. See id. Amend. XXV. ?The purpose of this amendment, as was well
understood, was to block control of local government in the eastern counties by blacks who were
in the majority there.? Orth, supra at 1783.

39. Particularly relevant here, the 1875 Amendments codi?ed felony
disenfranchisement in the state Constitution for the ?rst time. See 1875 Amendments to the NC.
Const. of 1868, Amend. XXIV. The text of the original 1875 felony disenfranchisement
amendment largely mirrors the analogous provision in North Carolina?s current constitution.
The 1875 amendment provided:

[N]o person who, upon conviction or confession in open Court, shall be adjudged

guilty of felony, or of any other crime infamous by the laws of this state, and

hereafter committed, shall be deemed an elector, unless such person shall be
restored to the rights of citizenship in a mode prescribed by law.

12

US 167134072V2

1875 Amendments to the NC. Const. of 1868, Amend. XXIV.

40. The General Assembly enforced felony disenfranchisement via statute for the ?rst
time the following year in 1876. Ch. 275, NC. Laws 1876, Sec. 10; see Jeff Manza 
Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy at 23 7-

239 (2006) . The 1876 statute provided:

The following classes of persons shall not be allowed to register to vote in this state,

to-wit: First. Persons under twenty?one years of age. Second. Idiots and lunatics.

Third. Persons who, upon conviction or confession in open court, shall have been

adjudged guilty of felony or other crime infamous by the laws of this state . . . unless

they shall have been legally restored to the rights of citizenship in the manner

prescribed by law.

Ch. 275, 1876 NC. Sess. Laws 519-20.

41. North Carolina?s new laws providing for felony disenfranchisement and depriving
localities of the ability to elect their own judges worked hand-in-hand to enforce white supremacy.
See Holloway at 62. ?The change in the composition of the judiciary . . . and the expanded
disenfranchisement provision, added up to an increase in the number of Democratic judges? able
to deprive African Americans of the right to vote. Id; see also Notes ?om the Capital, NY. Times,
Oct. 11, 1875, at 5 (explaining that the ?evident purpose? of these changes was ?to prevent colored
men and poor white men from exercising the right of suffrage?).

42. Until the enactment of North Carolina?s current disenfranchisement statute, persons
with felony convictions were required to petition a court for the restoration of their right to vote.
The decision on whether to restore the person?s rights was left to the discretion of the court. See
Ch. 36, 1840 NC. Sess. Laws 68.

43. North Carolina?s expansion of its felony disenfranchisement laws following the

Civil War was not unique. Many former Confederate states expanded the scope of criminal

13

US l67134072v2

history-based disenfranchisement after 1865 to cover most or all felony convictions in an effort
to suppress the political power of newly freed slaves. See Manza Uggen at 49?53; see also id
at 23 7-239 (listing the year of each state?s ?rst felony disenfranchisement law). Indeed, ?[?elon
voting restrictions were the ?rst widespread set of legal disenfranchisement measures imposed
on African Americans; the literacy tests and other mechanisms for political exclusion followed at
a later date.? Daniel S. Goldman, The Modern-Day Literacy Test: Felon Disenfranchisement
and Race Discrimination, 57 Stan. L. Rev. 611, 625 (2004). These disenfranchisement laws
proliferated as the imprisonment of African Americans increased. By the 18703, nearly 95% of
persons with felony convictions in southern states were African American. See Christopher
Adamson, Punishment After Slavery: Southern Penal Systems, 1865-1890, Oxford University
Press (1983).

44. Following the Civil War, the political power of the then-Democratic Party in
North Carolina waxed and waned over the next several decades. In an effort to regain and
solidify their power, the party championed ?rigid safeguards? against voting by ?ex-convicts,?
State Democratic Executive Committee of North Carolina, The Democratic Handbook (1898) at
84, and sought to implement those ?safeguards? after regaining power in 1898.

45. In the leadup to the 1898 election, the then-Democratic Party ran ?a vicious racist
campaign the likes of which the state had never seen.? William S. Powell, North Carolina
through Four Centuries, 433 (1989). The campaign expressly emphasized the need for ?white
men [to] control and govern? the State. State Democratic Executive Committee of North
Carolina, The Democratic Handbook (1898) at 38; see also id. (?It is better for the negro, as well
as for the white man, that the white man should make and administer the laws . . . . It has been in

the past, and is to-day, the special mission of the Democratic Party to rescue the white people of

14

US 167134072v2

the east[ern part of the State] from the curse of negro domination?). The party sent ?persuasive
speakers into virtually every community in North Carolina to report on the evils of Negro
domination? and Widely circulated a letter ?calling upon whites to stand together in support of

999

?White Supremacy. North Carolina through Four Centuries at 433-35. The campaign also
featured racist newspaper editorials and cartoons showing the threat purportedly posed by

African American political in?uence, including the following cartoon featured in the Raleigh

News Observer on October 27, 1898:

    

   

J?See Vampire that Hovers Over North Carolina,? UNC Libraries.?

46. In plotting their return to power, the turn-of the-century Democrats observed with
alarm that ?fully one-third [of votes in North Carolina] is cast by the negroes? and partially
attributed that number to voting by people with felony convictions. See id. at 37, 88. They
further observed that additional restrictions on voting by people with felony convictions were

needed ?in order to protect the white voters of the State against having their honest votes off-set

 

1 5.
5

US l67134072v2

by illegally and fraudulently registered negro votes.? Id. at 84; see also id. at 88 (explaining that
?negro ex-convicts . . . were registered and voted galore . . . leav[ing] to the white voters of
North Carolina no protection against this fraudulent registration save what their courage and
Anglo-Saxon manhood may give them?).

47. Democrats prevailed in the 1898 election, regaining control of the General
Assembly. The victory was interpreted as ?an ultimatum to curb the political power of the
Negro.? William Mabry, White Supremacy and the North Carolina Suffrage Amendment, 13
NC. Hist. Rev. 1 (1936). Over the next several years, the General Assembly enacted numerous
laws designed to suppress African-American political power, including a literacy test (that
exempted white citizens), a poll tax, and harsh new penalties for voting with a felony conviction.
See id; see Ch. 507, 1899 NC. Sess. Laws 658, 681 (penalizing voting by persons with felony
convictions with ?imprison[ment] at hard labor not exceeding two years?).

48. To this day, the harsh criminal penalties imposed on voting by persons with
felony convictions continue to have a deterrent effect on lawful voting by re-enfranchised
persons.

B. Today?s Law Prolongs Disenfranchisement Through Probation and Parole

49. Adopted in 1971, the current felony disenfranchisement provision of the North
Carolina Constitution provides as follows:

Disquali?cation of felon. No person adjudged guilty of a felony against this State

or the United States, or adjudged guilty of a felony in another state that also

would be a felony if it had been committed in this State, shall be permitted to vote

unless that person shall be ?rst restored to the rights of citizenship in the manner

prescribed by law.
N.C. Const., Art. VI, 2, cl. 3.

50. Also in 1971 the General Assembly enacted a new felony disenfranchisement

statute maintaining the prior policy of disenfranchising people even after release from
16

US 167134072v2

incarceration. Speci?cally, the 1971 statute provided that people with felony convictions
regained the right to vote if either ?the Department of Correction at the time of release
recommend[ed] restoration? or ?two years have elapsed since release by the Department of
Correction, including probation or parole.? See

(emphasis

added).

51. The General Assembly amended this statute in 1973, adopting the essential
language that is currently in effect?namely, that people with felony convictions regain the right
to vote only upon an ?unconditional discharge? not only from incarceration, but also from
probation, parole, or a suspended sentence. See


52. The current statute, last amended in 2013, provides as follows:

Any person convicted of a crime, whereby the rights of citizenship are forfeited,

shall have such rights automatically restored upon the occurrence of any one of

the following conditions:

(1) The unconditional discharge of an inmate, of a probationer, or of a parolee by

the agency of the State having jurisdiction of that person or of a defendant under a

suspended sentence by the court.

(2) The unconditional pardon of the offender.

(3) The satisfaction by the offender of all conditions of a conditional pardon.

(4) With regard to any person convicted of a crime against the United States, the

unconditional discharge of such person by the agency of the United States having

jurisdiction of such person, the unconditional pardon of such person or the
satisfaction by such person of a conditional pardon.

(5) With regard to any person convicted of a crime in another state, the

unconditional discharge of such person by the agency of that state having

jurisdiction of such person, the unconditional pardon of such person or the

satisfaction by such person of a conditional pardon.

N.C.G.S.A. 13?1.
17

US 167134072V2

53. Under this law, North Carolinians who have been released from incarceration but
have not been ?unconditionally discharged? from probation or post-release supervision cannot
vote. Additionally, North Carolinians who have been convicted of a felony and are sentenced to
community supervision without incarceration cannot vote.

54. The terms of this law extend the disenfranchisement of people already deemed ?t
to return to or remain in society. The requirement that a person complete any term of parole or
post-release supervision can delay restoration of the right to vote by at least one year after the
person?s release from incarceration. See N.C.G.S. And the requirement that a
person complete any term of probation imposes delays that are typically even longer?and of
uncertain duration due to the potential for modi?cations, extensions, or early termination. See
N.C.G.S. N.C.G.S. 

55. Once an individual is on probation, a court has the power ?at any time? prior to
the termination of probation to extend the period of probation ?for good cause,? regardless of
whether that person has violated probation. N.C.G.S. Probation hearings,
whether to revoke or extend, are ?regarded as informal or summary? and provide minimal due
process protections. State v. Sellars, 185 NC. App. 726, 728, 649 656, 657 (2007). With
every extension of probation, that person?s disenfranchisement is likewise extended.

56. In 2018, ?Property and non-traf?cking drug offenses comprised 76% of probation
sentences.? North Carolina Sentencing Policy Advisory Commission, Structured Sentencing
Statistical Report at 22, 24 (2018).

57. According to recent data from the North Carolina Sentencing and Policy Advisory
Commission, the average length of probation for ?intermediate? felony convictions for

Class felony offenses) is 26 months. See North Carolina Sentencing Policy

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US l67l34072v2

Advisory Commission, Structured Sentencing Statistical Report at 23 (2018). The average
length of probation is longer for more serious felony offenses. Class felony offenses, for
instance, carry an average probation period of 42 months. [d2

C. Today?s Law Conditions the Right to Vote on the Ability to Pay Court Costs

58. Because North Carolina law requires the payment of court costs, fees, and
restitution as a condition of probation, North Carolina?s disenfranchisement statute, N.C.G.S. 
13-1, effectively conditions the right to vote on a person?s ability to pay. As a result, people who
have otherwise completed the terms of their probation but cannot afford to pay court costs are
denied the right to vote due to the continuation on their probation. By contrast, otherwise
similarly situated people who can pay will be discharged from probation and regain the right to
vote.

5 9. North Carolina law provides that regular conditions of probation, a
defendant must . . . [p]ay the costs of court, any ?ne ordered by the court, and make restitution or
reparation as provided in subsection N.C.G.S. Court costs in North
Carolina have increased 400% over the past twenty years. See Heather Hunt and Gene Nichol,
Court Fines and Fees: Criminalizing Poverty in North Carolina (?Criminalizing Poverty?) at 4,
North Carolina Poverty Research Fund (2017). In 1999, a North Carolinian charged with a
felony would face a total of $106 in court ?nes and fees. ACLU of North Carolina, The
Consequences of Rising Court Fines and Fees in North Carolina Report?) at 10 (2019).
But today, ?$106 would barely cover two-thirds of the General Court of Justice fee in district

court.? Id.

 

2 Data is not presently available for the average length of probation for Class or felony offenses. Probation is
not available for Class A felony offenses. See N.C.G.S. ISA-1340.17.

19

US 167134072v2

60. Notwithstanding the fact that the overwhelming majority of people who are
criminal defendants in North Carolina are indigent, the General Assembly has imposed a wide
array of court costs on those defendants who are convicted or plead guilty in Superior Court,

which has jurisdiction over all felony cases. These costs include:

 

 

 

 

 

 

General Court of Justice Fee $154.00
Facilities Fee $30.00
Telecommunications Fee $4.00
Fee the retirement and insurance $6.25
bene?ts of . . . law enforcement of?cers?
Fee ?for the supplemental pension bene?ts of $1.25
sheriffs?
Fee ?[f]or the services, staf?ng, and $2.00

operations of the Criminal Justice Education
and Standards Commission?

 

 

 

 

 

Pretrial Release Services Fee $15.00

Fee each arrest or personal service of $5.00
criminal process?

DNA Fee $2.00

 

See N.C.G.S. Individuals who are unable to pay these fees ?within 40 days
of the date speci?ed in the court?s judgment? must additionally pay a late fee of $50.00. Id 


61. The General Assembly has also imposed signi?cant costs arising from probation
itself. People must ?[p]ay the State of North Carolina for the costs of appointed counsel, public
defender, or appellate defender to represent him in the case(s) for which he was placed on
probation.? Id. They also must ?[p]ay a supervision fee? of $40.00 per
month. Id Given that the average person convicted of an intermediate
felony will serve 26 months of probation, the average person must pay $1,040 in supervision fees
alone to satisfy the terms of their probation. On top of that, ?[a]ny person placed on house arrest

with electronic monitoring . . . shall pay a fee of ninety dollars ($90.00) for the electronic

20

US l67134072v2

 

monitoring device and a daily fee in an amount that re?ects the actual cost of providing the
electronic monitoring.? Id. 

62. These required payments impose substantial hardships on criminal defendants,
many of whom lack the requisite resources to make them. Nationally, around 80 to 90% of those
charged with a criminal offense are poor enough to qualify for a court-appointed lawyer.
Criminalizing Poverty at 6. And 60% of those charged earned less than $1,000 per month before
their incarceration. Id. In North Carolina, people released from incarceration are often unable to
obtain employment enabling them to pay these substantial fees given that 30% have no more
than a ninth-grade education, and less than 1% have a college education. Id.

63. While North Carolina law allows judges to waive certain court costs for ?just
cause,? N.C.G.S. 7A-3 04, waivers are exceedingly rare. In 2018, judges issued waivers in only
3% of cases. See North Carolina Administrative Of?ce of the Courts, 2019 Report on Criminal
Cost Waivers at 35 (2019). While the rate at which judges grant cost waivers has always been
low, the rate has plummeted even further after the General Assembly enacted a law in 2015
requiring the Administrative Of?ce of the Courts to track the number of times individual judges
issued waivers. See ACLU Report, at 13-15; N.C.G.S. 7A-350.

64. Making matters worse, judges rarely inquire into a defendant?s ability to pay court
costs even though nearly 90% of persons charged with a crime are indigent. According to recent
court observations in Robeson, Edgecombe, and Avery Counties, ?a defendant?s ability to pay
court ?nes and fees was weighed in 24 percent, 5 percent, and 25 percent of cases, respectively.?
ACLU Report at 15 n.43.

65. Payment of the fees discussed above is a ?condition of probation.? N.C.G.S.A.

15A-1343. And failing to make these payments constitutes a ?Violation of a condition of

21

US 1671 34072v2

probation? that authorizes the court to extend the term of probation?and thus the denial of the
right to vote?to a maximum of ?ve years. Id A court may extend the term
of probation for people convicted of felonies by an additional three years ?for the purpose of
allowing the defendant to complete a program of restitution.? Id 

66. Notwithstanding high rates of indigence and the failure of courts to assess ability
to pay, people are regularly arrested and subjected to extended periods of probation for failing to
pay court ?nes. See ACLU Report at 24-30. For example, out of 110 court observations
conducted in Robeson County in 2017, staggering 32 observations ended in an individual
incarcerated for failure to pay fees and ?nes.? Id at 24. Even when people have otherwise
complied with the terms of their probation, courts will extend the period of probation for failing
to pay costs. See id. at 29-30. The result is that people remain disenfranchised based on their
inability to pay court costs.

D. Today?s Law Deprives Roughly 70,000 North Carolinians of the Right to
Vote Even Though They Have Been Released From Incarceration

67. North Carolina law does not require state authorities to notify people when their
rights are restored. Although the law requires the State Board of Elections (?State Board? or
to inform people after a felony conviction of their loss of voting rights by mail, see
N.C.G.S.A. (previously codi?ed at 163A-877), no comparable law requires
the State Board to notify people when their rights are restored following their ?unconditional
discharge? from any state-ordered probation or parole.

68. Even after people?s rights are restored, some sit out elections based on fear that
they will be prosecuted for voting illegally. This lack of clarity is particularly problematic for
people with felony convictions, who disproportionately have low levels of education. Trial
courts sometimes order this narrow-purpose extension in error, leaving people convicted of

22

US 167134072v2

felonies on probation for additional years without legal authority. See State v. Hoskins, 242 NC.
App. 168, 775 15 (2015) (holding that trial court lacked authority for three-year extension
and vacating probation violation order after defendant completed full eight years of probation).

69. Under North Carolina law, ?a superior court judge may not accept a plea of guilty
or no contest from the defendant without ?rst addressing him personally? and informing that
person of certain rights and effects of the guilty plea, including possible immigration
consequences. N.C.G.S. The standard plea transcript form sets out additional
admonitions, including that ?you may forfeit any State licensing privileges you have in the event
that your probation is revoked.? Form AOC-CR-300. Neither the statute nor the form makes
any mention of the loss or restoration of the right to vote.

70. As with loss of the right to vote, the trial court is not required to inform an
individual of the existence of post?release supervision as part of a guilty plea. As one criminal
justice scholar has noted, this leads to Widespread misunderstanding:

I get a lot of mail from inmates. Lately, many of them have written to express

their surprise upon being told by prison officials?for the first time?that they

will have to complete a term of post?release supervision when they get out of

prison. Sex offenders?especially Class sex offenders, including those

convicted of indecent liberties?are very surprised to learn that they will be on

PRS for five years.

Jamie Markham, ?Surprise Post-Release Supervision,? North Carolina Criminal Law Blog (June
11, 2015). Paradoxically, this surprise period of additional disenfranchisement based on
supervision includes conditions that allow people released from incarceration to obtain credits
for ?reintegration into society?. N.C.G.S. 

71. According to a 2017 estimate, 69,386 North Carolina voting-aged citizens are

unable to vote because they remain on felony probation or post-release supervision. See

Southern Coalition for Social Justice, The Freedom to Vote: Felony Disenfranchisement in North
23

US 167134072v2

Carolina at 5 (August 2019) (?Southern Coalition Report?). These estimates do not capture
those who are eligible to vote but remain off the rolls due to misinformation or fear of
prosecution. Indeed, it is virtually impossible to calculate the full extent of disenfranchisement
due to the persistent failure of state authorities to inform people with felony convictions about
their voting rights.

72. These nearly 70,000 North Carolinians disenfranchised by the state are among
those whom CSI, Justice Served, Wash Away Unemployment, and the North Carolina NAACP
help transition back into society, work with to provide resources as they overcome the collateral
consequences of their criminal convictions, and assist in understanding their voting rights.
Voting restrictions on these citizens force these organizational plaintiffs to divert resources
toward voting rights education efforts and away from other programming initiatives including
those geared at facilitating reintegration, providing necessary resources for employment,
housing, and other basic needs, and otherwise assisting their full civic engagement.

73. The number of North Carolinians effected by probation or post-release felony
disenfranchisement is substantial compared to the narrow margins of victories by which elections
in North Carolina are often decided. In 2014, for example, a nonpartisan election for District
Court Judge was decided by five votes out of more than 60,000 votes cast, with the winner
prevailing by a margin of 30,746 to 30,741. See SBOE, 2014 Election Results.3 Municipal
elections are often decided by comparably small margins. In November 2019, for example, a

nonpartisan city council race in Burlington, North Carolina was decided by a margin of 2,780 to

 

3 1/04/20 
24

US l67l34072v2

2,739. See SBOE, 2019 Election Results.4 Similarly, elections to the General Assembly are
often decided by just hundreds of votes. See, e. g. SBOE, 2018 Election Results.5

74. By denying the fundamental right to vote to substantial numbers of voting-aged
citizens who are otherwise full participants in society, North Carolina?s felony

disenfranchisement laws create a signi?cant risk that election results may not re?ect the will of

the majority.
E. Today?s Law Disproportionately Disenfranchises African Americans
75. Today, as in the im-Crow era, the policy of disenfranchising people even after

their release from incarceration continues to disproportionately harm people of color today.
Although African Americans represent about 20% of the voting population in North Carolina,
they represent roughly 40% of the people disenfranchised following release from incarceration.
See US. Census Bureau, Annual Estimates of the Resident Population by Sex, Age, Race Alone
or in Combination (2018). African-American men, in particular, comprise a disproportionate
percentage of the post?release supervision population. According to data from 2017, black men
make up 9.2% of the North Carolina voting age population, but comprise 40% of the male
probation population in the state. See id. Black women are nearly 11% of the voting population,
but comprise about 24% of the female probation population. See id.

76. Unsurprisingly, the burdens of North Carolina?s felony disenfranchisement law
fall disproportionately on the eastern part of the State, where much of North Carolina?s African

American population resides.

 

4 1/05/20] 
5 
25

US 1671 34072v2

 



Percentage of 18+ Population Under Probation by County (2017)

 

 

0.27%
. a 73%
- 103%
- 1,31%

 

Disenfranchisamant Rate

- 0.77%
- 1.02%
- 1 3%

- 1.94%

 

 

Data 2010 Census (2017 HCAuomelerJ Coronal Inlvactions avatar-i (A051 Date

 

 

 

See Southern Coalition Report at 7; see also id. at 22-44 (providing data on county-by-county

disenfranchisement rates).

F.

77.

disenfranchise

There Is No Legitimate Government Interest in Continuing to Disenfranchise
People With Past Felony Convictions Who Live in North Carolina
Communities

There is no legitimate, let alone compelling, government interest in continuing to

people with past felony convictions who live in North Carolina communities and

are subject to the laws and policies enacted by elected of?cials.

78.

On the contrary, research overwhelmingly shows that civic engagement plays a

critical role in helping persons with felony convictions re-j oin society. As one study observes,

?[p]eople who

are part of the decision making process not only have a greater investment in the

decisions, but a greater investment in society as well. . . . Those who participate in the

democratic process have a greater investment in the resulting decisions, and more importantly,

US 167 34072V2

26

an investment in preserving that process.? See Holona Leanne Ochs, ?Colorblind? Policy in
Black and White: Racial Consequences of Disen?anchisement Policy, 34 Pol?y Stud. J. 81, 89
(2006). Another found that the ?desire to be productive and give something back to society? was
critical to reintegration. See Christopher Uggen et al., ?Less Than the Average Citizen Stigma,
Role Transition and the Civic Reintegration of Convicted Felons, in After Crime and
Punishment: Pathways to Offender Reintegration 263 (Shadd Maruna Russ Immarigeon eds.,
2004)

79. Studies also show that civically engaged citizens are less likely to recidivate. The
data shows that ?bringing people into the political process makes them stakeholders, which in
turn helps steer them away from future crimes.? Brennan Center for Justice: Florida: An Outlier
in Denying Voting Rights at 18 (2016). For example, Florida (which until 2019 required felons
to af?rmatively petition to have their rights restored) has published data comparing recidivism
rates among people previously convicted of felonies who have been re-enfranchised to those who
remain disenfranchised, and the numbers are stunning. Although the average annual recidivism
rate in Florida is around 30 percent, virtually no one who had their rights restored re-offended.
See id. (?In 2011, of the 52 people granted [restoration of civil rights zero were
returned to custody. In 2012, out of the 342 people granted RCR, only one re-offended. In
2013, out of 569 people granted RCR, zero re-offended. In 2014, of 562 people granted RCR,
three re?offended. In 2015, of 427 people granted RCR, one 

80. Voting restrictions on citizens no longer incarcerated (or who never were
incarcerated) also harm entire families. Studies show that when heads of households are
disenfranchised, the level of civic engagement for the entire family drops. See Erika Wood,

Restoring the Right to Vote, Brennan Ctr. for Justice, at 13 (2009). Children frequently learn

27

US 167134072v2

about the importance of voting from their parents. Many parents take their children with them
into the voting booth?a formative experience that is often a child?s first act of civic
engagement. See id (explaining that parent?s electoral participation plays a signi?cant role
in determining Whether his child will become civically engaged?). According to one study, a
parent?s political participation has more in?uence on a child?s decision to vote in the future than
any other factor. See Eric Plutzer, Becoming a Habitual Voter: Inertia, Resources, and Growth
in Young Adulthood, 96 Am. Pol. Sci. Rev. 41, 43 (2002). The ripple effects of
disenfranchisement are felt across generations.

81. For these reasons, probation and parole of?cers?who work with persons with
felony convictions and are among the closest to understanding the relevant interests at stake?
frequently assert that voting restrictions lack a coherent justi?cation. See Amicus Br. of
American Probation Parole Assoc. at 13-15, Hand v. Scott, NO. 18?11388 (11th Cir. 2018)
(?Probation and parole of?cers are the state of?cials most directly responsible for reintegrating
offenders back into society after their term of imprisonment. Among these of?cers, there is a
growing consensus that voting plays an important role in the reintegration process?). The
American Probation and Parole Association, the American Correctional Association, and the
Association of Paroling Authorities International have each enacted resolutions supporting the
restoration of voting rights for persons with felony convictions. See id. The American
Correctional Association maintains, for example, that voting restrictions on a person after
successful discharge from correctional supervision is ?contradictory to the goals of a democracy,
the rehabilitation of felons, and their successful reentry to the community.? Am. Corr. Ass?n,
Public Correctional Policy on Restoration of Voting Rights for Felony Offenders 2005-3, in

Public Correctional Policies 73 (Jan. 25, 2017).

28

US l67l34072v2

82. Prosecutors and other law enforcement of?cials have echoed these views. The
former President of the Police Foundation has asserted that, rather than treating persons with
felony convictions as a ?pariah class,? we need to bring people back as whole citizens? in order
to have ?effective policing.? Wood, Restoring the Right to Vote at 10. The former President of
the Police Executive Research Forum has asserted that it is ?better to remove any obstacles that
stand in the way of offenders resuming a full, healthy, productive life.? Id. And a former
prosecutor from Kentucky has added that ?we spend millions to rehabilitate offenders and bring
them back into society only to let an outdated system push them back with one hand while we
pull with the other.? R. David Stengel, Let?s Simplify the Processfor Disenfranchised Voters,
Cent. Ky. News-J (Jan. 28, 2007).6

83. The General Assembly?s unconstitutional and arbitrary voting restrictions thus
pose a signi?cant barrier to individuals with past felony convictions seeking to reintegrate and
be productive and contributing members of society. These restrictions are plainly at odds with
the missions of CSI, Justice Served, Wash Away Unemployment, and the North Carolina
NAACP and force these organizational plaintiffs to divert resources toward voter education
efforts about these restrictions and away from other programming that helps individuals
transition back to and participate fully in society.

84. Eliminating voting restrictions on North Carolinians with felony convictions
living in community will also reduce inaccurate voter purges. North Carolina removes
approximately 10,000 citizens from its voter rolls each year due to felony convictions. See
Melissa Boughton: Monday Numbers: Who has been removed from NC ?5 voter rolls?, N.C.

Policy Watch (Aug. 19, 2019) (8,574 registered voters with felony convictions removed from the

 

6 
29

US 167 34072v2

North Carolina rolls in 2018; 9,150 in 2017). But these purges are often inaccurate, as the State
Board of Elections frequently misclassi?es voters and inaccurately removes voters from the rolls
in reliance on its rules prohibiting people from voting due to a prior felony conviction, even after
their release from incarceration. See, e. g, Proposed Findings of Fact Conclusions of Law ll
214, League of Women Voters v. North Carolina, 997 F. Supp. 2d 322 (M.D.N.C. Aug. 17, 2015)
(sworn testimony asserting that voters have been ?incorrectly identi?ed as having been convicted
of a felony and purged from [the] voter roll?).

CLAIMS FOR RELIEF

COUNT ONE
Violation of North Carolina?s Free Elections Clause, Art. I, 10

85. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

86. Article 1, Section 10 of the North Carolina Constitution, which has no counterpart
in the US Constitution, provides that ?All elections shall be free.?

87. North Carolina?s Free Elections Clause traces its roots to the 1689 English Bill of
Rights, which declared that ?Elections of members of Parliament ought to be free.? Bill of
Rights 1689, 1 W. M. c.2 (Eng); see John V. Orth, North Carolina Constitutional History, 70
NC. L. Rev. 1759, 1797-98 (1992).

88. This provision in the English Bill of Rights responded to efforts by the king to
manipulate parliamentary elections by manipulating the composition of the electorate. .R.
Jones, The Revolution of] 688 in England 148 (1972). The king could modify voter eligibility
rules by issuing municipal charters, and in some areas he would issue new charters to shrink the
electorate to help his allies, while in others, he expanded the electorate to ensure his opponents
would lose. See George H. Jones, Convergent Forces: Immediate Causes of the Revolution of

1688 in England 75-78 (1990). The king thus manipulated the electorate in different areas

30

US 167134072v2

?based on the detailed suggestions of the [king?s] agents as to what speci?c local rights could,
with electoral advantage, be con?rmed or extended.? .R. Jones, The Revolution of I 688 in
England 148 (1972). The king?s efforts to manipulate elections led to a revolution. After
dethroning the king, the revolutionaries called for a ?free and lawful parliament? as a critical
reform, and they enacted the free elections clause. Grey S. De Krey, Restoration and Revolution
in Britain: A Political History of the Era of Charles II and the Glorious Revolution 241 247-48,
250 (2007).

89. Numerous states in addition to North Carolina have free elections clauses that
trace their roots to the English Bill of Rights. For instance, adopted its version of
free elections clause in 1776. See League of Women Voters v. Commonwealth, 178 A.3d 737,
806-07 (Pa. 2018). As the Supreme Court has explained, free
elections provision re?ected ?a desire to secure access to the election process by all people with
an interest in the communities in which they lived?universal suffrage?by prohibiting exclusion
from the election process of those without property or ?nancial means.? Id. at 807. ?It, thus,
established a critical leveling protection in an effort to establish the uniform right of the people . .
. to select their representatives in government,? and ?sought to ensure that this right of the people
would forever remain equal no matter their ?nancial situation or social class.? Id.

90. North Carolina adopted its Free Elections Clause in 1776, the same year as
and North Carolina has strengthened its Free Elections Clause since to reinforce
its principal purpose of preserving the popular sovereignty of North Carolinians. The original
clause, adopted in 1776, provided that ?elections of members, to serve as Representatives in the
General Assembly, ought to be free.? N.C. Declaration of Rights, VI (1776). The North

Carolina Constitution of 1868 adopted after the Civil War, which initially expanded the political

31

US 167134072v2

rights of African Americans, included a revised Free Elections Clause stating that ?[a]ll elections
ought to be free.? N.C. Const. art. I, 10 (1868). And when North Carolina adopted its current
constitution in 1971, it revised the provision again to state that ?[a]ll elections shall be free.?
N.C. Const. art. I, 10. This change was intended to ?make [it] clear? that the Free Elections
Clause and the other rights secured to the people by the Declaration of Rights ?are commands
and not mere admonitions? to proper conduct on the part of the government. N. C. State Bar v.
DuMont, 304 NC. 627, 635, 639, 286 89, 97 (1982) (internal quotations omitted).

91. In light of the text and history of this provision, a North Carolina court recently
held that ?the meaning of the Free Elections Clause is that elections must be conducted freely
and honestly to ascertain, fairly and truthfully, the will of the people. This . . . is a fundamental
right of the citizens enshrined in our Constitution?s Declaration of Rights, a compelling
governmental interest, and a cornerstone of our democratic form of government.? Common
Cause, 2019 WL 4569584, at *110.

92. Citing the Free Elections Clause, the North Carolina Supreme Court similarly has
explained that ?[t]he right to vote is one of the most cherished rights in our system of
government.? Blankenship v. Bartlett, 363 NC. 518 (2009) (Citing N.C. Const. art. I, Sec. 10).
?No right is more precious in a free country than that of having a voice in the election of those
who make the laws under which, as good citizens, we must live.? Ia?. internal quotation marks
omitted)).

93. North Carolina?s felony disenfranchisement statute, which indiscriminately denies
the right to vote to all people with felony convictions even after their release, until they receive
an ?unconditional discharge[]? from probation or parole, facially violates the Free Elections

Clause. Just like the King of England?s efforts to in?uence elections by manipulating the

32

US 167134072V2

eligible electorate, North Carolina?s statutory scheme prolonging disenfranchisement through
probation or parole, restricts North Carolina?s electorate.

94. In so doing, North Carolina?s felony disenfranchisement statute violates the Free
Election Clause?s guarantee that elections in North Carolina must ?honestly . . . ascertain, fairly
and truthfully, the will of the people.? Common Cause, 2019 WL 4569584, at The statute
denies the right to vote to roughly 70,000 North Carolina voting-age citizens who are currently
living in North Carolina communities on some form of probation or post-release supervision.
Particularly given the razor-thin margins of many North Carolina elections, the
disenfranchisement statute prevents the ?Will of the people?the majority? from prevailing. Id.
at 300 (emphasis added) (quoting State ex rel. Quinn v. Lattimore, 120 NC. 426, 428, 26 SE.
638, 638 (1897)).

95. The disenfranchisement statute?s requirement that people released from
incarceration pay all ?nancial obligations before regaining the right to vote is an especially
pernicious violation of the Free Elections Clause. Elections in North Carolina are not free when
voting is conditioned on some people?s ability to make ?nancial payments.

96. Although the North Carolina Constitution authorizes the General Assembly to
regulate rights restoration for people with felony convictions, the General Assembly?s rights
restoration statutes must comply with North Carolina law, including other provisions of the
North Carolina Constitution. By continuing disenfranchisement through probation or parole, the
General Assembly?s scheme violates the Free Elections Clause.

COUNT TWO

Violation of the North Carolina Constitution?s
Equal Protection Clause, Art. I, 19

97. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

33

US 1671 34072v2

98. The Equal Protection Clause of the North Carolina Constitution guarantees to all
North Carolinians that person shall be denied the equal protection of the laws.? N.C.
Const, art. I, 19.

99. This provision provides for greater protections than its federal counterpart. In
particular, North Carolina?s Equal Protection Clause protects the right to ?substantially equal
voting power.? Stephenson, 355 NC. at 379. ?It is well settled in this State that the right to vote
on equal terms is a fundamental right.? Id. at 378 (emphasis added).

100. North Carolina?s felony disenfranchisement statute violates the Equal Protection
Clause in three distinct ways.

101. First, the statute deprives all people with past felony convictions subject to
probation or parole of ?substantially equal voting of any ?voting power? at all.

102. Second, the statute has the intent and effect of discriminating against African
Americans. The continued disenfranchisement of people with felony convictions through
probation or parole, even after their release, disproportionately impacts African Americans and
deprives the African American community of ?substantially equal voting power.?

103. Third, in conditioning the right to vote on the ability to make ?nancial payments,
the statute creates an impermissible class?based classi?cation.

104. Strict scrutiny applies to each of these classi?cations. Defendants cannot provide
any legitimate government interest?let alone a compelling government interest?in denying the
right to vote to all people with felony convictions until they are discharged from probation or
parole. There is no legitimate justi?cation for denying the right to vote to upwards of 70,000
citizens who are living amongst society and whose lives will be governed by the laws enacted

and enforced by elected of?cials. Nor is North Carolina?s felony disenfranchisement statute

34

US 167134072v2

narrowly tailored to any conceivable government interest. The statute indiscriminately
disenfranchises all people with felony convictions until they complete probation or parole.
105. Although the North Carolina Constitution authorizes the General Assembly to
regulate rights restoration for people with felony convictions, the General Assembly?s rights
restoration statutes must comply with North Carolina law, including other provisions of the
North Carolina Constitution. By continuing disenfranchisement through probation or parole,
even beyond releasee the General Assembly?s scheme violates the Equal Protection Clause.

COUNT THREE
Violation of North Carolina Constitution?s
Freedom of Speech and Assembly Clauses, Art. I, 12 14

106. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

107. Article 1, Section 12 of the North Carolina Constitution provides that ?[t]he
people have a right to assemble together to consult for their common good, to instruct their
representatives, and to apply to the General Assembly for redress of grievances.?

108. Article 1, Section 14 of the North Carolina Constitution provides that ?[f]reedom
of speech and of the press are two of the great bulwarks of liberty and therefore shall never be
restrained.?

109. These provisions provide broader rights than do their counterparts in the US.
constitution. Common Cause, 2019 WL 4569584, at *118.

110. ?[V]oting for the candidate of one?s choice and associating with the political party
of one?s choice are core means of political expression protected by the North Carolina
Constitution?s Freedom of Speech and Freedom of Assembly Clauses.? Id. at 119. ?Voting
provides citizens a direct means of expressing support for a candidate and his views.? Id.

111. North Carolina?s disenfranchisement statute constitutes an outright ban on ?core

. . . political expression.? Id. The statute denies tens of thousands of North Carolina citizens of
35

US 167134072v2

the most ?direct means? that exists of ?expressing support for a candidate and his views.? Id.
The statute is no different from a law that prevents people with felony convictions from giving a
speech about matters of public importance in the town square.

112. Because the disenfranchisement statute prohibits protected expression and
association for people released from incarceration, strict scrutiny applies. Defendants cannot
provide any legitimate government interest?let alone any compelling government interest?in
denying people the right to vote until they complete probation or parole. There is no legitimate
justi?cation for denying the right to vote of 70,000 citizens Who are living amongst society and
Whose lives will be governed by the laws enacted and enforced by elected of?cials. Nor is North
Carolina?s disenfranchisement statute narrowly tailored to any conceivable government interest.
The statute indiscriminately disenfranchises all people with felony convictions until they
complete probation or parole.

113. Although the North Carolina Constitution authorizes the General Assembly to
regulate rights restoration for people with felony convictions, the General Assembly?s rights
restoration statutes must comply with North Carolina law, including other provisions of the
North Carolina Constitution. By continuing disenfranchisement through probation, parole, or
post-release supervision, beyond release, the General Assembly?s scheme violates the Freedom

of Speech and Assembly Clauses.
COUNT FOUR
Violation of North Carolina Constitution?s
Ban on Property Quali?cations, Art. I, 11
114. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.
115. Article 1, Section 11 of the North Carolina Constitution provides that 

political rights and privileges are not dependent upon or modi?ed by property, no property

quali?cation shall affect the right to vote or hold office.?
36

US 167134072v2

116. North Carolina?s felony disenfranchisement statute violates this provision by
conditioning the right to vote on whether people have a type of property?money. E. g. Reiter v.
Sonotone Corp, 442 US 330, 338 (1979) (??Money, of course, is a form of property?). The
statute conditions the right to vote on a person?s ability to pay court costs and fees. It provides
that a person convicted of a felony shall have their citizenship rights restored only upon their
?unconditional discharge? from probation. N.C.G.S. If the person fails to ?[p]ay the
costs of court, any ?ne ordered by the court, and make restitution or reparation,? N.C.G.S. 
he or she has committed a ?violation of a condition of probation? that
authorizes the court to extend the term of probation?and thus the denial of the right to vote?to
as much as ?ve years. N.C.G.S. North Carolinians who
have otherwise completed the terms of their probation are routinely subjected to extended
probation?and thus extended disenfranchisement?for failing to pay court fees. Indeed, while
probation may not be revoked based on nonpayment of costs when poverty prevents that person
from paying the costs, State v. Robinson, 248 NC. 282, 103 376 (1958), the inability to
pay provides no relief from the continuation or extension of probation. An individual on
probation must pay these ?nancial obligations in order regain the right to vote, rendering these
obligations the functional equivalent of a poll tax.

117. Because North Carolina?s felony disenfranchisement statute makes re-
enfranchisement ?dependent? on whether an individual has suf?cient money to pay court costs,
fees, and restitution, the statute violates the ban on property quali?cations set forth in Article I, 

11 of the North Carolina Constitution.

37

US 167134072v2

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment

in their favor and against Defendants, and;

a.

US l67l34072v2

Declare that N.C.G.S. 13-1 ?3 disenfranchisement of individuals while on
probation, parole, or suspended sentence is facially unconstitutional and invalid
under the North Carolina?s Constitution?s Free Elections Clause, Art. I, 10;
Equal Protection Clause, Art. I, 19; the Freedom of Speech and Freedom of
Assembly Clauses, ArtProperty Quali?cations,
Art. I, 11.

Enj oin Defendants, their agents, of?cers, and employees from preventing North
Carolina citizens released from incarceration or not sentenced to incarceration
from registering to vote and exercising the right to vote based on their felony
conviction.

Enjoin Defendants, their agents, of?cers, and employees from conditioning
restoration of the right to vote on payment of any ?nancial obligation.

Require Defendants, their agents, of?cers, and employees to notify all people
with past felony convictions who have already been released from incarceration
or are released from incarceration in the future that their right to vote was restored
upon release from incarceration or upon not being placed under community
supervision and that they may lawfully register to vote and vote in North Carolina
elections.

Require Defendants, their agents, of?cers, and employees to engage in and take

such additional steps as this Court deems just and appropriate to ensure that

38

affected citizens are informed of their restored rights and are able to register to
vote and vote in North Carolina elections.

f. Grant Plaintiffs such other and further relief as the Court deems just and

appropriate.
FORWARD JUSTICE ARNOLD PORTER
KAYE SCHOLER LLP
Daryl Atkins (N .C. ar No. 39030) R. Stanton Jones*
Whitley Carpenter (N .C. Bar No. 49657) Elisabeth S. Theodore*
400 Main St, SUite 203 Daniel Jacobson*
Durham, NC 27701 Graham White*

(919) 323-3 889
daryl@forwardjustice.org
wcarpenter@forwardj ustice.org

601 Massachusetts Ave. NW
Washington, DC 20001?3743
(202) 942-5000

Penda Hair* stanton.j ones@arnoldporter.com
PO. Box 42521
Washington? DC 20015 . PROTECT DEMOCRACY PROJECT

phair@forwardjustice.org
Benjamin L. Berwick*

Counselfor Plainti?s 15 Main Street, Suite 312
Watertown, MA 02472
(202) 579-4582


Farbod K. Faraji*

77 Pearl Street

Middletown, CT 06459

(202) 579-4582


Stephanie Llanes*
115 Broadway, 5th Floor,
New York, NY 10006

(202) 579-4582

Counselfor Plaintg?s?

*Pro Hac Vice motion forthcoming

39

US l67l34072v2

EXHIBIT 

STATE OF NORTH CAROLINA

COUNTY OF WAKE

COMMUNITY SUCCESS 
JUSTICE SERVED NC, NORTH
CAROLINA STATE CONFERENCE OF THE
NAACP,

Plaintiffs,
V.

TIMOTHY K. MOORE, IN HIS OFFICIAL
CAPACITY OF SPEAKER OF THE NORTH
CAROLINA HOUSE OF
PHILIP E. BERGER,
IN HIS OFFICIAL CAPACITY PRESIDENT
PRO TEMPORE OF THE NORTH
CAROLINA THE NORTH
CAROLINA STATE BOARD OF
DAMON CIRCOSTA, IN HIS
OFFICIAL CAPACITY AS CHAIRMAN OF
THE NORTH CAROLINA STATE BOARD
OF STELLA ANDERSON, IN
HER OFFICIAL CAPACITY AS SECRETARY
OF THE NORTH CAROLINA STATE
BOARD OF KENNETH
RAYMOND, IN HIS OFFICIAL CAPACITY
AS IVIEIVEBER OF THE NORTH CAROLINA
STATE BOARD OF JEFF
CARMON, IN HIS OFFICIAL CAPACITY AS
MEMBER OF THE NORTH CAROLINA
STATE BOARD OF DAVID C.
BLACK, IN HIS OFFICIAL CAPACITY AS
MEMBER OF THE NORTH CAROLINA
STATE BOARD OF ELECTIONS,

Defendants.

 

IN THE GENERAL COURT OF IUSTICE
SUPERIOR COURT DIVISION

MOTION FOR EXPEDITED
SCHEDULING ORDER AND CASE
MANAGEMENT ORDER

Pursuant to North Carolina Rule of Civil Procedure 26(d) and this Court?s inherent
authority, Plaintiffs respectfully ?le this motion seeking an Expedited Scheduling Order and
Case Management Order. In support thereof, Plaintiffs state as follows:

1. Plaintiffs ?led the Complaint in this action on November 20th, 2019, challenging
North Carolina?s statutory scheme for disenfranshising people formerly convicted of felonies
(?returning citizens?), NC. Gen. Stat. 13?1, because it violates the North Carolina
Constitution?s Free Elections Clause, Equal Protection Clause, Freedom of Speech and
Assembly Clauses, and the Ban on Property Qualifications. Defendants are the Speaker of the
state House and the President Pro Tempore of the state Senate (together, ?Legislative

Defendants?), and the State Board of Elections and its members (collectively, ?State Board

Defendants?).

2. Plaintiffs file this Motion to Expedite the case schedule in conjunction with their
Complaint.

3. In order to enable relief before the November 2020 elections, it is in the

overwhelming interest of the parties and the public to resolve this case as expeditiously as
possible. Based on recent estimates, if Plaintiffs were to prevail in this case, approximately
70,000 North Carolina residents who are currently disenfranchised would regain their right to
vote. See, Southern Coalition for Social Justice, The Freedom to Vote Felony
Disenfranchisement in North Carolina (Aug. 2019), available at Many
of these individuals have been disenfranchised for years following their release from

incarceratation, even though they are law-abiding members of their communities and their lives

2

are governed by the laws passed by elected officials. ?The right to vote is one of the most
cherished rights in our system of government.? Blankenship v. Bartlett, 363 NC. 518 (2009)
(citing N.C. Const. art. I, See. 10). ?No right is more precious in a free country than that of
having a voice in the election of those who make the laws under which, as good citizens, we
must live.? Id. (internal quotation marks omitted). Accordingly, an expedited case schedule is
necessary to ensure that, if Plaintiffs prevail on the merits, Plaintiffs and tens of thousands of
other North Carolinians do not risk suffering through another election in which they are denied
their fundamental right to vote.

4. Moreover, an expedited case schedule is needed so that, if Plaintiffs prevail, there
is suf?cient time before the November 2020 election to reach out to affected communities,
educate them on the changes in the law, and allow them time to register to vote. Individuals re?
entering society following their incarceration are often difficult to reach and alerting these
individuals on any newly obtained right to vote may be especially difficult given that there have
been high-pro?le criminal prosecutions in North Carolina of people formerly convicted of felony
violations who voted while on probation. See Bonner, Felony charges of illegal voting
dismissed for ?ve NC residents, News Observer, Aug. 14, 2018, 

5. An expedited case schedule is also in the interests of the State Board Defendants.
The State Board Defendants, as well as local boards of elections, will bene?t from having as
much time as possible to process voter registrations from Plaintiffs and other individuals who

regain their right to vote if Plaintiffs prevail.

6. To promote a timely resolution of this case, Plaintiffs have effectuated prompt
service on Defendants and will in short order serve written discovery requests. Plaintiffs now
propose the following deadlines and procedures relating to pleadings, procedures, discovery,
motions practice, and trial if necessary:

0 All pleadings, motions, briefs, discovery requests, and discovery responses shall be
served by e-mail. Depositions may be taken upon 10 days? notice.

0 Defendants shall ?le any motion(s) to dismiss and brief(s) in support no later than
December 13, 2019. Plaintiffs shall ?le any opposition to any motion(s) to dismiss
no later than December 23, 2019, and Defendants shall ?le any reply(ies) no later
than January 6, 2020.1

- All written fact discovery shall be completed no later than January 10, 2020. The
parties by agreement may continue document or written discovery beyond this
deadline, but the Court will not intervene in this voluntary process except in
extraordinary circumstances, and the date on which summary judgment motions are
due will not be modi?ed because of information obtained through this voluntary
process.

0 Expert reports shall be served no later than January 21, 2020. Those reports shall
include the information stated in Rule of the North Carolina Rules of
Civil Procedure. Rebuttal expert reports shall be served no later than February 7,
2020. Reply expert reports shall be served no later than February 18, 2020.

0 All fact depositions and fact discovery shall be completed by January 31, 2020.

0 Expert depositions shall be completed by February 25, 2020, which shall be the same
day that all discovery shall be completed.

- Plaintiffs anticipate that this case will be appropriate for resolution on summary
judgment. Any summary judgment motion(s) shall be due on March 6, 2020. Any
opposition to summary judgment motion(s) shall be due on March 20, 2020, and any
reply(ies) shall be due on March 27, 2020.

 

Plaintiffs propose this extended window of time for Defendants to ?le any reply(ies) to accommodate for the
holidays.
4

0 Should the Court determine that this case is not appropriate for resolution on
summary judgment, trial shall commence, subject to the court?s availability, on April
20, 2020.

7. Plaintiffs? proposed schedule will allow adequate time for this Court to enter
judgment and for any appellate review before the November 2020 general elections. The
schedule proposed above is also reasonable given that there should be minimal fact and expert
discovery in this case. There is no need for this case to have a drawn?out schedule, and the
public interest overwhelmingly favors an expeditious resolution of this matter.

WHEREFORE, Plaintiffs request that the Court enter an order providing for the

expedited case schedule set out above.

Respectfully submitted this the 20th day of November, 2019.

FORWARD JUSTICE CW--.

?Nu.

2
Li 

Daryl Atki?d? (NC Bar 39030)
Whitley en er (NC Bar 49657)

400 Main St, Suite 203
Durham, NC 27701
daryl@forwardjustice.org

    

Penda Hair*

PO. Box 42521
Washington, DC. 20015
phair@forwardjustice.org

Counsel for Plainti?fs

ARNOLD PORTER
KAYE SCHOLER LLP

R. Stanton Jones*

Elisabeth S. Theodore*

Daniel F. Jacobson*

Graham White*

601 Massachusetts Ave. NW
Washington, DC 20001-3743
(202) 942?5000

stantonj ones@arnoldporter.com

PROTECT DEMOCRACY PROJECT

Benjamin L. Berwick*

15 Main Street, Suite 312
Watertown, MA 02472

(202) 579?4582


Farbod K. Faraji"=

77 Pearl Street

Middletown, CT 06459

(202) 579?4582


Stephanie Llanes*

115 Broadway, 5th Floor,

New York, NY 10006

(202) 579?4582

Counsel for Plainti?fs

Pro hac vice motions forthcoming

EXHIBIT 

STATE OF NORTH CAROLINA DIN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

WAKE COUNTY 2923 JAN lb. i2: ll-l' 19 CVS 15941

COMMUNITY SUCCESS WIMHEEC O. 30
JUSTICE SERVED NC, INC. NORTH .
CAROLINA STATE 
THE NAACP,

THE STATE BOARD 
DEFENDANT 5? MOTION TO
DISMISS AND ANSWER

Plaintiffs;
v.

TIMOTHY K. MOORE, IN HIS OFFICIAL
CAPACITY OF SPEAKER OF THE NORTH
HOUSE OF
et a1.

Defendants.

 

NOW COME Defendants the North Carolina State Board ?of Elections; DAMON
CIRCOSTA, in his of?cial capacity as Chairman of the North Carolina The State Board of
Elections; STELLA ANDERSON, in her of?cial capacity as Secretary of the North Carolina State
Board -of Elections; KENNETH RAYMOND, in his of?cial capacity as a member of the North
Carolina State Board of Elections; JEFF CARMON, in his of?cial capacity as a member of the
North Carolina State Board of Elections; DAVID C. BLACK, in his of?cial capacity as a-member
of the North Carolina. State Board of Elections, (collectively referred to as the ?State Board
Defendants?), by and through the undersigned counsel and hereby submit the following motion to

dismiss and answer to Plaintiffs? Amended Complaint:

MOTION TO DISMISS
N.C. R. Civ. P. 12(b)(6)

The State Board Defendants move this Court pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure to dismiss this action, in whole or in part, for failure to state a

claim upon which relief can be granted.

The State Board Defendants respond to the allegations in the numbered paragraphs of the

Complaint as follows:
INTRODUCTION
1. The allegations of this Paragraph state legal conclusions and require no response

?om State' Board Defendants. To the extent a response is required, the allegations are denied.

2. The allegations of this Paragraph contain Plaintiffs? legal conclusions, to which no
response is required ??om the State Board Defendants. To_the extent a response to any factual
allegations contained in this Paragraph is required, the State Board Defendants lack knowledge or
information su?cient to form a belief as to the truth or falsity of such factual allegations, and the
same are therefore denied. 3. It is admitted that the General Assembly must exercise its legislative
authority consistent with the North Carolina Constitution. The North Carolina Constitution speaks
for itself and serve as the best'evidence of its own contents. The remaining allegations of this
Paragraph state legal conclusions and require no response from the State Board Defendants.

4. The North Carolina Constitution and the court order in Common Cause v. Lewis,
No. 18 (Wake Cty. Super. Ct., Sep. 03, 2019), speak for themselves and serve as the
best evidence of their own contents. The remaining allegations of this Paragraphcontain Plaintiffs?
legal conclusions and their general 'descriptionof the cause of action, to which no response is

required from the State Board'Defendants.

5. The North Carolina Constitution and Stephenson v. Bartlett, 355 N.C. 354, 562
377 (2002), speak for themselves and serve as the best evidence of their own contents. The
remaining allegations of this Paragraph contain Plaintiffs' legal conclusions and their general
description of the cause of action, to which no response is required from the State Board
Defendants.

6. The North Carolina Constitution and the referenced order in Common Cause v.
Lewis, No. 13 014001 (Wake Cty. Super. Ct., Sep: 03, 2019), Speak for themselves and serve
as the best evidence of their own contents. The remaining allegations of this Paragraph contain
Plaintiffs? legal conclusions and their general description of the cause of action, to which no

reSponse is required from the State Board Defendants.

7. The allegations of this Paragraph state legal conclusions and require no response
from the State Board Defendants.
8. The allegations of this Paragraph state legal conclusions, recite the relief requested

by Plainti?s in this action, and require no response from the State Board Defendants.
THE PARTIES
9. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph 9, and the same are therefore denied.
10. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph 10, and the same are therefore denied.
11. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph 1 1, and the same are therefore denied.
12. The State Board Defendants lack knowledge or information suf?cient to form a

belief as to the truth or falsity of the allegations of Paragraph 12, and the same are therefore denied.

13. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph '1 3, and the same are therefore denied.
14. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph 14, and the same are therefore denied.
15. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph 15, and the same are therefore denied.
16. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph 16, 'and the same are therefore denied.
17. The State Board Defendants lack knowledge or information suf?cient tofonn a
belief as to the truth or falsity of the allegations of Paragraph 17, and the same are therefore denied.
18. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of Paragraph 18, and the same are therefore denied.
19.. It is admitted that Defendant Timothy K. Moore is being sued in his o?icial
capacity as Speaker of the North Carolina House of Representatives.

20. It is admitted that Defendant Philip E. Berger is being sued in his of?cial capacity
as President Pro Tempore of the North Carolina Senate.

21. It is admitted that Defendant the North Carolina State Board of Elections is the
agency that is charged with statutory responsibilities for the regulation and administration of
elections in North Carolina.

22. It is admitted that Defendant Damon Circosta is the Chair of the North Carolina State
Board of Elections, and is sued in his Of?cial capacity only.

23. It is admitted that Defendant Stella Anderson is the Secretary of the North Carolina

State Board of Elections, and is sued in her of?cial capacity only.

24. It is admitted that Defendant Ken Raymond is a member of the North Carolina State
Board of Elections, and is sued in his official capacity only.

25. It is admitted that Defendant Jeff Cannon is'a member of the North Carolina State
Board of Elections, and is sued in his of?cial capacity only.

26. It is admitted that Defendant David C. Black is a member of the North Carolina State
Board of Elections, and is sued in his of?cial capacity only.__

JURISDICTION AND VENUE

27. To the extent Plaintiffs seek a declaratory judgment regarding N.C. Gen. Stat. 
13-1, or assert a facial challenge to the constitutionality of N.C. Gen. Stat. 13-1, it is admitted
that this Court has jurisdiction over declaratory judgment claims or facial claims pursuant to
Articles 26 and 26A of Chapter 1 of the General Statutes. Otherwise denied.

28. To the extent Plaintiffs seek to assert a facial challenge to the constitutionality of
Gen. Stat. 13-1, it is admitted that such a facial challenge must be ?led in or transferred to
the Superior Court of Wake County and must be heard by a three-j udge panel of the Superior Court
of Wake County as delineated in Gen: Stat. 1-2611. Otherwise denied.

29. To the extent Plaintiffs seek to assert-a facial challenge to the constitutionality of
N.C. Gen. Stat. 13-1, it is admitted that a three-judge court must be convened to determine the
merits of a facial challenge in the manner delineated in N.C. Gen. Stat. l-267.l. Otherwise

denied.

FACTUAL ALLEGATIONS
30. The North Carolina Constitution of 1776 speaks for itself, and serves as the best

evidence of its own contents. The State 'Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,

and the same are therefore denied;

31. Upon information and belief, it is admitted that limitations on certain felon
citizenship rights trace their roots to English cbmmon law. The State Board Defendants lack
knowledge or information suf?cient to form a belief _as to the truth or falsity_ of the remaining
allegations of this Paragraph, and the same are therefore denied.

32. Upon information and belief, it is admitted that North Carolina Constitution of
1776, as amended in 1835, authorized the General Assembly to-pass general laws regulating the
restoration of the rights of citizenship to persons convicted of infamous crimes, which the General
Assembly did in Chapter 36, 1840 NC. Sess. Laws 68. The North Carolina Constitution of 1776,
as a whole, speaks for itself, and serves-as the best evidence of its own Contents. The State Board
Defendants lack knowledge or information su?cient to form a belief as to the truth or falsity of
the remaining allegations of this Paragraph, and the same are therefore denied.

33. The law review article referenced in this Paragraph, along with the letter cited
therein, speak for themselves and serve as the best evidence of their own contents. The State Board
Defendants lack knowledge or information suf?cient to form a belief as to the truth or falsity of
the remaining factual allegationsof this Paragraph, and the same are therefore denied.

34. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining factual allegations of this
Paragraph, and the same are therefore denied.

35. It is admitted, upon information and belief, that a North Carolina Constitutional
Convention was convened in 1868, and that the Constitutional Convention included white and
black delegates. Upon information and belief, it is further admitted that North Carolina adopted a

new' constitution after the Civil War in 1868. The State Board Defendants lack knowledge or

information su?icient to form a belief as to the truth or falsity of the remaining allegations of this
Paragraph, and the same are therefore denied.

36. The Constitution of North Carolina of 1868 and the writings referenced in this
Paragraph speak for themselves, and serve as the best evidence of their own contents. Upon
information and belief, it is however admitted that the Constitution of 1868 abolished slavery,
eliminated property quali?cations for voting, and provided for universal male suffrage. The State
Board Defendants lack knowledge or information suf?cient to form a belief as to the truth or falsity
of the remaining allegations of this Paragraph, and the same are therefore denied.

37. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. It is admitted on information and belief that in 1871 the
General Assembly submitted to voters the question as to whether to call a constitutional
convention, and the voters'rejected the proposition. The State Board Defendants lack knowledge
or information suf?cient to form a belief as to the truth or falsity of the remaining allegations of
this Paragraph, and the same are therefore denied.

38. Upon information and belief, it is admitted that the North Carolina Constitutional
Convention of 1875 was convened to consider constitutional revisions. The 1875 Amendments
and the writings referenced in this Paragraph speak for themselves, and serve as the best evidence
of their own contents. The State Board Defendants lack knowledge or information suf?cient to
form a belief as to the truth or falsity of the remaining allegations of this Paragraph, and the same
are therefore denied.

39. Upon information and belief, it is admitted that North Carolina Constitution of 

1868, as amended in 1875, containedin relevant part the following language:

But no person who, upon conviction or confession in open Court,
shall be-adjudged guilty of felony, or any other crime infamous by

the laws of this State, and hereafter committed, shall-be deemed an

elector, unless such person shall be restored to the rights of

citizenship in a mode prescribed by law.
All other 1875 Amendments to the North Carolina Constitution of 1868 speak for themselves, and
serve as the best evidence of their own contents. The State Board Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this

Paragraph, and the same are therefore denied.-

40. Upon information and belief, it is admitted that the General Assembly enacted a

session law that contained the following language:

The following classes of persons shall not be allowed to register or
vote in this state, to-wit: First. Persons under twenty-one years of
age. Second. Idiots and lunatics. Third. Persons who, upon
conviction or confession in open court, shall have been adjudged
guilty of felony or other crime infamous by the laws of this state,
committed after the ?rst day of January, in the year of our Lord one
thousand eight hundred and seventy seven, unless they shall have
been legally restored to the rights of citizenship in the manner
prescribed by law.

1876 NC. Sess. Laws 519-20, Ch. 275. The State Board Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this

Paragraph, and the same are therefore denied.

41. All writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and the?same are therefore denied.

42. It is admitted that under the 1840 session law cited in this Paragraph, persons
convicted of an ?infamous crime? were required to petition the superior court for-restorationof
their rights of citizenship, and the court would rule on that petition under the standards prescribed

8

in that law. The State Board Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the remaining allegations of this Paragraph, and the same are therefore
denied.

43. All writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and the same are therefore denied.

44. The Democratic Handbook referenced in this Paragraph speaks for itself, and serves
as the best evidence of its own contents. The State Board Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this
Paragraph, and the same are therefore denied.

45. All writings and the cartoon referenced in this Paragraph Speak for themselves, and
serve as the best evidence of their own contents. The State Board Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this
Paragraph, and the same are therefore denied.

46. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defdants lack knowledge or information
su?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and the same are therefore denied.

47. Upon information and belief, it is. admitted that Democrats prevailed in 1898
legislative elections. All writings and Session Laws referenced in this Paragraph speak for
themselves, and serve as the best evidence-of their own contents. The State Board Defendants

admit that the General Assembly enacted 1899 N.C. Sess. Laws 658 and 681. The'State Board

Defendants lack knowledge or information suf?cient to form a belief ?as to the truth or falsity of
the remaining allegations of this Paragraph, and the same are therefore denied.

48. The State Board Defendants lack knowledge or suf?cient to form a
belief as to the truth or falsity of the allegations of this Paragraph, and the same are therefore
denied.

49. It is admitted that a new North Carolina Constitution was rati?ed by the voters on
November 3, 1970, and became e?'ective on July 1, 1971, see 1969 N.C. Sess. Laws 1258, and
that the 1971 Constitution contains the following language:

Disquali?cation of felon. No person adjudged guilty of a felony
against this State or the United States, or adjudged guilty of a felony
in another state that also would be a felony if it had been committed
in this State, shall be permitted to vote unless that person shall be
?rst restored to the rights of citizenship in the manner prescribed by

law.

N.C. Const., Art. VI, 2, cl. 3.

50. 'The 1971 statute referenced in this Paragraph speaks for itself, and serves as the
best evidence of its own contents. State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the allegations of this Paragraph, and the same
are therefore denied.

51. Amendments to the 1971 statute referenced in this Paragraph speak for themselves,
and serves as the best evidence of their own contents. The State Board Defendants lack knowledge
or information suf?cient to form a belief as to the truth or falsity of the remaining allegations of
this Paragraph, and the same are therefore denied.

52. Admitted.

53. N.C.G.S. 13-1 speaks for itself, and serves as the bestevidence of its own

contents.
10

54. N.C.G.S. 13-1 and the cited provisions of Chapter 15A speak for themselves, and
serve as the best evidence of their own contents. The State Board Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this
Paragraph, and the same are therefore 'denied.

55. The statutes and the North Carolina Court of Appeals? opinion in State v. Sellers,
185 N.C. App. 726, 649 656 (2007), referenced in this Paragraph speak for themselves, and
serve as the best evidence of their own contents. The State Beard Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this
Paragraph, and the same are therefore denied.

56. The Report referenced in this Paragraph speaks for itself, and serves as the best
evidence of its own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and the same are therefore denied.

57. The Report referenced in this Paragraph speaks for itself, and serves as the best
evidence of its own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and thesame are therefore denied.

58. The allegations of this Paragraph state -legal conclusions, and require no response
?om the State Board Defendants. The State Board Defendants lack knowledge or information
su?icient to form a belief as to the truth or falsity of the remaining factual allegations of this
Paragraph, and the same are therefore denied.

59. Thestatutes and writings referenced in this Paragraph speak for themselves, and

serve as the best evidence of their own contents. The State Board Defendants lack knowledge or

11

information suf?cient to form a belief as to the truth or falsity of the remaining factual allegations
of this Paragraph, and the same are therefore denied.

60.. The statute referenced in this Paragraph speaks for itself, and serves as the best
evidence of its own contents. The State Board Defendants lack knowledge or information
sufficient to form a belief as to the truth or falsity of the remaining factual allegations of this
Paragraph, and the same are therefore denied.

61. The statute referenced in 'this Paragraph speaks for itself, and serves as the best
evidence of its own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining factual allegations of this
Paragraph, and the same are therefore denied.

62. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of this Paragraph, and the same are therefore
denied.

63. The statutes and writings referenced in this Paragraph speak for themselves, and
serve as the best evidence of their own contents. The State Board Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining factual allegations
of this Paragraph, and the same are therefore denied.

64. The ACLU Report referenced in this Paragraph speaks for itself, and serves as the
best evidence of its own contents. The State Board Defendants lack knowledge or information

sufficient to form abelief as to the truth or falsity of the factual allegations of this Paragraph, and

the same are therefore denied.

12

65. The statutes referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The allegations of this Paragraph, moreover, call for legal
conclusions, and require no response from the State Board Defendants.

66. The ACLU Report referenced in this Paragraph speaks for itself, and serves as the
best evidence of its own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining factual allegations of this
Paragraph, and the same are therefore denied.

67. Upon information and belief, it is admitted that N.C.G.S. 
delineates the North Carolina State Board of Elections? duties to report felony convictions to
county boards of elections. That statute speaks for itself, and serves as best evidence of its own
contents. The remainder of this paragraph states legal conclusions to which no response is
required.

68. The North Carolina Court of Appeals opinion in State 1). Hoskz'ns, 242 N.C. App.
168, 775 15 (2015) speaks for itself, and serves as the best evidence of its own contents.
The State Board Defendants lack knowledge or information suf?cient to form a belief as to the
truth or falsity of the remaining allegations of this Paragraph, and the same are therefore denied.

69. The statute and the AOC form referenced in this Paragraph speak for themselves,
and serve as best evidence of their own contents.

70. The statute and the post in North Carolina Criminal Law Blog referenced in this
Paragraph Speak for themselves, and serve as best evidence of their own contents. The State Board
Defendants lack- knowledge or information suf?cient to form ?a belief as to the truth or falsity of

the remaining allegations of this Paragraph, and the same are therefore denied.

13

71. The Southern Coalition for Social Justice Report referenced in this Paragraph
speaks for itself, and serves as the best'evidence of its own contents. The State Board Defendants
lack knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
allegations of this Paragraph, and the same are therefore denied.?

72. The State Board Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the allegations of this Paragraph, and the same are therefore
denied.

73. It is admitted that one of the 2014 nonpartisan elections for District Court Judge
was decided by 5 votes. It is further admitted that this Paragraph correctly reports the outcome of
a 2019 Burlington city council race. It is further admitted that elections for General Assembly
districts are sometimes decided by hundreds of votes, although much more often by thousands of
votes. The State Board Defendants lack knowledge or information suf?cient to form a belief as to
the truth or falsity of the remaining allegations of this Paragraph, and the same are therefore denied.

74. The allegations of this Paragraph state legal conclusions and require no response
from the State Board Defendants. The State Board Defendants lack knowledge or information
suf?cient to form a_belief as to the truth or falsity of the remaining factual allegations of this
Paragraph, and the same are therefore denied.

75. The US. Census Bureau statistics referenced in this Paragraph speaks for
themselves, and serve as the best evidence of their own contents. The State Board Defendants lack
knowledge or information su?cient to form a belief asto the truth or falsity of the remaining
allegations of this Paragraph, and the same are therefore denied.

76. The Southern Coalition Report referenced in this Paragraph speaks for itself, and

serves as the best evidence of its own contents. The State Board Defendants lack knowledge or'

14

information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this
Paragraph, and the same are therefore denied.

77. The allegations of this Paragraph state legal conclusions and require no response

from the State Board Defendants. To the extent a response is required, State Board Defendants
-deny that there is no legitimate, let alone compelling, government interest in waiting until a felon?s
sentence has been fully served before restoring their right to vote.

78. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and the same are therefore denied.

79. The studies referenced in this Paragraph speak for themselves, and serve as the best
evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and the same are therefore denied.

80. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,
and the same are therefore denied.

81. The writings referenced in this Paragraph speak for themselves, and serve. as the
best evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,

and the same are therefore denied.

15

82. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defendants lack knowledge or informatiOn
suf?cient to form a belief as to the truth or falsity of the remaining allegations of this Paragraph,

and the same are therefore denied.

83. The allegations of this Paragraph state legal conclusions and require no response
from the State Board Defendants. . To the extent a response is required, State Board Defendants
deny that North Carolina?s restrictions on voting by persons convicted of a felony who have not
completed their sentences are arbitrary or unconstitutional. The State Board Defendants lack
knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
factual allegations of this Paragraph, and the same are therefore denied.

84. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. Further, the allegations of this Paragraph contain factual
speculations as to future events, and require no response from the State Board Defendants. The
State Board Defendants deny that the State Board ?'equently misclassi?es voters or often
inaccurately removes voters ?'om the rolls on account of a felony conviction. The State Board
Defendants lack knowledge or information suf?cient to form a belief as to the truth or falsity of
the remaining factual allegations of this Paragraph, and the same are therefore denied.

CLAIMS FOR RELIEF
COUNT ONE
85. The State Board Defendants incorporate by reference and reassert their responses

to Plaintiffs? allegations in all of the Paragraphs of this Answer, asthough fully set forth herein.

86. Admitted.

16

87. The writings referenced in this Paragraph speak for themselves as to the history of
the Free Elections Clause, and serve as the best evidence of their own contents.

88. The writings referenced in this Paragraph speak for themselves, and serve as the
best evidence of their own contents. The State Board Defendants lack knowledge or information
suf?cient to form a belief as to the truth or falsity of the remaining factual allegations of this
Paragraph, and the same are therefore denied.

89. Constitution and the state case referenced in this
Paragraph speak for themselves, and serve as the best evidence of their own contents. The State
Board Defendants lack knowledge or information suf?cient to form a belief as to the truth or falsity
of the remaining factual allegations of this Paragraph, and the same are therefore denied.

90. The North Carolina Constitution of 1776, the North Carolina Constitution of 1868,
and the North Carolina Supreme Court?s opinion in N. C. State Bar v. Mom, 304 N.C. 627, 286
89 (1982) speak for themselves, and serve as the best evidence of their own contents. The
State Board Defendants lack knowledge or information suf?cient to form a belief as to the truth or
falsity of the remaining factual allegations of this Paragraph, and the same are therefore denied.

91. The court order in Common Cause v. Lewis, No. 18 CVS 014001 (Wake Cty. Super.
Ct., Sep. 03, 2019), speaks for itself, and serves as the best evidence of its own contents. The
remaining allegations of this Paragraph call for legal conclusions, and otherwise require no
response from the State Board Defendants.

92. The North Carolina Supreme Court?s opinion in Blankenship v. Bartlett, 363 N.C.
518, 681' 759 (2019), Speaks for itself, and serves as the best evidence of its own contents.
The remaining allegations of this Paragraph call for legal conclusions, and otherwise require no

response from the State Board Defendants.

1-7

93. -Denied.

94. The court order in Common Cause v. Lewis, No. 18 (Wake Cty. Super.
Ct., Sep. 03, 2019), speaks for itself, and serves as the best evidence of its own contents. The
remaining allegations of this Paragraph are denied.

95. Denied.

96. It is admitted that the North Carolina Constitution authorizes the General Assembly
to regulate the citizenship rights? restoration for North Carolina felons, and that the General
Assembly must abide by the North Carolina Constitution in its legislative activities. The remaining
allegations of this Paragraph are denied.

COUNT TWO

97. The State Board Defendants incorporate by reference and reassert their responses
to Plainti?'s? allegations in all of the Paragraphs of this Answer, as though fully set forth herein.

98. N.C. Const., Art. I 19 speaks for itself, and serves as the best evidence of its own
contents.

99. The North Carolina Constitution and Stephenson v. Bartlett, 355 N.C. 354,- 562
377 (2002), speak for themselves, and serve as the best evidence of their own contents.
The remaining allegations of this Paragraph contain Plainti??s? legal conclusions, to which no
response is required from the State Board Defendants.

100. Denied.

101. The allegations of this Paragraph, including the legal conclusions and constitutional

interpretations in it, are denied.

18

102. Denied that the statute in question has discriminatory intent. The State Board
Defendants lack knowledge or information suf?cient to form a belief as to the truth or falsity of
the remaining factual allegations of this Paragraph, and the same are therefore denied.

103. Denied.

104. The allegations of this Paragraph state legal conclusions to which no response is
required from the State Board Defendants. The remaining factual allegations of this Paragraph are
denied.

105. It is admitted that the North Carolina Constitution authorizes the General Assembly
to regulate the citizenship rights? restoration for North Carolina felons, and that the General
Assembly must abide by the North Carolina Constitution in its legislative activities. The remaining
allegations of this Paragraph are denied.

COUNT THREE

106. The State Board Defendants incorporate by reference and reassert their responses
to Plaintiffs? allegations in all of the Paragraphs of this Answer, as though fully set forth herein.

107. N.C. Const., Art. I 12 speaks for itself, and serves as the best evidence of its own

contents.

108. N.C. Const., Art. I 14 speaks for itself, and serves as the best evidence of its own

contents.

109. The court order in Common Cause v. Lewis, No. 18 CVS 014001 (Wake Cty. Super.
Ct., Sep'. 03, 2019), speaks for itself, and serves as the best evidence of its own contents.

1 10. The court order in Common Cause v. Lewis, No. 18 CVS 014001 (Wake Cty. Super.

Ct., Sep. 03, 2019), speaks for itself, and serves as the best evidence of its own contents.

l9

1 1 1. The court order in Common Cause ?Lewis, No. 18 CVS 014001 (Wake Cty. Super.
Ct., Sep. 03, 2019), speaks for itself, and serves as the best evidence of its own contents. The
remaining allegations of this Paragraph are denied.

112. The allegations of this Paragraph state legal conclusions to which no response is
required from the State Board Defendants. The remaining factual allegations of this Paragraph are
denied.

1 13. It is admitted that the North Carolina Constitution authorizes the General Assembly
to regulate the citizenship rights? restoration for North Carolina felons, and- that the General
Assembly must abide by the North Carolina Constitution in its legislative activities. The remaining
allegations of this Paragraph are denied

COUNT FOUR

114. The State Board Defendants incorporates by reference and reassert their responses
to Plaintiffs? allegations in all of the Paragraphs of this Answer, as though ?rlly set forth herein.

115. NC. Const. Art. I 11 speaks for itself, and serves as the best evidence of its own
contents.

1 16. The statutes and cases referenced in this Paragraph speak for themselves, and serve
as the best evidence of their own contents. The State Board Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the factual allegations, and the
same is therefore denied. The remaining allegations of this Paragraph are denied.

117. Denied.

PRAYER FOR RELIEF
The State Board Defendants admit that Plaintiffs seek the relief described in the prayer?s

Paragraphs a through-f. The speci?c requests in Plaintiffs? prayer for relief require no factual

response from State Board Defendants. To the extent a response is deemed necessary, State Board
20

Defendants deny the allegations in Plaintiffs? prayer for relief and further aver that Plaintiffs are

not entitled to any relief from the answering State Board Defendants.

THE STATE BOARD DEFENDAN TS DENY, GENERALLY, EACH AND EVERY
ALLEGATION OF THE COMPLAINT NOT SPECIFICALLY ADMITTED, DENIED
OR OTHERWISE QUALIFIED ABOVE.

FURTHER DEFENSES

The State Board Defendants plead and reserve the right to assert any ?thher defenses
against Plaintiffs that may become apparent during the course of litigation and discovery.

WHEREFORE, State Board Defendants pray for the following relief:

1. That Plaintiffs? action against the State Board Defendants be dismissed, in its
entirety or in part;

2. That Plaintiffs have and recover nothing ?'om State Board Defendants in this

action;

3. That the costs, expenses and fees in this action be taxed against Plaintiffs;

4. For trial by jury on all issues so triable; and

5. For such other and further relief to the State Board Defendants as the Court deems
just and proper.

Respectfully submitted, this of January, 2020.

JOSHUA H. STEIN
Attorney General

41/

Olga E. Vysotskaya de Brito
Special Deputy Attemey General
N.C. State Bar No. 31846

Email: ovysotskaya@_ncdoj .gov

.Paul M. Cox
21

Special Deputy Attorney General
NC. State Bar No. 491-46
Email: pebx@nedoj .gov .

NC. Department of Justice
Post Of?ce Box 629
Raleigh, NC 27602

Phone: (919) 716-0185

Attorneys for the Stqte Board
Defendant;

CERTIFICATE OF SERVICE

 

The undersigned hereby certi?es that the forgoing STATE BOARD. 
MOTION TO DISMISS AND ANSWER was served on the parties to this action by depositing

a copy of same on the date shown below with the United States Mail, first-elass-postage prepaid,

and addressed as follows:
FORWARD JUSTICE ARNOLD PORTER
Daryl Atkinson KAYE SCHOLER LLP
Whitley Carpenter R. Stanton Jones
400 Main St., Suite 203 Elisabeth S. Theodore
Durham, NC 27701 Daniel F. Jacobson
m1@forwardjustice.org Graham White
601 Massachusetts Aye. NW
Penda Hair Washington, DC 20001?3 743
RC. Box 42521 amoldborternom

 

Washington, DC. 20015
phair@forwardjustice.org

Attorneys for Plaintz?s'

PROTECT DEMOCRACY PROJECT
Benjamin L. Berwick
15 Main Street, Suite 312
Watertown, MA 02472
. 
Brian D. Rabinovitz 
N.C. Department of Justice Farbod K. araji
Post Of?ce Box 629 138 College Street, 419,
Raleigh, NC 27602 Middletown, CT 06457
brabinovitz cdo'. ov nor;
Attorney for the Legislative Defendants

 

Stephanie Lla'nes
115 Broadway, 5th Floor,
New York, 


Attorneys Plaintiffs

This the [?gy ofJanuary, 2020.

Paul M. Cox
Special Deputy Attorney General

2.3

EXHIBIT 

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
WAKE COUNTY 19 CVS 15941

COMMUNITY SUCCESS 

e: at. 

Plaintiffs,
v. LEGISLATIVE 
MOTION TO DISMISS AND

TIMOTHY K. MOORE, IN HIS OFFICIAL ANSWER

CAPACITY OF SPEAKER OF THE NORTH
CAROLINA HOUSE OF
et al.,

Defendants.

 

NOW COME Defendants Timothy K. Moore, in his of?cial capacity as Speaker of the
North Carolina House of Representatives, and Philip E. Berger, in his of?cial capacity as President
Pro Tempore of the North Carolina Senate, (collectively, ?Legislative Defendants?), by and
through undersigned counsel, and hereby submit the following motion to dismiss and answer to
Plaintiffs' Amended Complaint:

MOTION TO DISMISS
N.C. R. Civ. P. 12(b)(6)

Legislative Defendants move this Court, pursuant to Rule 12(b)(6) of the North Carolina
Rules of Civil Procedure, to dismiss this action for failure to state a claim upon which relief can
be granted.
ANSWER TO AMENDED COMPLAINT
Legislative Defendants respond to the allegations in the numbered paragraphs of the

Amended Complaint as follows:

INTRODUCTION

1. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. To the extent a response is required, the allegations are denied.

2. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

3. Legislative Defendants admit that Article VI, 2, Clause 3 of the North Carolina
Constitution speaks for itself and requires no response from Legislative Defendants. Further, this
paragraph contains legal conclusions, arguments, and conclusory allegations to which no response
is required.

4. Legislative Defendants admit that Article I, 10 of the North Carolina Constitution
and Common Cause vLewts, No. 18 CVS 014001, 2019 WL 4569584 (N .C. Super. Sep. 03, 2019)
speak for themselves and require no response from Legislative Defendants. Further, this paragraph
contains legal conclusions, arguments, and conclusory allegations to which no response is
required. To the extent a resPonse is required, the allegations are denied.

5. Legislative Defendants admit that Article I, 19 of the North Carolina Constitution
and Stephenson v. Bartlett, 355 NC 354, 562 377 (2002) speak for themselves and require
no response ?om Legislative Defendants. Further, this paragraph contains legal conclusions,
arguments, and conclusory allegations to which no response is required. To the extent a response
is required, the allegations are denied.

6. Legislative Defendants admit that Article I, 12 and 14 of the North Carolina
Constitution and Common Cause Lewis, No. 18 CVS 014001, 2019 WL 4569584 (N.C. Super.
Sep. 03, 2019) speak for themselves and require no response from Legislative Defendants.
Further, this paragraph contains legal conclusions, arguments, and conclusory allegations to which

no response is required. To the extent a response is required, the allegations are denied.

7. Legislative Defendants admit that Article I, 1 1 of the North Carolina Constitution
Speaks for itself and requires no response ?'om Legislative Defendants. Further, this paragraph
contains legal conclusions, arguments, and conclusory allegations to which no response is
required. To the extent a response is required, the allegations are denied.

8. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. To the extent a response is required, the allegations are denied.
THE PARTIES

9. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

10. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

11. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

12. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

13. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

14. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

15. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

16. Legislative Defendants lack knowledge or information suf?cient to form a belief

as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

17. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.
18. Legislative Defendants lack knowledge or information suf?cient to form a belief

as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

19. Admitted.
20. Admitted.
21. Admitted.
22. Admitted.
23. Admitted.
24. Admitted.
25. Admitted.
26. Admitted.

JURISDICTION AND VENUE

27. Legislative Defendants admit that Articles 26 and 26A of Chapter 1 of the North
Carolina General Statutes speak for themselves and require no response from Legislative
Defendants. Further, this paragraph contains legal conclusions, arguments, and conclusory
allegations to which no response is required.

28. It is admitted that the venue is proper in the Wake County. Further, Legislative
Defendants admit that N.C. Gen. Stat. 1-2611 speaks for itself and requires no response from
Legislative Defendants.

29. Legislative Defendants admit that N.C. Gen. Stat. l-267.1 speaks for itself and
requires no response from Legislative Defendants. Further, this paragraph contains legal

conclusions, arguments, and conclusory allegations to which no response is required.

FACTUAL ALLEGATIONS

30. Legislative Defendants admit that the 1776 North Carolina Constitution speaks for
itself and requires no response from Legislative Defendants. Further, this paragraph contains legal
conclusions, arguments, and conclusory allegations to which no response is required. To the extent
a response is required the allegations of this paragraph are denied.

31. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. To the extent a response is required, Legislative Defendants lack
knowledge or information suf?cient to form a belief as to the truth or falsity of the allegations of
this paragraph, and the same are therefore denied.

32. Legislative Defendants admit that the constitutional and statutory provision
referenced in this paragraph speak for themselves and require no resPonse from Legislative
Defendants. Further, this paragraph contains legal conclusions, arguments, and conclusory
allegations to which no response is required. To the extent a response is required, Legislative
Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of
the allegations of this paragraph, and the same are therefore denied.

33. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

34. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

35. Legislative Defendants admit that in 1868 a North Carolina constitution convention
was called and North Carolina adopted a new constitution. The remaining allegations of this
paragraph are legal conclusions, arguments, and conclusory allegations to which no response is

required. To the extent a response is required, Legislative Defendants lack knowledge or

information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this
paragraph, and the same are therefore denied.

36. Legislative Defendants admit that the 1868 North Carolina Constitution speaks for
itself and requires no resmnse from Legislative Defendants. In addition, this paragraph contains
legal conclusions, arguments, and conclusory allegations to which no response is required. To the
extent a response is required, Legislative Defendants lack knowledge or information suf?cient to
form a belief as to the truth or falsity of the allegations of this paragraph, and the same are therefore
denied.

37. Legislative Defendants admit that in 1870, the General Assembly submitted to
voters a proposal for a constitutional convention and this proposal was rejected by the voters.
Legislative Defendants further admit that the Conservatives won control of the General Assembly
in 1870. Legislative Defendants lack knowledge or information suf?cient to form a belief as to
the truth or falsity of the remaining allegations of this paragraph, and the same are therefore denied.

38. Legislative Defendants admit that the General Assembly called a constitutional
convention in 1875 without submitting the question to voters. Legislative Defendants further
admit that several amendments to the 1898 North Carolina Constitution were adopted in 1875,
which speak for themselves and require no response from Legislative Defendants. The remaining
allegations of this paragraph are legal conclusions, arguments, and conclusory allegations to which
no response is required. To the extent a response is required, Legislative Defendants lack
knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
allegations of this paragraph, and the same are therefore denied.

39. Legislative Defendants admit that the 1875 Amendments to the 1868 North

Carolina Constitution speak for themselves and require no response from Legislative Defendants.

40. Legislative Defendants admit that the 1876 North Carolina law referenced in this
paragraph Speaks for itself and requires no response ?'om Legislative Defendants. Further,
Legislative Defendants lack knowledge or information suf?cient to form a belief as to the truth or
falsity of the remaining allegations of this Paragraph, and the same are therefore denied.

41. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

42. Legislative Defendants admit that the 1840 North Carolina law referenced in this
paragraph speaks for itself and requires no response from Legislative Defendants.

43. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

44. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

45. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

46. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this Paragraph, and the same are therefore denied.

47. Legislative Defendants admit that the North Carolina law referenced in this
paragraph speaks for itself and requires no response from Legislative Defendants. Further,
Legislative Defendants lack knowledge or information sufficient to form a belief as to the truth or
falsity of the remaining allegations of this paragraph, and the same are therefore denied.

48. This paragraph contains legal conclusions, arguments, and conclusory allegations

to which no response is required. To the extent a response is required, the allegations are denied.

49. Legislative Defendants admit that the Article VI, 2, Clause 3 of the North
Carolina Constitution speaks for itself and requires no response from Legislative Defendants.

50. Legislative Defendants admit that the North Carolina session law quoted in this
paragraph, 1971 N.C. Sess. Laws 902, speaks for itself and requires no response from Legislative
Defendants.

51. Legislative Defendants admit that the North Carolina session law quoted in this
paragraph, 1973 N.C. Sess. Laws 251, speaks for itself and requires no response from Legislative
Defendants.

S2. Legislative Defendants admit that N.C. Gen. Stat. 13-1 speaks for itself and
requires no response from Legislative Defendants.

53. Legislative Defendants admit that N.C. Gen. Stat. 13-1 speaks for itself and
requires no response ?'om Legislative Defendants.

54. Legislative Defendants admit the N.C. Gen. Stat. ISA-1372, -1342, and -l344
speak for themselves and require no response from Legislative Defendants. Further, this paragraph
contains legal conclusions, arguments, and conclusory allegations to which no response is
required. To the extent a response is required, the allegations are denied.

55. Legislative Defendants admit the N.C. Gen. Stat. ISA-1344 and State v. Sellars,
185 N.C. App. 726, 649 656 (2007) speak for themselves and require no response from
Legislative Defendants. Further, this paragraph contains legal conclusions, arguments, and
conclusory allegations to which no response is required. To the extent a response is required, the
allegations are denied.

56. Legislative Defendants lack knowledge or information suf?cient to form a belief

as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

57. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

58. Legislative Defendants admit that N.C. Gen. Stat. 13-1 speaks for itself and
requires no response from Legislative Defendants. In addition, this paragraph contains legal
conclusions, arguments, and conclusory allegations to which no response is required. To the extent
a response is required, the allegations are denied.

59. Legislative Defendants admit that N.C. Gen. Stat. 15A- 1343 speaks for itself and
requires no response from Legislative Defendants. Further, Legislative Defendants lack
knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
allegations of this paragraph, and the same are therefore denied.

60. Legislative Defendants admit that N.C. Gen. Stat. 7A-304 speaks for itself and
requires no response from Legislative Defendants. Further, Legislative Defendants lack
knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
allegations of this paragraph, and the same are therefore denied.

61. Legislative Defendants admit that N.C. Gen. Stat. ISA-1343 speaks for itself and
requires no response from Legislative Defendants. Further, Legislative Defendants lack
knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
allegations of this paragraph, and the same are therefore denied.

62. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

63. Legislative Defendants admit that N.C. Gen. Stat. 7A-304 and -305 speak for

themselves and require no response ?-om Legislative Defendants. Further, Legislative Defendants

lack knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
allegations of this paragraph, and the same are therefore denied.

64. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

65. Legislative Defendants admit that N.C. Gen. Stat. ISA-1342, -1343, and -1344
speak for themselves and require no response from Legislative Defendants.

66. Legislative Defendants lack knowledge or information sumcient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

67. Legislative Defendants admit that N.C. Gen. Stat. 163.82.14 speaks for itself and
requires no response ?om Legislative Defendants. In addition, this paragraph contains legal
conclusions, arguments, and conclusory allegations to which no response is required.

68. Legislative Defendants admit that State v. Hoskins, 242 N.C. App. 168 15
(2015) speaks for itself and requires no response ?'om Legislative Defendants. Further, Legislative
Defendants lack knowledge or information suf?cient to form a belief as to the truth or falsity of
the remaining allegations of this paragraph, and the same are therefore denied.

69. Legislative Defendants admit that N.C. Gen. Stat. ISA-1022 and AOC form
AOC-CR-SOO speak for themselves and require no response from Legislative Defendants.

70. Legislative Defendants admit that N.C. Gen. Stat. ISA-1368.4 speaks for itself
and requires no response from Legislative Defendants. In addition, this paragraph contains legal
conclusions, arguments, and conclusory allegations to which no response is required. To the extent
a response is required, Legislative Defendants lack knowledge or information suf?cient to form a
belief as to the truth or falsity of the remaining allegations of this paragraph, and the same are

therefore denied.

10

71. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth 0r falsity of the allegations of this paragraph, and the same are therefore denied.

72. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

73. The election records cited in this paragraph speak for themselves and require no
response ?'om Legislative Defendants. Further, Legislative Defendants lack knowledge or
information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this
paragraph, and the same are therefore denied.

74. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. To the extent a response is required, the allegations are denied.

75. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

76. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

77. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. The factual allegations of this paragraph are denied.

78. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

79. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

80. Legislative Defendants lack knowledge or information suf?cient to form a belief

as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

11

81. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

82. Legislative Defendants lack knowledge or information sufficient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

83. Legislative Defendants deny that the conditions for restoration of the right to vote
for persons convicted of felonies are unconstitutional or arbitrary. Further, this paragraph contains
legal conclusions, arguments, and conclusory allegations to which no response is required. To the
extent a response is required, the allegations are denied. In addition, Legislative Defendants lack
knowledge or information suf?cient to form a belief as to the truth or falsity of the remaining
allegations of this paragraph, and the same are therefore denied.

84. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

CLAIMS FOR RELIEF

COUNT ONE
Violation of North Carolina?s Free Elections Clause, Art. I, 10

85. Legislative Defendants incorporate by reference and reassert their responses to
Plainti?'s? allegations in all of the paragraphs of this Answer, as though ?illy set forth herein.

86. Legislative Defendants admit that Article I, 10 of the North Carolina Constitution
speaks for itself and requires no response from Legislative Defendants.

87. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

88. Legislative Defendants lack knowledge or information suf?cient to form a belief

as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

12

89. Legislative Defendants lack knowledge or information suf?cient to form a belief
as to the truth or falsity of the allegations of this paragraph, and the same are therefore denied.

90. Legislative Defendants admit that the North Carolina Constitutional provisions
referenced in this paragraph and N.C. State Bar v. DuMont, 304 N.C. 627, 286 89 (1982)
speak for themselves and require no response ?om Legislative Defendants. Legislative
Defendants lack knowledge or information suf?cient to form a belief as to the truth or falsity of
the remaining allegations of this paragraph, and the same are therefore denied.

91. Legislative Defendants admit that Common Cause Lewis, No. 18 CVS 014001,
2019 WL 4569584 (N .C. Super. Sep. 03, 2019) speaks for itself and requires no response from
Legislative Defendants. In addition, this paragraph contains legal conclusions, arguments, and

conclusory allegations to which no response is required.

92. Legislative Defendants admit that Blankenship v. Bartlett, 363 N.C. 518 (2009)
speaks for itself and requires no response from Legislative Defendants. In addition, this paragraph
contains legal conclusions, arguments, and conclusory allegations to which no response is
required.

93. Legislative Defendants deny that N.C. Gen. Stat. 13-1 violates Article I, 10 of
the North Carolina Constitution. The remaining allegations are denied.

94. Legislative Defendants deny that N.C. Gen. Stat. 13-1 violates Article I, 10 of
the North Carolina Constitution. Further, this paragraph contains legal conclusions, arguments,
and conclusory allegations to which no response is required. To the extent a response is required,
the remaining allegations are denied. In addition, Legislative Defendants lack knowledge or

information suf?cient to form a belief as to the truth or falsity of the remaining allegations of this

13

paragraph, and the same are therefore denied. Legislative Defendants speci?cally deny that N.C.
Gen. Stat. 13-1 prevents ?the will of the people?the majority? ?'om prevailing.

95. Legislative Defendants deny that N.C. Gen. Stat. 13-1 violates Article I, 10 of
the North Carolina Constitution. Further, this paragraph contains legal conclusions, arguments,
and conclusory allegations to which no response is required. The factual allegations of this
paragraph are denied.

96. Legislative Defendants deny that N.C. Gen. Stat. 13?1 violates Article I, 10 of
the North Carolina Constitution. The remaining allegations of this paragraph are legal conclusions,
arguments, and conclusory allegations to which no response is required.

COUNT TWO
Violation of the North Carolina Constitution?s
Equal Protection Clause, Art. I, 19

97. Legislative Defendants incorporate by reference and reassert their responses to
Plaintiffs? allegations in all of the paragraphs of this Answer, as though fully set forth herein.

98. Legislative Defendants admit that Article I, 19 of the North Carolina Constitution
speaks for itself and requires no response from Legislative Defendants.

99. Legislative Defendants admit that Article I, 19 of the North Carolina Constitution
and Stephenson v. Bartlett, 355 N.C. 354, 562 377 (2002) speak for themselves and require
no response from Legislative Defendants. Further, this paragraph contains legal conclusions,
arguments, and conclusory allegations to which no response is required. To the extent a response
is required, the allegations are denied.

100. Legislative Defendants deny that N.C. Gen. Stat. 13-1 violates Article I, 19 of

the North Carolina Constitution.

14

101. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. The factual allegations of this paragraph are denied.

102. This paragraph contains legal conclusions, and conclusory allegations
to which no response is required. The factual allegations of this paragraph are denied.

103. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. The factual allegations of this paragraph are denied.

104. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. The factual allegations of this paragraph are denied.

105. Legislative Defendants deny that N.C. Gen. Stat. 13-1 violates Article I, 19 of
the North Carolina Constitution. The remaining allegations of this paragraph are legal conclusions,
arguments, and conclusory allegations to which no response is required.

COUNT THREE
Violation of North Carolina Constitution?s
Freedom of Speech and Assembly Clauses, Art. I, 12 14

106. Legislative Defendants incorporate by reference and reassert their responses to
Plaintiffs? allegations in all of the paragraphs of this Answer, as though fully set forth herein.

107. Legislative Defendants admit that Article I, 12 of the North Carolina Constitution
speaks for itself and requires no response ?'om Legislative Defendants.

108. Legislative Defendants admit that Article I, 14 of the North Carolina Constitution
speaks for itself and requires no response from Legislative Defendants.

109. Legislative Defendants admit that Common Cause Lewis, No. 18 CVS 014001,
2019 WL 4569584 (N .C. Super. Sep. 03, 2019) speaks for itself and requires no response from
Legislative Defendants. In addition, this paragraph contains legal conclusions, arguments, and

conclusory allegations to which no response is required.

15

110. Legislative Defendants admit that Common Cause Lewis, No. 18 CVS 014001,
2019 WL 4569584 (N.C. Super. Sep. 03, 2019) speaks for itself and requires no re5ponse from
Legislative Defendants. In addition, this paragraph contains legal conclusions, arguments, and
conclusory allegations to which no response is required.

111. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. The factual allegations of this paragraph are denied.

112. This paragraph contains legal conclusions, arguments, and conclusory allegations
to which no response is required. The factual allegations of this paragraph are denied.

113. Legislative Defendants deny that N.C. Gen. Stat. 13-] violates Article I, 12 or
14 of the North Carolina Constitution. The remaining allegations of this paragraph are legal
conclusions, arguments, and conclusory allegations to which no response is required.

COUNT FOUR
Violation of North Carolina Constitution?s
Ban on Property Quali?cations, Art. I, 11

114. Legislative Defendants incorporate by reference and reassert their responses to
Plaintiffs? allegations in all of the paragraphs of this Answer, as though fully set forth herein.

1 15. Legislative Defendants admit that Article I, 1 1 of the North Carolina Constitution
speaks for itself and requires no response ?'om Legislative Defendants.

116. Legislative Defendants deny that N.C. Gen. Stat. 13-1 violates Article I, 11 of
the North Carolina Constitution. Further, Legislative Defendants admit that N.C. Gen. Stat. 
13-1, ISA-1342, -1343, ?1344, Reiter v. Sonotone Corp, 442 U.S. 330,338 (1979), and State v.
Robinson, 248 N.C. 282, 103 376 (1958) speak for themselves and require no response

from Legislative Defendants. Except as expressly admitted, denied.

16

117. Legislative Defendants deny that NC. Gen. Stat. 13-1 violates Article I, 11 of
the North Carolina Constitution. Further, this paragraph contains legal conclusions, arguments,
and conclusory allegations to which no response is required. To the extent a response is required,

the allegations are denied.

LEGISLATIVE DEFENDAN TS DENY, GENERALLY, EACH AND EVERY
ALLEGATION OF THE COMPLAINT NOT HEREINBEFORE SPECIFICALLY
DENIED, OR OTHERWISE QUALIFIED.

FURTHER DEFENSES
Legislative Defendants plead and reserve the right to assert any further defenses against
Plaintiffs that may become apparent during the course of litigation and discovery.
PRAYER FOR RELIEF
WHEREFORE, Legislative Defendants rmpect?rlly pray that the Court:
1. Dismiss Plaintiffs? action;
2. Deny Plaintiffs all relief sought by them;
3. Tax the costs, expenses, and fees in this action against Plaintiffs; and

4. Grant such other and ?lrther relief to Legislative Defendants as the Court deems

just and proper.
Respectfully submitted, this 1/8; da ay of January, 2020.

JOSHUA H. STEIN
Attorney General

Bnan??novitz? 

Special Deputy Attorney General
N. C. State Bar No. 41538

N.C. Dept. of Justice

P.O. Box 629

Raleigh, NC 27602

Telephone: (919) 716-6863

Fax: (919) 716-6759

17

18

Email: 

 

Attorney for Legislative Defendants

CERTIFICATE OF SERVICE

The undersigned hereby certi?es that the forgoing LEGISLATIVE 

MOTION TO DISMISS AND ANSWER was served on the parties by electronic mail and by

depositing a copy of same on the date shown below with the United States Mail, ?rst-class postage

prepaid, and addressed as follows:

FORWARD JUSTICE
Daryl Atkinson
Whitley Carpenter
400 Main St., Suite 203
Durham, NC 27701

daryl@forwardiustice.org

Penda Hair
P.O. Box 42521
Washington, DC. 20015

phaig@fgrwardiustice.og
Attorneys for Plaintwis

Olga E. Vysotskaya de Brito
Paul M. Cox
N.C. Department of Justice
Post Of?ce Box 629
Raleigh, NC 27602

Email: ovysotskaya?ncdoigov
pcox@ncdoj .gov

Attorneys for the State Board Defendants

31F
This the? day of January, 2020.

ARNOLD PORTER
KAYE SCHOLER LLP
R. Stanton Jones
Elisabeth S. Theodore
Daniel F. Jacobson
Graham White
601 Massachusetts Ave. NW
Washington, DC 20001-3 743


PROTECT DEMOCRACY PROJECT
Benjamin L. Berwick
15 Main Street, Suite 312
Watertown, MA 02472
ben.berwick .0111:-

 

Farbod K. Faraji
138 College Street, 419,
Middletown, CT 06457
farbod.fara'i rotectdemocrac .or

Stephanie Llanes
115 Broadway, 5th Floor,
New York, NY 10006


 

Attorneys for Plaintz?s

 

1:54"-
Brian D. Rabinovitz 
Special Deputy Attorney General

EXHIBIT 

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

. 9 SUPERIOR COURT DIVISION
WAKE COUNTY 19CVS 15941
COMMUNITY SUCCESS INI -
e, 01,, tiifmlia it I
5' I, 5.) 
Plaintiffs, - 
v. as?
LEGISLATIVE 

TIMOTHY K. MOORE, IN HIS OFFICIAL NOTICE OF WITHDRAWAL 0F
CAPACITY OF SPEAKER OF THE NORTH MOTION To DISMISS

CAROLINA HOUSE OF
er al. 

Defendants.


a


 

NOW COME Defendants Timothy K. Moore, in his Of?cial capacity as Speaker of the
North Carolina House of Representatives, and Philip E. Berger, in his of?cial capacity as President
Pro Tempore of the North Carolina Senate, (collectively, ?Legislative Defendants?), by and
through undersigned counsel, and hereby give notice to the Court of the withdrawal of their Motion
to Dismiss, which was ?led together with their Answer to the Amended Complaint in this matter

on January 21, 2020.
Respectfully submitted, this 29th day of January, 2020.

JOSHUA H. STEIN
Atto ey General



Brian D. Rabinovitz

Special Deputy Attorney General
N.C. State Bar NO. 41538

N.C. Dept. of Justice

P.O. Box 629

Raleigh, N.C. 27602

Telephone: (919) 716-6863

Fax: (919) 716-6759

Email: brabinovitz@ncdoj.gov
Attorney for Legislative De?endants

CERTIFICATE OF SERVICE
The undersigned hereby certi?es that the forgoing document was served on the parties to
this action via email, pursuant to an agreement among the parties for electronic service, and was

addressed to the following counsel:

 

 

FORWARD JUSTICE ARNOLD PORTER
Daryl Atkinson KAYE SCHOLER LLP
Whitley Carpenter R. Stanton Jones
400 Main St., Suite 203 Elisabeth S. Theodore
Durham, NC 27701 Daniel F. Jacobson
darylgagfomardiusticemg Graham White
601 Massachusetts Ave. NW
Penda Hair Washington, DC 20001-3743
P.O. Box 42521 stanton.Iones s: smoldportemom
Washington, DC. 20015
Dhair@forwardiustice.org PROTECT DEMOCRACY PROJECT
Benjamin L. Berwick
Attorneys for Platnti?fs 15 Main Street, Suite 312
Watertown, MA 02472

ben.berw1?u nrotectdemocram .or-s
Olga E. Vysotskaya de Brito

Paul M. Cox Farbod K. Faraji
NC. Department of Justice 138 College Street, 419,
Post Of?ce Box 629 Middletown, CT 06457
Raleigh, NC 27602 
Email: oyysotskaya@ncdoi.gov
Stephanie Llanes
115 Broadway, 5th Floor,
Attorneys for the State Board Defendants New York, NY 10006

ste hanie.llanes rotectdemocrac .or

 

Attorneys for Plaintt?s'

This the 29th day of January, 2020.



Brian D. Rabinovitz
Special Deputy Attorney General

EXHIBIT 

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
WAKE COUNTY 19 15941
COMMUNITY SUCCESS INI
JUSTICE SERVED NC, INC. 393%?) 3 "2
CAROLINA STATE CONFERENCE a C:
THE NAACP, C) ?3
Plainti??s, THE STATE BOARD
v. NOTICE OF
WITHDRAWAL OF MOTION
TIMOTHY K. MOORE, IN HIS OFFICIAL TO DISMISS
CAPACITY OF SPEAKER OF THE 
NORTHCAROLINA HOUSE OF 
et al. 

Defendants. 


 

NOW COME Defendants the North Carolina State Board of Elections; DAMON
CIRCOSTA, in his Of?cial capacity as Chairman Of the North Carolina State Board of Elections;
STELLA ANDERSON, in her o?icial capacity as Secretary of the North Carolina State Board of
Elections; KENNETH RAYMOND, in his of?cial capacity as a member of the North Carolina
State Board of Elections; JEFF CARMON, in his of?cial capacity as a member of the North
Carolina State Board of Elections; and DAVID C. BLACK, in his of?cial capacity as a member
of the North Carolina State Board of Elections, and hereby give notice to the Court of the
withdrawal of their Motion to Dismiss, which was ?led together with their Answer to the
Amended Complaint in this matter on January 16, 2020.-

Respectfully submitted, this 29th day Of January, 2020.

JOSHUA H. 
Attorney General



fl?aul M. Cox

Special Deputy Attorney General
N.C. State Bar No. 49146
Email: pcox@ncdoj.gov

Olga E. Vysotskaya de Brito
Special Deputy Attorney General
N.C. State Bar No. 31846

Email: ovysotskaya@ncdoj.gov

N.C. Department of Justice
Post Of?ce Box 629
Raleigh, NC 27602

Phone: (919) 716-0185

Counselfor the State Board
Defendants

CERTIFICATE OF SERVICE
The undersigned hereby certi?es that the forgoing document was served on the parties to

this action via email, pursuant to an agreement among the parties for electronic service, and was

addressed to the following counsel:
FORWARD JUSTICE ARNOLD PORTER
Daryl Atkinson KAYE SCHOLER LLP
Whitley Carpenter R. Stanton ones"
400 Main St., Suite 203 Elisabeth S. Theodore"
Durham, NC 27701 Daniel F. Jacobson?
Graham White"
601 Massachusetts Ave. NW
Penda Hair? Washington, DC 20001-3743
P.0. Box 42521 stanton.iones@goldporter.com
Washington, DC. 20015
phair@forwardiustice.org PROTECT DEMOCRACY PROJECT
Benjamin L. Berwick?
Attorneys for Plaintz?s' 15 Main Street, Suite 312

Watertown, MA 02472


 

Brian D. Rabinovitz

N.C. Department of Justice Farbod K. Faraji?
Post Of?ce Box 629 77 Pearl Street
Raleigh, NC 27602 Middletown, CT 06459



Stephanie Llanes"I
115 Broadway, 5th Floor,
New York, NY 10006



Attorneys for Plainn?fs

Attorney for the Legislative Defendants

This the 29th day of January, 2020.


Paul M. Cox ?r
Special Deputy Attorney General

 

EXHIBIT 

STATE OF NORTH CAROLINA . IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
COUNTY OF WAKE .
- No. 19-cv-1594l
2915 SAN CONSENT MOTION FORA

TIMOTHY K. MOORE. IN HIS OFFICIAL CONTINUANCE

CAPACITY OF SPEAKER OF THE NORTH
CAROLINA HOUSE OF
REPRESENTATIVES, et al.,

Defendants.

 

Pursuant to Local Rule 8.2, Plaintiffs ?le this Consent Motion for a Continuance of the
hearing scheduled in this matter for February 4, 2019 on Plaintitfs? Motion for Expedited
Scheduling Order and Case Management Order (the ?Motion to Expedite?).

l. Plaintiffs ?led the Complaint in this action on November 20th, 2019, challenging
North Carolina?s statutory scheme disenfranchising individuals while they remain on probation,
parole or other supervision, see N.C. Gen. Stat. 13-1. Defendants are the Speaker of the state
House and the President Pro Tempore Of the state Senate (together, ?Legislative Defendants?),
and the State Board of Elections and its members (collectively, ?State Board Defendants?).

2. 0n the same day Plaintiffs ?led their Complaint, November 20, 2019, Plaintiff?s
?led the Motion to Expedite. Plaintiffs subsequently ?led a calendar request, and the Motion to

Expedite has been scheduled for a hearing before a single judge on FebrLIary 4, 2020.

3. On January 16, 2020 and January 21, 2020, the State Board Defendants and
Legislative Defendants respectively ?led answers to Plaintiffs' amended complaint, along with
motions to dismiss under Rule 

4. On January 29, 2020, the State Board Defendants and Legislative Defendants
both withdrew their motions to dismiss.

5. The parties all agree that this matter, which involves a facial challenge to the
constitutionality of legislation, is ?t and and ready for the appointment of a three?judge panel
pursuant to N.C. Gen. Stat. 

6. Because the case is ripe for appointment of a three-judge panel, the parties agree
that Plaintiffs? Motion to Expedite should be heard and decided by the three-judge panel that is
appointed, rather than a single judge at the February 4 hearing.

7. The parties accordingly seek a continuance of the Motion to Expedite until the
earliest date at which the three-judge panel, once appointed, is able to hear the motion.

8. This case has not previously been continued.

WHEREFORE, Plaintiffs request that the Court grant a continuance of the hearing on

Plainti?'s? Motion to Expedite.

Respeet?zlly submitted this the 29th day of January, 2020.

FORWARD JUSTICE

ls/Dunl Atkinson 
Daryl Atkinson (NC Bar 39030)
Whitley Carpenter (NC Bar 49657)
400 Main St., Suite 203
Durham, NC 27701
daryl@fonvardjustice.org

Penda Hair"

P.0. Box 42521
Washington, DC. 20015
phair@forwardjustioe.org
Counsel for Plairm?s

"Pro Hac vice motion ?rthcoming

ARNOLD PORTER
KAYE SCHOLER LLP

R. Stanton Jones"

Elisabeth S. Theodore"

Daniel F. JacobsonIll

Graham WhiteIll

601 Massachusetts Ave. NW
Washington, DC 20001-3743
(202) 942-5000
stantonjones@arnoldporter.com

PROTECT DEMOCRACY PROJECT

Benjamin L. Berwick?

15 Main Street, Suite 312
Watertown, MA 02472

(202) 579-4582


Farbod K. Faraji"

77 Pearl Street

Middletown, CT 06459

(202) 579-4582


Stephanie Llanes"I

115 Broadway, 5th Floor,

New York, NY 10006

(202) 579-4582


Counsel for Plainnfis

Pro hac vice motions pending

CERTIFICATE OF 

I hereby certify that I have this day served a copy of the foregoing to counsel for
Defendants via e-rnall, addressed to the following persons at the following addresses which are

the last addresses known to me:

Brian D. Rabinovitz

114 W. Edenton St.
Raleigh, NC 27603
BRabinovitz@ncdoj.gov

Counsel for Legislative Defendants

This the 27th day of January, 2020.

Paul M. Cox

Olga Vysotskaya

114 W. Edenton St.
Raleigh, NC 27603
pcox@ncdoj.gov
0Vysotskaya@ncdoj.gov

CaunseZ?Jr State Board Defendants

/S/Dt1n'! Atkins-on
Daryl Atkinson (NC Bar 39030)

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

COUNTY OF WAKE
No. 19-cv-15941

COMMUNITY SUCCESS INITIATIVE, et a1.,
Plaintiffs,
ORDER ON CONSENT

TIMOTHY K. MOORE, IN HIS OFFICIAL MOTION FOR A CONTINUANCE
CAPACITY OF SPEAKER OF THE NORTH

CAROLINA HOUSE OF

REPRESENTATIVES, et a1.,

 

Defendants.

The Court, having considered Plaintiffs? Consent Motion for a Continuance of the
hearing scheduled on February 4, 2020 on Plain??'s? Motion for Expedited Scheduling Order

and Case Management Order, and for good cause shown, hereby GRANTS the motion for a

continuance.

So ORDERED this day of January, 2020.

 

 

EXHIBIT 

Jacobson, Daniel
From:
Sent:
To:
Cc:

Subject:

Cox, Paul <pcox@ncdoj.gov>
Wednesday, January 29, 2020 4:43 PM
Jacobson, Daniel; Jones, Stanton
Rabinovitz, Brian; Vysotskaya, Olga; Collier, Pamela;
zzz.External.wcarpenter@forwardjustice.org;
zzz.External.ben.berwick@protectdemocracy.org; Theodore, Elisabeth; White, Graham;
zzz.External.daryl@forwardjustice.org;
zzz.External.farbod.faraji@protectdemocracy.org;
zzz.External.phair@forwardjustice.org;
zzz.External.stephanie.llanes@protectdemocracy.org
RE: Community Success Initiative v. Moore - Legislative Defendants' Answer and MTD

External E-mail
Hey Dan,
It looks like your email crossed with Pam’s, serving the filed versions of all the papers. So you should be able to email
the TCA re the continuance. And yes, I can email Kellie about the withdrawal of the MTDs and that the parties agree
that the case is ready for assignment to a three-judge panel.
Paul

From: Jacobson, Daniel <Daniel.Jacobson@arnoldporter.com>
Sent: Wednesday, January 29, 2020 4:31 PM
To: Cox, Paul <pcox@ncdoj.gov>; Jones, Stanton <Stanton.Jones@arnoldporter.com>
Cc: Rabinovitz, Brian <BRabinovitz@ncdoj.gov>; Vysotskaya, Olga <OVysotskaya@ncdoj.gov>; Collier, Pamela
<pcollier@ncdoj.gov>; wcarpenter@forwardjustice.org; ben.berwick@protectdemocracy.org; Theodore, Elisabeth
<Elisabeth.Theodore@arnoldporter.com>; White, Graham <Graham.White@arnoldporter.com>;
daryl@forwardjustice.org; farbod.faraji@protectdemocracy.org; phair@forwardjustice.org;
stephanie.llanes@protectdemocracy.org
Subject: RE: Community Success Initiative v. Moore - Legislative Defendants' Answer and MTD
Hey Paul, just let us know when everything’s filed and I can then email the TCA the continuance request. You guys will
email about the withdrawal of the MTDs and the parties’ agreement that the case is ready for assignment to a threejudge panel right?
_______________
Daniel Jacobson
Senior Associate
Arnold & Porter
601 Massachusetts Ave., NW
Washington   District of Columbia 20001-3743
T: +1 202.942.5602
Daniel.Jacobson@arnoldporter.com   www.arnoldporter.com

From: Cox, Paul <pcox@ncdoj.gov>
Sent: Wednesday, January 29, 2020 1:46 PM
1

 Exhibit I

STATE OF NORTH CAROLINA

COUNTY OF WAKE 

. 
- vl

COMMUNITY SUCCESS ntldumve, el al.,

Plaintiffs,
v.

TIMOTHY K. MOORE. IN HIS OFFICIAL
CAPACITY OF SPEAKER OF THE NORTH
CAROLINA HOUSE OF
REPRESENTATIVES, ct al..



 

 

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

No. l9-cv-l 5941

MOTION AND BRIEF IN
SUPPORT OF MOTION FOR SUNIMARY
JUDGMENT OR IN THE ALTERNATIVE

A PRELIMINARY INJUNCTION

 

TABLE OF CONTENTS
Page
TABLE OF CONTENTS .............................................................................................................i
TABLE OF AUTHORITIES ......................................................................................................iv
INTRODUCTION ...................................................................................................................... 1
BACKGROUND ........................................................................................................................ 4
A.

North Carolina’s Felony Disenfranchisement Scheme .......................................... 4
Felony Disenfranchisement Has Long Been Used in North
Carolina to Suppress the Political Power of African Americans ................ 4
The General Assembly Has Chosen to Prolong Disenfranchisement
Through Probation, Parole, and Post-Release Supervision ........................ 9
N.C.G.S. § 13-1 Conditions the Right to Vote on the Payment of
Court Costs, Fees, and Restitution .......................................................... 13
N.C.G.S. § 13-1 Currently Disenfranchises More than 56,516
Individuals Living in North Carolina Communities, a Grossly
Disproportionate Number of Whom Are African American .................... 15

B.

Procedural History ............................................................................................. 16

LEGAL STANDARDS ............................................................................................................. 18
ARGUMENT ............................................................................................................................ 18
I.

The North Carolina Constitution’s Felony Disenfranchisement Clause Does Not
Immunize the General Assembly’s Rights Restoration Statutes from Compliance
With Other Constitutional Guarantees............................................................................ 18

II.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North Carolina
Communities Violates the Free Elections Clause ........................................................... 21
A.

The Free Elections Clause Mandates That Elections in North Carolina
Ascertain the Will of the People, and Precludes Laws That Unduly
Interfere with That Mandate ............................................................................... 22

B.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Infringes Upon the Guarantee of Free Elections
That Reflect the Will of the People..................................................................... 25

 C.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Cannot Satisfy Strict Scrutiny ........................................ 29
Defendants Have Not Identified Any Compelling Government
Interest That the Challenged Scheme Is Narrowly Tailored to
Advance ................................................................................................. 30
The State’s Compelling Interest Is in Restoring Voting Rights................ 36

III.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North Carolina
Communities Violates North Carolina’s Equal Protection Clause .................................. 38
A.

North Carolina’s Equal Protection Clause Provides Greater Protection for
Voting Rights Than its Federal Counterpart ....................................................... 39

B.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Triggers Strict Scrutiny Under Article I, § 19 ................. 41
The Law Denies Substantially Equal Voting Power to Individuals
Living in North Carolina Communities on Probation, Parole, or
Post-Release Supervision ........................................................................ 42
The Law Provides for Unequal Voting Power Among Individuals
with Felony Convictions Living in North Carolina Communities ............ 43
The Law Deprives African Americans Living in North Carolina
Communities of Substantially Equal Voting Power................................. 43
The Law Denies Substantially Equal Voting Power Based on
Wealth .................................................................................................... 46

C.
IV.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Cannot Pass Strict Scrutiny Under Article I, § 19 ........... 48

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North Carolina
Communities Violates North Carolina’s Freedom of Speech and Assembly
Clauses .......................................................................................................................... 48
A.

Irrespective of Federal Law, Voting Is a Form of Protected Speech and
Association Under the North Carolina Constitution ............................................ 49

B.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Violates Article I, §§ 12 and 14 ...................................... 50

V.

N.C.G.S. § 13-1’s Conditioning the Right to Vote on Financial Payments Violates
the North Carolina Constitution’s Ban on Property Qualifications ................................. 52

VI.

If Necessary, the Equities Strongly Favor a Preliminary Injunction................................ 53

ii

 A.

Plaintiffs Are Likely to Succeed on the Merits ................................................... 54

B.

Plaintiffs Will Suffer Irreparable Harm Absent an Injunction ............................. 54

C.

The Balance of Equities Strongly Favors a Preliminary Injunction ..................... 56

CONCLUSION ......................................................................................................................... 57

iii

 TABLE OF AUTHORITIES
Page(s)
Cases
A.E.P. Indus., Inc. v. McClure,
308 N.C. 393, 302 S.E.2d 754 (1983) ............................................................................ 18, 56
Action NC v. Strach,
216 F. Supp. 3d 597 (M.D.N.C. 2016) ........................................................................... 54. 56
Blankenship v. Bartlett,
363 N.C. 518, 681 S.E.2d 759 (2009) ............................................................................ 39, 40
Cipriano v. City of Houma,
395 U.S. 701 (1969) ............................................................................................................ 42
City of Greensboro v. Guilford Cty. Bd. of Elections,
120 F. Supp. 3d 479 (M.D.N.C. 2015) ................................................................................. 55
Common Cause v. Lewis,
No. 18 CVS 014001, 2019 WL 4569584 (N.C. Super. Sep. 03, 2019)........................... passim
Corum v. Univ. of N..C through Bd. of Governors,
330 N.C. 761, 413 S.E.2d 276 (1992) .................................................................................. 49
DeBruhl v. Mecklenburg Cty. Sheriff’s Office,
259 N.C. App. 50, 815 S.E.2d 1 (2018) ............................................................................... 52
Evans v. Cowan,
122 N.C. App. 181, 468 S.E.2d 575, aff’d, 477 S.E.2d 926 (N.C. 1996) .............................. 49
Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................................................................................ 32
Harper v. Lewis,
19 CVS 12667, Order on Inj. Relief (N.C. Super. Oct. 28, 2019) ................................... 24, 54
Harper v. Va. State Bd. of Elections,
383 U.S. 663 (1966) ...................................................................................................... 46, 48
Hest Techs., Inc. v. State ex rel. Perdue,
366 N.C. 289, 749 S.E.2d 429 (2012) .................................................................................. 51
Holmes v. Moore,
840 S.E.2d 244 (N.C. Ct. App. 2020) ........................................................................... passim

iv

 Jones v. DeSantis,
410 F. Supp. 3d 1284 (N.D. Fla. 2019) .......................................................................... 19, 32
Jones v. Governor of Fla.,
950 F.3d 795 (11th Cir. 2020) ........................................................................... 35, 46, 47, 48
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) ............................................................................................................ 52
Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621 (1969) ............................................................................................................ 42
League of Women Voters of N.C. v. North Carolina,
769 F.3d 224 (4th Cir. 2014) ............................................................................................... 54
League of Women Voters v. Commonwealth,
178 A.3d 737 (Pa. 2018)................................................................................................ 23, 25
Lewis v. Rapp,
220 N.C. App. 299, 725 S.E.2d 597 (2012).......................................................................... 50
M.L.B. v. S.L.J.,
519 U.S. 102 (1996) ............................................................................................................ 48
McCullen v. Daughtry,
190 N.C. 215, 129 S.E. 611 (1925) ...................................................................................... 52
McDonald v. Morrow,
119 N.C. 666, 26 S.E. 132 (1896) .................................................................................. 20, 56
N.C. State Bar v. DuMont,
304 N.C. 627, 286 S.E.2d 89 (1982) .................................................................................... 24
N.C. State Bd. of Educ. v. State,
255 N.C. App. 514, 805 S.E.2d 518 (2017).......................................................................... 19
N.C. State Conf. of NAACP v. Cooper,
2019 WL 7372980 (M.D.N.C. Dec. 31, 2019) ..................................................................... 54
N.C. State Conf. of the NAACP v. N.C. State Bd. of Elections,
2016 WL 6581284 (M.D.N.C. Nov. 4, 2016)....................................................................... 55
Northampton Cnty. Drainage Dist. No. One v. Bailey,
326 N.C. 742, 392 S.E.2d 352 (1990) ...................................................................... 29, 30, 41
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ........................................................................................................ 50

v

 People ex rel. Van Bokkelen v. Canaday,
73 N.C. 198 (1875).................................................................................................. 24, 29, 49
Poindexter v. Strach,
324 F. Supp. 3d 625 (E.D.N.C. 2018) .................................................................................. 54
Reiter v. Sonotone Corp.,
442 U.S. 330 (1979) ............................................................................................................ 52
Roberts v. Cannon,
20 N.C. 398, 4 Dev. & Bat. (Orig. Ed.) ................................................................ 1, 30, 52, 53
Sessions v. Columbus Cty.,
214 N.C. 634, 200 S.E. 418 (1939) ...................................................................................... 19
Smith v. Keator,
21 N.C. App. 102, 203 S.E.2d 411 (1974) ........................................................................... 32
State ex rel. Quinn v. Lattimore,
120 N.C. 426, 26 S.E. 638 (1897) ........................................................................................ 21
State v. Hoskins,
242 N.C. App. 168, 775 S.E.2d 15 (2015) ........................................................................... 15
State v. Petersilie,
334 N.C. 169, 432 S.E.2d 832 (1993) .................................................................................. 51
Stephenson v. Bartlett,
355 N.C. 354, 562 S.E.2d 377 (N.C. 2002) ................................................................... passim
Texfi Indus., Inc. v. City of Fayetteville,
301 N.C. 1, 269 S.E.2d 142 (1980) ............................................................................ 1, 30, 31
Texfi Indus., Inc. v. City of Fayetteville,
44 N.C. App. 268, 261 S.E.2d 21 (1979) ............................................................................. 52
Triangle Leasing Co. v. McMahon,
327 N.C. 224, 393 S.E.2d 854 (1990) ............................................................................ 18, 54
Constitutional Provisions, Statutes, and Rules
N.C. Const. art. I, § 10 ........................................................................................................ 22, 23
N.C. Const. art. I, § 11 ........................................................................................................ 52, 53
N.C. Const. art. I, § 12 ........................................................................................................ 48, 50
N.C. Const. art. I, § 14 ........................................................................................................ 48, 50

vi

 N.C. Const. art. I, § 19 ....................................................................................................... passim
N.C. Const. art. VI, § 2, cl. 3 .............................................................................................. passim
N.C.G.S. § 7A-304(a)(1)-(13) ................................................................................................... 14
N.C.G.S. § 13-1 ................................................................................................................. passim
N.C.G.S. § 15A-1340.12 ........................................................................................................... 36
N.C.G.S. § 15A-1340.17 ............................................................................................................. 8
N.C.G.S. § 15A-1343(b)(6) ....................................................................................................... 14
N.C.G.S. §§ 15A-1343(b)(9) ............................................................................................... 13, 46
N.C.G.S. § 15A-1343(b)(10) ..................................................................................................... 14
N.C.G.S. § 15A-1343(c1) .......................................................................................................... 14
N.C.G.S. § 15A-1368.4(d) & (f) ................................................................................................ 15
N.C.G.S. § 163-275 ..................................................................................................................... 8
N.C. R. Civ. P. 56(c) ................................................................................................................. 18
1840 N.C. Sess. Laws 68, Ch. 36............................................................................................. 4, 7
1876 N.C. Sess. Laws, Ch. 275, § 10. .......................................................................................... 7
1876 N.C. Sess. Laws, Ch. 275, § 62. .......................................................................................... 7
1899 N.C. Sess. Laws 139, Ch. 44, § 1 ........................................................................................ 9
1899 N.C. Sess. Laws 658, 681, Ch. 507, § 72 ............................................................................ 9
1905 N.C. Sess. Laws 553-554, Ch. 547, §§ 1-2 ........................................................................ 10
Other Authorities
Jack Healy, Arrested, Jailed and Charged With a Felony. For Voting., N.Y.
Times, Aug. 2, 2018 ............................................................................................................ 33
George H. Jones, Convergent Forces: Immediate Causes of the Revolution of
1688 in England 75-78 (1990) ............................................................................................. 22
Grey S. De Krey, Restoration and Revolution in Britain: A Political History of the
Era of Charles II and the Glorious Revolution 241 (2007) ................................................... 23

vii

 John V. Orth, North Carolina Constitutional History,
70 N.C. L. Rev. 1759, 1781 (1992) ........................................................................ 5, 6, 22, 50
J.R. Jones, The Revolution of 1688 in England 148 (1972) ........................................................ 22
Notes from the Capital, N.Y. Times, Oct. 11, 1875 ..................................................................... 7
Pippa Holloway, Living in Infamy: Felon Disenfranchisement and the History of
American Citizenship 6 (2014) ...................................................................................... 4, 7, 8
Steven F. Miller et al., Between Emancipation and Enfranchisement: Law and the
Political Mobilization of Black Southerners, 1865-1867, 70 Chi.-Kent L. Rev.
1059 (1995) ......................................................................................................................... 24
William Mabry, White Supremacy and the North Carolina Suffrage Amendment,
13 N.C................................................................................................................................... 5

viii

 INTRODUCTION
The North Carolina Constitution guarantees the right to vote to every person who shares
“in the public burthens and ha[s] had a residence in the State long enough to learn its true policy,
and to feel an interest in its welfare.” Roberts v. Cannon, 20 N.C. 398, 4 Dev. & Bat. (Orig. Ed.)
256, 260-61 (1839). For every member of the community who shares “humane, economic,
ideological, and political concerns,” the right to vote “is at the foundation of a constitutional
republic.” Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 13, 269 S.E.2d 142, 150 (1980).
But North Carolina law fails to live up to this foundational guarantee. The General
Assembly has stripped the right to vote from nearly 60,000 members of North Carolina’s
communities because they are on probation, parole, or post-release supervision from a felony
conviction. These North Carolinians are neighbors, co-workers, family members, taxpayers, and
participants in civic groups. Like all other citizens, their lives are governed by the laws enacted
and enforced by elected officials, but they are denied the fundamental right to participate in
choosing their representatives. This mass disenfranchisement of tens of thousands of members
of North Carolina’s communities serves no compelling government interest and infringes upon
the fundamental right to free and fair elections.
Worse yet, this disenfranchisement is the product of an explicitly racist effort after the
Civil War to suppress the political power of African Americans. The law continues to have its
intended effect to this day. Although African Americans constitute 21.51% of the voting-age
population in North Carolina, they represent 42.43% of the people disenfranchised while on
probation, parole, or post-release supervision. In every county across the State for which
sufficient data is available, the law disenfranchises the African American population at a higher
rate than the white population. In 19 different counties, more than 2% of the African American
1

 voting-age population is disenfranchised under this law by virtue of being on probation, parole,
or post-release supervision. This disenfranchisement severely and disproportionately suppresses
the political power of African American communities across the state.
The law also discriminates against poor and low wealth people, who may be denied the
right to vote based solely on their inability to pay court costs, fees, and restitution. Individuals
often have their probation extended for failure to pay financial obligations, and the amounts
owed are staggering. The average person on felony probation in North Carolina owes more than
$2,400 in total fees, costs, and restitution. A substantial percentage of probationers cannot afford
to pay such amounts, prolonging their disenfranchisement. In no democracy should lack of
wealth be a basis for denying a citizen the right to vote, but in North Carolina, it is.
As the North Carolina Court of Appeals recently made clear in the analogous context of
the General Assembly’s voter ID laws, even though the North Carolina Constitution delegates
authority to the General Assembly to regulate rights restoration for people with a felony
conviction, the General Assembly must exercise that authority consistent with other
constitutional limitations. The General Assembly’s decision to disenfranchise people living in
North Carolina communities violates multiple other provisions of the North Carolina
Constitution. First, it violates the constitutional guarantee that “all elections shall be free,”
which mandates that elections “freely and honestly . . . ascertain . . . the will of the people.”
Common Cause v. Lewis, No. 18 CVS 014001, 2019 WL 4569584, at *109-12 (N.C. Super. Sep.
03, 2019). Elections do not ascertain the will of the people when large segments of society—a
grossly disproportionate number of whom are African American—cannot vote. In 2018 alone,
there were 16 county-level elections where the vote margin was less than the number of persons
disenfranchised in the county due to probation, parole, or post-release supervision.
2

 Second, disenfranchising persons living in North Carolina communities violates North
Carolina’s Equal Protection Clause, which affords broader protections than its federal
counterpart and protects “the fundamental right of each North Carolinian to substantially equal
voting power.” Stephenson v. Bartlett, 355 N.C. 354, 379, 562 S.E.2d 377, 394 (N.C. 2002).
North Carolina’s felony disenfranchisement scheme deprives all people on probation, parole and
post-release supervision of “substantially equal voting power” relative to their neighbors, and it
discriminates in particular against African Americans and poor persons. The law also violates
this State’s free speech and assembly guarantees. “Voting for the candidate of one’s choice” is a
“core means of political expression protected by the North Carolina Constitution’s Freedom of
Speech and Freedom of Assembly Clauses.” Common Cause, 2019 WL 4569584, at *119.
Probation and post-release disenfranchisement constitutes an outright ban on such core political
expression. Lastly, the requirement that people pay money to ensure they regain access to the
franchise violates the constitutional Ban on Property Qualifications.
There are no material facts that can be genuinely disputed, and the law is clear. This
Court should grant summary judgment and permanently enjoin enforcement of N.C.G.S. § 13-1
with respect to persons living in North Carolina communities on probation, parole, or postrelease supervision. In the alternative, given the irreparable harm that will result if Plaintiffs and
tens of thousands of North Carolinians are denied the right to vote in another election, this Court
should enter a preliminary injunction.

3

 BACKGROUND
A.

North Carolina’s Felony Disenfranchisement Scheme
Felony Disenfranchisement Has Long Been Used in North Carolina to
Suppress the Political Power of African Americans

Before the Civil War, North Carolina excluded “infamous” persons from suffrage.
Infamy could result either “from the commission of an infamous crime,” such as treason, bribery,
or perjury, “or from the receipt of an infamous punishment such as whipping,” which could be
inflicted for crimes like petty larceny. See Expert Report of Dr. Vernon Burton (“Burton
Report”) at 11 (quoting Pippa Holloway, Living in Infamy: Felon Disenfranchisement and the
History of American Citizenship 6, 34, 91 (2014)). North Carolina amended its constitution in
1835 to provide that the General Assembly “shall have power to pass general laws regulating”
the “restor[ation] to the rights of citizenship any person convicted of an infamous crime.” N.C.
Const. Art. I, Sec. 4, pt. 4 (1776, amended in 1835). The General Assembly first exercised this
power in 1840, requiring persons convicted of infamous crimes to seek rights restoration in the
courts, which had unfettered discretion to grant or deny it. See Ch. 36, 1840 N.C. Sess. Laws 68.
African Americans could not vote in North Carolina during this period. Burton Report at 12-15.
In the period after the Civil War, when federal law required North Carolina to extend the
franchise to African Americans, the State’s disenfranchisement of persons convicted of certain
crimes became a powerful tool of race-based political suppression. Former white rebels in North
Carolina began an extensive campaign of whipping African Americans for minor offenses like
petty larceny, because whipping was an “infamous” punishment that triggered
disenfranchisement. Id. at 19-22 (citing Steven F. Miller et al., Between Emancipation and
Enfranchisement: Law and the Political Mobilization of Black Southerners, 1865-1867, 70 Chi.Kent L. Rev. 1059, 1074 (1995)). Contemporary sources acknowledged that the “real motive”
4

 for these whippings was to disqualify large numbers of African Americans from the franchise
without violating the “letter of the [federal] civil rights act [of 1866].” Id. at 20. In one county
in North Carolina, “every adult male negro” was whipped. Id. Harper’s Weekly described a
scene outside a courthouse in Raleigh where a crowd of 500 people watched public whippings of
African Americans “every day,” noting that “this sentence of whipping” operates to “disqualif[y]
in advance” African Americans from the franchise. Id. at 20-21 (quoting Whipping and Selling
American Citizens, Harper’s Weekly (Jan. 12, 1867)).
North Carolina adopted a new constitution after the Civil War as a condition of rejoining
the Union. See N.C. Const. of 1868; John V. Orth, North Carolina Constitutional History, 70
N.C. L. Rev. 1759, 1781 (1992). Congress, then in the hands of the “Radical Republicans,”
called a North Carolina Constitutional Convention in 1868. Reconstruction legislation required
that delegates to the convention include both white and black citizens. Orth, supra, at 1777.
Fifteen of the 120 delegates to the 1868 Convention were black. Id.
The Constitution enacted at the 1868 Convention provided for universal male suffrage,
eliminated property requirements to vote, and abolished slavery. See N.C. Const. of 1868, Art. I,
§ 33; id. art. VI, § 1. Like its predecessor, the 1868 Constitution did not expressly disenfranchise
persons convicted of certain crimes. See id. Art. VI. In the years that followed, African
Americans achieved some success in municipal, state legislative, and even congressional
elections. See, e.g., William Mabry, White Supremacy and the North Carolina Suffrage
Amendment, 13 N.C. Hist. Rev. 1 (1936).
But the 1868 Constitution’s suffrage provisions were short-lived. Reacting to
Reconstruction, the Conservative Party in North Carolina (soon rebranded as Democrats)
regained control of North Carolina’s General Assembly using intimidation, violence, and fraud.
5

 Burton Report at 24-26; Orth, supra, at 1781. They immediately sought to replace the “hated”
1868 Constitution and took particular aim at its suffrage provisions. Orth, supra, at 1781; Burton
Report at 24-29.
In 1875, a flurry of amendments were added to the North Carolina Constitution to erode
the civil rights of African Americans. Two of the amendments required segregation in public
schools and banned interracial marriage, respectively. See 1875 Amendments to the N.C. Const.
of 1868, Amends. XXVI & XXX. And another amendment stripped counties of the ability to
elect their own local officials, including judges, giving that power instead to the Conservativecontrolled General Assembly. See id. Amend. XXV. “The purpose of this amendment, as was
well understood, was to block control of local government in the eastern counties by blacks who
were in the majority there.” Orth, supra, at 1783; Burton Report at 31.
The 1875 amendments also codified disenfranchisement for all felonies in the state
constitution for the first time. See 1875 Amendments to the N.C. Const. of 1868, Amend. XXIV.
In the pre-Civil War era, when only whites could vote, disenfranchisement for crimes had been
limited to persons who committed “infamous” crimes or received “infamous” punishments.
Now that African Americans could vote, the 1875 Amendment expanded disenfranchisement to
all persons convicted of a felony. The text of the original 1875 amendment largely mirrors the
analogous provision in North Carolina’s current constitution. It provided:
[N]o person who, upon conviction or confession in open Court, shall be
adjudged guilty of felony, or of any other crime infamous by the laws of this
state, and hereafter committed, shall be deemed an elector, unless such person
shall be restored to the rights of citizenship in a mode prescribed by law.
1875 Amendments to the N.C. Const. of 1868, Amend. XXIV.

6

 In 1877, the General Assembly enacted a statute to enforce felony-based
disenfranchisement. It provided that “persons who, upon conviction or confession in open court,
shall have been adjudged guilty of felony or other crime infamous by the laws of this state,”
“shall not be allowed to register to vote . . . unless they shall have been legally restored to the
rights of citizenship in the manner prescribed by law.” Ch. 275, § 10, 1876 N.C. Sess. Laws. At
the time, the “manner prescribed by law” was the existing statute that allowed persons convicted
of “infamous” crimes to seek rights restoration in the courts. Ch. 36, 1840 N.C. Sess. Laws 68.
Under this statute, a person had to wait four years from the date of their conviction to file the
petition seeking rights restoration, and there was also a mandatory three-month waiting period
between the filing of the petition and the hearing. Id. It was then left to the unfettered discretion
of the judge to restore a person’s right to vote. Id.
North Carolina’s new laws providing for felony-based disenfranchisement and depriving
localities of the ability to elect their own judges worked hand-in-hand to enforce white
supremacy. Burton Report at 31. “The change in the composition of the judiciary . . . and the
expanded disenfranchisement provision, added up to an increase in the number of Democratic
judges” able to deprive African Americans of the right to vote. Holloway, supra, at 62; see
Notes from the Capital, N.Y. Times, Oct. 11, 1875, at 5 (the “evident purpose” of these changes
was “to prevent colored men and poor white men from exercising the right of suffrage”).
What’s more, in the same 1877 legislation that denied persons convicted of felonies the
ability to register to vote, the General Assembly enacted harsh new penalties for voting before
one’s rights were restored. Ch. 275, § 62, 1876 N.C. Sess. Laws. The legislation provided that a
person who voted before having their rights restored after a felony conviction “shall be punished
by a fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding two
7

 years, or both.” Id. These penalties carry through to this day. Under current North Carolina
law, illegally voting while on probation, parole, or post-release supervision is a felony that
carries a maximum sentence of two years in prison. N.C.G.S. §§ 163-275, 15A-1340.17.
These expanded felony disenfranchisement efforts were an intentional effort to
disenfranchise African-American voters. Burton Report at 24-37. At the time, it was wellrecognized that the provisions would target African Americans. Burton Report at 29-37.
Contemporary conservative sources and politicians stated that “the great majority of the
criminals are negroes” and declared that “all Negroes are natural born thieves.” Id. at 31, 33-34.
The principal proponents of felony disenfranchisement in North Carolina were well-known
racists who were involved in lynching and other efforts to maintain Jim Crow. Id. at 35-36.
Other Democrats used coded language, like asserting that felony disenfranchisement was needed
to ensure the “purity of the ballot box,” signaling to all that their efforts targeted African
American voters. Id. at 25, 29-31. Republicans and African Americans strenuously but
unsuccessfully opposed the new felony disenfranchisement provisions. Id. at 32-35. Every
African American representative voted against it. Id. at 35.
As many historians have recognized, “disenfranchisement for prior criminal convictions
was among the first strategies employed to block African American suffrage in North Carolina.”
Id. at 22 (quoting Holloway, supra, at 34). As plaintiffs’ expert historian Dr. Vernon Burton
concludes, the felony disenfranchisement efforts in the 1875 constitution marked the beginning
of a systematic effort to “restore white Supremacy” and undermine the voting rights of black
North Carolinians. Id. at 37.

8

 The General Assembly Has Chosen to Prolong Disenfranchisement
Through Probation, Parole, and Post-Release Supervision
As described, since the 1875 constitutional amendments that were adopted for overtly
racist reasons, the North Carolina Constitution has delegated responsibility to the General
Assembly to enact laws regarding the disenfranchisement of persons with felony convictions. In
carrying out that delegation, the same General Assembly that pushed the 1875 constitutional
amendments established a regime that prolonged disenfranchisement even after individuals with
felony convictions had completed their term of incarceration and returned to living in
communities across the State. Supra at pp. 6-8.
Then, in 1898 when Democrats regained control of the General Assembly, they enacted a
series of laws designed to further exclude African Americans from voting, including a poll tax
and a literacy test with a “grandfather clause” exception for white voters. Burton Report at 41.
They also re-enacted the criminal provisions that punished any person who voted while ineligible
due to a felony conviction with a fine or two years of hard labor. Ch. 507, § 72, 1899 N.C. Sess.
Laws 658, 681. The passage of these provisions marked the culmination of a violent and
explicitly racist election campaign by white Democrats that included a two-day rampage in
Wilmington, where white Democrats murdered African Americans and took over by force
municipal government positions that blacks and Republicans had held. Burton Report at 40-41.
With African Americans effectively prevented from voting through these other means,
the General Assembly acted to slightly soften the felony disenfranchisement statute. In 1899, the
General Assembly amended the statute to allow petitions for re-enfranchisement in cases which
“the judgment of the court pronounced does not include imprisonment anywhere, and pardon has
been granted by the governor.” Ch. 44, § 1, 1899 N.C. Sess. Laws 139. This legislation was
aimed at restoring the rights of the Mayor of Burlington and its board of commissioners, who
9

 had been convicted of the felony of disinterring a body, but had been pardoned. Burton Report
at 42-44. The 1899 legislation also eliminated the 4-year waiting period following completion of
a prison sentence, and subsequent 1905 legislation eliminated the requirement of a pardon from
the governor for faster restoration of rights for individuals who had been sentenced to no prison
time. Ch. 547, §§ 1-2, 1905 N.C. Sess. Laws 553-554. Throughout this entire period, however,
the General Assembly retained the requirement that individuals seeking restoration of rights were
to petition individually before a (white) judge and secure ten acceptable witnesses who could
testify on their behalf. Burton Report at 45. As Dr. Burton concludes, it is no coincidence that
white Democrats in the legislature were willing to soften certain restrictions on restoration of
rights only after they had disenfranchised African Americans by other means. Id. at 42-45.
North Carolina’s felony disenfranchisement provisions were largely unchanged until
1971. As part of a broader reworking of North Carolina’s Constitution, the felony
disenfranchisement provision was amended to remove the reference to “infamous” crimes, and
thus the constitutional provision now allows for disenfranchisement only in the case of felony
convictions. N.C. Const., Art. VI, § 2, cl. 3. The General Assembly then amended its felony
disenfranchisement statutes in 1971 and again in 1973. The statutory revisions were initially
sponsored by three African American representatives to the General Assembly—the first three to
serve in the General Assembly since Reconstruction. Burton Report at 51, 60; see Decl. of
Daniel F. Jacobson (“Jacobson Decl.”) Ex. K, Aff. of Henry M. Michaux Jr. (“Michaux Aff.”)
¶¶ 7-9, 15. As Representative Michaux explains in the attached affidavit, these three
representatives—himself, Joy Johnson, and Henry Frye—were the only African American
representatives in an 170-person General Assembly, and they faced racism from members of
both parties. Ex. K (Michaux Aff.) ¶ 10. Michaux, Johnson, and Frye were working with the
10

 North Carolina chapter of the NAACP, which had identified automatic restoration of rights for
those previously convicted of a felony as a civil rights priority. Id. ¶ 12. It was well-known in
the legislature during this period that the existing felony disenfranchisement had been adopted in
the post-Reconstruction era as an effort to discriminate against and disenfranchise African
Americans, and that the operation of the law in the 1970s continued to discriminate against
African Americans and had a “major impact” on African American voter registration. Id. ¶ 15.
Michaux, Johnson, and Frye sought automatic restoration of voting rights for all persons
convicted of felonies immediately upon the completion of their prison sentence, without any
need to petition before a judge or to pay the fines and fees associated with probation or
supervised release. Id. ¶¶ 15-16; Burton Report at 50-56, 59-60; see also Ex. L (original
proposed bill in 1971). But they were only partially successful. Ex. K (Michaux Aff.) ¶¶ 16-19.
The legislation that ultimately passed in 1973 removed the requirement to petition a court for
rights restoration, but maintained the policy of disenfranchising persons even after their release
from incarceration. Their “aim was a total reinstatement of rights,” but they were not able to
convince the legislature to fully undo the racist felony disenfranchisement provisions. Id. ¶ 16.
As Rep. Michaux explains, they achieved a “step forward,” but their efforts “did not solve the
original problem: the law was designed to suppress African American voting power and it had
created a perverse incentive to criminalize and charge African Americans differently to achieve
that aim.” Id. ¶ 17. The amendments made the system “somewhat less discriminatory,” but did
not fully erase the “bitter pill of the original,” “racially motivated” disenfranchisement. Id. ¶ 18.
The General Assembly’s refusal to amend the statute to allow automatic restoration upon
release from incarceration came as other efforts by white supremacists to suppress the African
American vote grew less efficacious. By that time, federal law prohibited poll taxes and literacy
11

 tests, and by 1960 a third of eligible African Americans in North Carolina were registered to
vote, as opposed to just 5% in 1940. Burton Report at 48. Many of the opponents of automatic
voting-rights restoration were segregationists who opposed the Civil Rights Movement and the
Voting Rights Act and who expressly linked felony disenfranchisement laws with other racist
tools like literacy tests. Id. at 48-51. Opponents of automatic restoration were also proponents
of the “law and order” campaigns that were emerging in the 1960s and 1970s. Id. at 56-60.
“Law and order” was a dog whistle for many North Carolinians and part of a broader effort
aimed at resisting integration and other civil rights efforts. Id. at 56.
The current felony disenfranchisement statute, last amended in 2013, provides as follows:
Any person convicted of a crime, whereby the rights of citizenship are forfeited,
shall have such rights automatically restored upon the occurrence of any one of
the following conditions:
(1) The unconditional discharge of an inmate, of a probationer, or of a parolee by
the agency of the State having jurisdiction of that person or of a defendant under a
suspended sentence by the court.
(2) The unconditional pardon of the offender.
(3) The satisfaction by the offender of all conditions of a conditional pardon.
(4) With regard to any person convicted of a crime against the United States, the
unconditional discharge of such person by the agency of the United States having
jurisdiction of such person, the unconditional pardon of such person or the
satisfaction by such person of a conditional pardon.
(5) With regard to any person convicted of a crime in another state, the
unconditional discharge of such person by the agency of that state having
jurisdiction of such person, the unconditional pardon of such person or the
satisfaction by such person of a conditional pardon.
N.C.G.S. § 13-1. Under this law, North Carolinians who have been released from
incarceration—or who were never incarcerated—cannot vote until they have been
“unconditionally discharged” from probation, parole, or post-release supervision.
12

 N.C.G.S. § 13-1 thus disenfranchises individuals for lengthy periods of times after they
have been released from incarceration and returned to society. Of the currently disenfranchised
North Carolinians on probation, the median length of probation imposed in their original
sentence is 30 months. See Expert Report of Frank R. Baumgartner (“Baumgartner Report”) at
23. And of the currently disenfranchised North Carolinians on post-release supervision, the
median duration of post-release supervision in their original sentence is nine months. Id.
N.C.G.S. § 13-1 Conditions the Right to Vote on the Payment of Court
Costs, Fees, and Restitution
People with felony convictions must pay court costs, fees, and restitution as “conditions”
of probation, parole, and post-release supervision. N.C.G.S. §§ 15A-1343(b)(9) (probation),
15A-1374(b)(11a)-(11b) (parole), 15A-1368(e)(11)-(12) (post-release supervision). These costs
can be sizeable and have increased by nearly 400% over the past two decades in North Carolina.
See Expert Report of Dr. Traci Burch (“Burch Report”) at 23. In 1999, a North Carolinian
charged with a felony would face a total of $106 in possible court fines and fees, but today “$106
would barely cover two-thirds of the General Court of Justice fee in district court.” Id.
Notwithstanding that the overwhelming majority of criminal defendants in North
Carolina are indigent, the General Assembly has imposed a wide array of court costs on those
who are convicted or plead guilty in Superior Court, which has jurisdiction over all felony cases.
These costs include a “General Court of Justice Fee” of $154 plus additional fees for “Facilities”
($30), “telecommunications” ($4), “retirement and insurance benefits of . . . law enforcement
officers” ($6.25), “supplemental pension benefits of sheriffs” ($1.25), “services, staffing, and
operations of the Criminal Justice Education and Standards Commission” ($2), “Pretrial Release
Services” ($15), “arrest or personal service of criminal process” ($5), and “DNA” ($2).

13

 N.C.G.S. § 7A-304(a)(1)-(13). People unable to pay these fees “within 40 days of the date
specified in the court’s judgment” must also pay a late fee of $50.00. Id. § 7A-304(a)(6).
Among all persons currently on felony probation in North Carolina who owed court costs
as part of their original sentence, the median amount owed in court costs is $573. Baumgartner
Report at 22. For probationers who owed fees as part of their sentence, the median amount owed
in fees is $340. Id. And the median amount of restitution owed by probationers with restitution
obligations is $1,400. Id. For persons on parole or post-release supervision, the corresponding
median amounts owed is $40 in fees, $839 in court costs, and $1,500 in restitution. Id.
Probation, parole, and post-release supervision also impose additional costs. Each
requires payment of a monthly $40 “supervision fee.” N.C.G.S. § 15A-1343(b)(6), (c1)
(probation); id. § 15A-1374(c) (parole); id. § 15A-1368.4(f) (post-release supervision). These
fees add up. The average person on probation will owe $1,198 in total supervision fees, and the
average person on parole or post-release supervision will owe $356 in supervision fees.
Baumgartner Report at 22. On top of that, people must also “[p]ay the State of North Carolina
for the costs of appointed counsel, public defender, or appellate defender to represent him in the
case(s) for which he was placed on probation.” N.C.G.S. § 15A-1343(b)(10).
For probationers, failure to pay the amount owed in court costs, fees, and restitution
empowers a court to extend the term of probation—and thus the denial of the right to vote. Id.
§ 15A-1344(a), (d). Courts may extend probation up until a total of five years for failure to pay
these amounts. Id. § 15A-1342(a). A court may also extend probation for an additional three
years, even if that extends beyond the total five-year probationary period, “for the purpose of
allowing the defendant to complete a program of restitution.” Id. § 15A-1342(a). Defendants
have no mechanism to appeal these extension orders when they are issued, and people have
14

 remained on probation—and disenfranchised—for years in error. See State v. Hoskins, 242 N.C.
App. 168, 775 S.E.2d 15 (2015) (finding, after the defendant had completed eight years on
probation, that the trial court lacked jurisdiction to enter the three-year extension).1
Notwithstanding high rates of indigence among individuals convicted of felonies and the
failure of courts to assess ability to pay, people are regularly subjected to extended periods of
probation for failing to pay court fines. Burch Report at 22-34. The result is that people remain
disenfranchised based on nothing other than their inability to pay court costs and restitution.
N.C.G.S. § 13-1 Currently Disenfranchises More than 56,516
Individuals Living in North Carolina Communities, a Grossly
Disproportionate Number of Whom Are African American
Based on data produced by the North Carolina Department of Public Safety in this case,
N.C.G.S. § 13-1 currently disenfranchises 51,441 persons who are on probation, parole, or postrelease supervision following a conviction in North Carolina state court. Baumgartner Report at
5. Of those persons, 40,832 are on probation and 12,376 are on parole or post-release
supervision (some are on both probation and post-release supervision). Id. In addition,
according to the most recent federal government data, there are 5,075 persons on some form of
community supervision from a conviction in federal court in North Carolina. Id. at 6. Thus,
N.C.G.S. § 13-1 currently disenfranchises more than 56,516 people in total. Id. This figure does
not include the unknown number of persons living in North Carolina who are disenfranchised
because they are on community supervision from a conviction in another state’s courts. Id.
The policy of disenfranchising people living in North Carolina communities
disproportionately harms people of color. Although African Americans represent 21.51% of the

1

For persons on post-release supervision, failure to pay court courts or restitution can result in revocation of postrelease supervision, for which the individual can be sent back to prison and the supervised release period is tolled
during such re-incarceration. N.C.G.S. § 15A-1368.4(d) & (f).

15

 voting population in North Carolina, they represent 42.43% of the people disenfranchised while
on probation, parole, or post-release supervision. Id. at 7. In every county across the State for
which sufficient data is available, the disenfranchisement rate of the African American
population is higher than that of the white population, with African Americans being
disenfranchised 2.75 times the rate of whites statewide. Id. at 14-15. More than 1.24% of the
total African American voting-age population in North Carolina is disenfranchised as a result of
being on probation, parole, or post-release supervision. Id. at 7. In 19 different counties, more
than 2% of the African American voting-age population is disenfranchised on these bases. Id. at
4, 34-35. African American men, in particular, comprise a disproportionate percentage of those
disenfranchised. Black men make up 9.2% of the North Carolina voting-age population, but
comprise 36.6% of non-incarcerated persons who are disenfranchised. See id. at 7.
B.

Procedural History

Plaintiffs filed their Complaint in this action on November 20, 2019 and filed a motion to
set an expedited case schedule that same day. On December 3, 2019, Plaintiffs filed an
Amended Complaint, and State Board Defendants and Legislative Defendants filed their
Answers on January 16, 2020 and January 21, 2020, respectively. Both sets of Defendants
initially filed motions to dismiss the Amended Complaint, but they withdrew those motions on
January 28, 2020. In turn, Plaintiffs agreed to a continuance of a hearing that Plaintiffs had
calendared for February 4, 2020 on Plaintiffs’ motion to set an expedited case schedule, as the
parties all agreed that the case was ripe and fit for appointment of a three-judge panel.
Plaintiffs are six individuals and four organizations directly impacted by N.C.G.S. § 131’s disenfranchisement of persons living in North Carolina communities on probation, parole, or
post-release supervision. Plaintiffs Timothy Locklear, Drakarus Jones, Susan Marion, Henry
16

 Harrison, Ashley Cahoon, and Shakita Norman are North Carolina residents currently or
previously on probation or post-release supervised from a felony conviction. For those still
under supervision, each would be eligible to vote, and would exercise their right to vote, if not
for the disenfranchisement law. See Ex. A, Aff. of Timothy Locklear ¶¶ 10-11; id., Ex. B, Aff.
of Susan Marion ¶¶ 11-15; id., Ex. D, Aff. of Shakita Norman ¶¶ 11-15. Each of these Plaintiffs
could not vote in North Carolina’s March 2020 primaries and will be precluded from voting in
future elections until the conclusion of their probation or post-release supervision. See id.; see
also Ex. C, Aff. of Henry Harrison ¶¶ 12-14.
As a consequence of N.C.G.S. § 13-1, the four organizational Plaintiffs must divert
scarce resources away from other critical work toward helping North Carolinians with felony
convictions comply with the law and re-register when allowed. The fundamental missions of
Plaintiffs Community Success Initiative, Justice Served N.C., Inc., and Wash Away
Unemployment are to ensure that persons entangled in the criminal justice system can reintegrate
into society. See Ex. E, Aff. of Dennis Gaddy ¶ 8; Ex. F, Aff. of Diana Powell ¶ 6; Ex. G, Aff.
of Corey Purdie ¶ 9. The current law frustrates that mission by raising barriers to rehabilitation
and reintegration. Ex. E ¶ 19; Ex. F ¶ 23; Ex. G ¶ 16. Plaintiff North Carolina State Conference
of the NAACP (“NC NAACP”) is dedicated to the advancement and improvement of the
political, civil, social, and economic status of racial minorities in North Carolina. Ex. H, Aff. of
Anthony Spearman ¶ 8. The current law frustrates that mission by disproportionately burdening
African Americans. Id. ¶ 29. N.C.G.S. § 13-1 also disenfranchises some of the North Carolina
NAACP’s members. Id.

17

 LEGAL STANDARDS
Summary judgment is appropriate if “there is no genuine issue as to any material fact and
[the movant] is entitled to a judgment as a matter of law.” N.C. R. Civ. P. 56(c).
A preliminary injunction should issue if (1) the plaintiff can “show likelihood of success
on the merits of his case,” (2) the plaintiff “is likely to sustain irreparable loss unless the
injunction is issued,” and (3) a “balancing of the equities” supports injunctive relief. Triangle
Leasing Co. v. McMahon, 327 N.C. 224, 227, 393 S.E.2d 854, 856-57 (1990); A.E.P. Indus., Inc.
v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983).
ARGUMENT
The material facts are undisputed, and Plaintiffs are entitled to judgment as a matter of
law that N.C.G.S. § 13-1’s disenfranchisement of North Carolinians on probation, parole, or
post-release supervision violates multiple provisions of the North Carolina Constitution.
Alternatively, the Court should enter a preliminary injunction again enforcement of the law
against such persons pending final resolution of this action.
I.

The North Carolina Constitution’s Felony Disenfranchisement Clause Does Not
Immunize the General Assembly’s Rights Restoration Statutes from Compliance
With Other Constitutional Guarantees
Article VI, § 2, cl. 3 of the North Carolina Constitution provides that “no person

adjudged guilty of a felony . . . shall be permitted to vote unless that person shall be first restored
to the rights of citizenship in the manner prescribed by law.” This provision delegates authority
to the General Assembly to “prescribe[] by law” the contours of disenfranchisement, but it does
not give the General Assembly unfettered discretion in enacting a disenfranchisement scheme.
Rather, in carrying out this delegation, the General Assembly must comply with all other

18

 provisions of the state constitution, including the Free Elections Clause, the Equal Protection
Clause, the Free Speech and Assembly Clauses, and the Ban on Property Qualifications.
The understanding that Article VI, § 2, cl. 3 does not immunize North Carolina felony
disenfranchisement statutes from constitutional review follows from the “basic canon of
constitutional construction . . . [that] separate provisions” of the North Carolina Constitution
must be interpreted “in harmony.” N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 529, 805
S.E.2d 518, 527 (2017), aff’d, 371 N.C. 149, 814 S.E.2d 54 (2018). As the North Carolina
Supreme Court explained over 80 years ago, “[r]econciliation is a postulate of constitutional as
well as of statutory construction.” Sessions v. Columbus Cty., 214 N.C. 634, 200 S.E. 418, 420
(1939); see also Stephenson v. Bartlett, 355 N.C. 354, 382, 562 S.E.2d 377, 396 (2002) (holding
that one provision of the North Carolina Constitution relating to elections, the Whole County
Provision, “must also be reconciled with other legal requirements of the State Constitution”).
Thus, while Article VI, § 2, cl. 3 may authorize the General Assembly to adopt some
form of felony disenfranchisement, it does not empower the General Assembly to enact any
disenfranchisement scheme it wishes. For example, the General Assembly could not pass a
statute providing that only people of a certain race, sex, or religion may regain their voting rights
following a felony conviction. Or “[s]uppose [the General Assembly] adopted a statute
automatically restoring the right to vote for felons with a net worth of $100,000 or more but not
for other felons.” Jones v. DeSantis, 410 F. Supp. 3d 1284, 1302 (N.D. Fla. 2019), aff’d 950
F.3d 795 (11th Cir. 2020). Nobody would seriously defend the constitutionality of such
legislation. Nor could the General Assembly adopt wholly arbitrary requirements such as height
or weight thresholds for restoration of voting rights.

19

 The recent Court of Appeals decision in Holmes v. Moore, 840 S.E.2d 244 (N.C. Ct. App.
2020), recognized as much and forecloses any argument that Article VI, § 2, cl. 3 precludes
Plaintiffs’ claims here. Holmes concerned the State’s voter ID requirements. Analogous to the
situation here, North Carolina’s Constitution provides that “[v]oters offering to vote in person
shall present photographic identification before voting,” and explicitly authorizes the General
Assembly to enact implementing legislation. N.C. Const., art. VI, §§ 2(4), 3(2). In defending
the implementing legislation, Legislative Defendants and State Board Defendants argued that the
law should be upheld because it was “crafted and enacted to fulfill our Constitution’s newly
added mandate that North Carolinians must present ID before voting.” Holmes, 840 S.E.2d at
265. The Court of Appeals rejected this “proffered justification.” Id. “Although the General
Assembly certainly had a duty, and thus a proper justification, to enact some form of a voter-ID
law, . . . this mandate alone [could not] justify the legislature’s choices when it drafted and
enacted S.B. 824 specifically.” Id. (internal quotation marks omitted). The Court of Appeals
held that, notwithstanding the Constitution’s voter ID provisions, any implementing legislation
must comply with North Carolina’s Equal Protection Clause, and the plaintiffs established a
strong likelihood that the legislation did not because of its discriminatory intent. Id.
In reconciling constitutional provisions like the voter ID provision or the felony
disenfranchisement provision with other state constitutional guarantees, this Court must be
guided by the principle that provisions of the North Carolina Constitution relating to elections
“should be liberally construed . . . to promote a fair election or expression of th[e] popular will.”
Common Cause v. Lewis, No. 18 CVS 014001, 2019 WL 4569584, at *109 (N.C. Super. Sep. 03,
2019) (quoting McDonald v. Morrow, 119 N.C. 666, 673, 26 S.E. 132, 134 (1896)). “[T]he
North Carolina Supreme Court has directed that in construing provisions of the Constitution,
20

 [courts] should keep in mind that this is a government of the people, in which the will of the
people—the majority—legally expressed, must govern.” Id. (quoting State ex rel. Quinn v.
Lattimore, 120 N.C. 426, 428, 26 S.E. 638, 638 (1897)).
The North Carolina Supreme Court applied this principle in reconciling competing
constitutional provisions in Stephenson. There, the Court held that the North Carolina
Constitution’s “Whole County Provision” for state legislative redistricting should not be
accorded a literal meaning that would conflict with other constitutional voting-rights protections.
See Stephenson, 355 N.C. at 382, 562 S.E.2d at 396. “[A]n application of the [Whole County
Provision] that abrogates the equal right to vote, a fundamental right under the State
Constitution, must be avoided in order to uphold the principles of substantially equal voting
power and substantially equal legislative representation arising from that same Constitution.” Id.
The same principle applies here: Article VI, § 2, cl. 3 must be interpreted in a manner consistent
with the North Carolina Constitution’s commitment—embodied in the Free Elections Clause, the
Equal Protection Clause, the Free Speech and Assembly Clauses, and the Ban on Property
Qualifications—to free and fair elections in which members of North Carolina’s communities
have substantially equal voting power and the will of the people prevails.
II.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North Carolina
Communities Violates the Free Elections Clause
N.C.G.S. § 13-1’s disenfranchisement of persons living in North Carolina communities

violates the Free Election Clause’s mandate that elections in North Carolina faithfully ascertain
the will of the people. Elections do not faithfully ascertain the will of the people when more than
56,500 citizens living and working in North Carolina communities cannot vote. And this
disenfranchisement strikes at the heart of the Free Elections Clause because it disproportionately
strips the right to vote from discrete racial and social classes. The law disenfranchises greater
21

 than 2% of the African American voting-age population in at least 19 counties, and it targets
poor persons of all races. The disenfranchisement of persons living in the community under
N.C.G.S. § 13-1 is so widespread that, in a staggering number of elections, it may actually turn
the outcome of the elections. In the 2018 general elections, for example, there were 16 countylevel elections where the vote margin was smaller than the number of persons disenfranchised in
the county due to probation, parole, or post-release supervision. Because N.C.G.S. § 13-1
interferes with the fundamental right of North Carolinians to vote in free elections, strict scrutiny
applies. Defendants have advanced no compelling interest to which the law is narrowly tailored
for indiscriminately removing all persons on probation, parole, or post-release supervision from
the electorate that expresses the community’s collective will at the ballot box.
A.

The Free Elections Clause Mandates That Elections in North Carolina
Ascertain the Will of the People, and Precludes Laws That Unduly Interfere
with That Mandate

The North Carolina Constitution’s Free Elections Clause declares that “[a]ll elections
shall be free.” N.C. Const., art. I, § 10. This clause, which has no federal counterpart, dates
back to the North Carolina Declaration of Rights of 1776. See Common Cause, 2019 WL
4569584, at *111. The framers of the Declaration of Rights modeled it on a provision in the
1689 English Bill of Rights stating that “election of members of parliament ought to be free.” Id.
(quoting Bill of Rights 1689, 1 W. & M. c. 2 (Eng.)); see Orth, supra, at 1797-98.
The English Bill of Rights provision responded to the king’s efforts to manipulate
parliamentary elections by manipulating the composition of the electorate. J.R. Jones, The
Revolution of 1688 in England 148 (1972); George H. Jones, Convergent Forces: Immediate
Causes of the Revolution of 1688 in England 75-78 (1990). Those efforts led to a revolution, and
after dethroning the king, the revolutionaries called for a “free and lawful parliament” as a
22

 critical reform. Grey S. De Krey, Restoration and Revolution in Britain: A Political History of
the Era of Charles II and the Glorious Revolution 241, 247-48, 250 (2007). They enacted the
free elections clause to this end. See id.; Common Cause, 2019 WL 4569584, at *111.
In the United States, many states enacted free elections clauses modeled on the English
Bill of Rights provisions. For instance, Pennsylvania adopted its free elections clause in 1776.
See League of Women Voters v. Commonwealth, 178 A.3d 737, 806-07 (Pa. 2018). As the
Pennsylvania Supreme Court has explained, Pennsylvania’s free elections clause reflected “a
desire to secure access to the election process by all people with an interest in the communities in
which they lived—universal suffrage—by prohibiting exclusion from the election process of
those without property or financial means.” Id. at 807.2
North Carolina adopted its Free Elections Clause in 1776, and since then has “broadened
and strengthened” the clause to reinforce its principal purpose of preserving the popular
sovereignty of North Carolinians. Common Cause, 2019 WL 4569584, at *111. The original
1776 clause stated that “elections of members, to serve as Representatives in the General
Assembly, ought to be free.” N.C. Declaration of Rights, VI (1776). The 1868 Constitution,
which expanded African American political rights after the Civil War, revised the clause to state
that “[a]ll elections ought to be free.” N.C. Const. art. I, § 10 (1868). The 1971 Constitution
revised the clause again to state that “[a]ll elections shall be free.” N.C. Const. art. I, § 10.
“This change was intended to ‘make [it] clear’ that the Free Elections Clause and the other rights
secured to the people by the Declaration of Rights ‘are commands and not mere admonitions’ to

2

Other states with free elections clauses in their constitutions include Arizona, Arkansas, Colorado, Delaware,
Illinois, Indiana, Kentucky, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Hampshire, New Mexico,
Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, and Virginia.

23

 proper conduct on the part of the government.” Common Cause, 2019 WL 4569584, at *111
(quoting N.C. State Bar v. DuMont, 304 N.C. 627, 635, 639, 286 S.E.2d 89, 97 (1982)).
Given this text and history, “the meaning of the Free Elections Clause is that elections
must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.”
Common Cause, 2019 WL 4569584, at *110; accord Harper v. Lewis, 19 CVS 12667, Order on
Inj. Relief at 7 (N.C. Super. Oct. 28, 2019). As the Supreme Court explained 145 years ago,
“[o]ur government is founded on the will of the people,” and [t]heir will is expressed by the
ballot.” People ex rel. Van Bokkelen v. Canaday, 73 N.C. 198, 220 (1875)). A “free” election,
therefore, must reflect to the greatest extent possible the will of all people living in North
Carolina communities. Id. at 222-23 (the franchise belongs to “every” resident, as “government
affects his business, trade, market, health, comfort, pleasure, taxes, property and person”).
North Carolina courts have applied this principle to invalidate laws that unnecessarily
restrict or burden the right to vote. In Clark v. Meyland, for instance, the Supreme Court struck
down a law that required primary voters to take an oath to support their party’s nominees. 261
N.C. 140, 141, 134 S.E.2d 168, 169 (1964). By unduly conditioning voters’ “right to participate
in [a] primary,” the law “violate[d] the constitutional provision that elections shall be free.” Id.
at 143, 134 S.E.2d at 170. In Common Cause and Harper, three-judge Superior Court panels
held that partisan gerrymandering violates the Free Elections Clause because it “deprive[s] North
Carolina citizens of the right to vote . . . in elections that are conducted freely and honestly to
ascertain, fairly and truthfully, the will of the people.” Common Cause, 2019 WL 4569584, at
*112; Harper v. Lewis, Order on Inj. Relief at 6-7. The panels emphasized that the right to free
elections that “ascertain . . . the will of the people” is “a fundamental right of the citizens

24

 enshrined in our Constitution’s Declaration of Rights, a compelling governmental interest, and a
cornerstone of our democratic form of government.” Common Cause, 2019 WL 4569584, at *2.
B.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Infringes Upon the Guarantee of Free Elections That
Reflect the Will of the People

Just like the invalidated statutes in the above cases, N.C.G.S. § 13-1 violates the Free
Elections Clause by preventing elections that “ascertain, faithfully and truthfully, the will of the
people.” Common Cause, 2019 WL 4569584, at *2. The statute denies the right to vote to more
than 56,516 of “the people” living in North Carolina communities who are on some form of
probation, parole, or post-release supervision. See Baumgartner Report at 6. In at least nine
counties—Cleveland, McDowell, Pamlico, Beaufort, Madison, Sampson, Duplin, Lincoln, and
Scotland Counties—more than 1% of the total voting-age population is disenfranchised by virtue
of being on probation, parole, or post-release supervision from a state court conviction. Id. at 10,
34-35. Elections do not faithfully or truthfully ascertain the will of the people when such large
segments of a community cannot vote on its elected leaders.
This disenfranchisement scheme strikes at the core of the Free Elections Clause,
moreover, because of its grossly disproportionate effects on two sets of citizens: racial minorities
and poor persons. Interpreting Pennsylvania’s analogous clause, the Pennsylvania Supreme
Court has explained that free election clauses enacted at the founding were designed “to secure
access to the election process by all people with an interest in the communities in which they
lived,” “no matter their financial situation or social class.” League of Women Voters, 178 A.3d
at 807. But contrary to this intent, N.C.G.S. § 13-1’s ban falls disproportionately on historically
disadvantaged racial and social classes.

25

 With respect to the disparate racial impact, N.C.G.S. § 13-1 disenfranchises a grossly
disproportionate number of African Americans living in North Carolina communities. In every
county in North Carolina for which there is sufficient data to perform comparisons, the law
disenfranchises a greater percentage of the African American voting-age population than the
white voting-age population. Baumgartner Report at 14-15. The maps below show these glaring
disparities, as well as the high rates of disenfranchisement of African Americans across the State.
The first map depicts the percentage of the total voting-age population that is disenfranchised in
each county by virtue of being on probation, parole, or post-release supervision from a North
Carolina state court conviction; the second map shows the percentage of the white voting-age
population in each county disenfranchised on these bases; and the third map shows the
corresponding percentage of the African American voting-age population disenfranchised:

26

 Baumgartner Report at 18-19.
Statewide, more than 1.24% of the total African American voting-age population is
disenfranchised by virtue of being on probation, parole, or post-release supervision.
Baumgartner Report at 8-9. In 19 different counties, the disenfranchisement rate is greater than
2% of the African American voting-age population. Id. at 4, 34-35. In Dare County, the law
disenfranchises greater than 5% of the total African American voting-age population. Id.
Elections cannot “ascertain, faithfully and truthfully, the will of the people” when such large and
disproportionate percentages of one race are barred from voting. Common Cause, 2019 WL
4569584, at *2
27

 N.C.G.S. § 13-1 also reduces access to the franchise for poor persons of all races. Under
North Carolina law, probation may be extended for failure to pay courts costs, fees, or
restitution. And many disenfranchised individuals lack the financial means to make the
payments they owe. Burch Report at 32-34. Across all disenfranchised individuals in North
Carolina who are on probation, the average amount owed in fines, fees, and restitution is $2,441.
Baumgartner Report at 22. Many North Carolinians therefore just do not have the money
necessary to regain the franchise. Burch Report at 32-34. Elections cannot be considered “free”
when a large number of citizens are denied the ability to cast a ballot for no reason other than
their lack of financial resources.
The large number of disenfranchised persons across the state, and the disproportionate
disenfranchisement of discrete racial and socioeconomic classes, prevent elections from being
free regardless of whether it swings any particular election, but the disenfranchisement may
actually be outcome-determinative with alarming frequency. In the 2018 general elections alone,
there were 16 elections at the county level where the number of persons disenfranchised while on
probation, parole, or post-release supervision exceeds the vote margin in the election.
Baumgartner Report 27. For example, the vote margin in the Beaufort County Board of
Commissioners race was just 63 votes, but 457 persons living in Beaufort County are
disenfranchised. Id. The Lee County Board of Education election was decided by a mere 78
votes, with 332 people being disenfranchised in Lee County because they are probation, parole,
or post-release supervision. Id. The Alleghany County Board of Commissioners race came
down to just six votes, and over ten times that many Alleghany County residents are
disenfranchised. Id. There can be no assurance that these elections accurately ascertained the
will of the people.
28

 Voter registration and turnout data reveals that a substantial percentage of persons
disenfranchised while living in North Carolina communities would vote if their rights were
restored. Of the persons currently on probation, parole, or post-release supervision from a state
court felony conviction, 38.5% were registered to vote at some point prior to their conviction.
Burch Report at 4, 9. Moreover, among persons who previously had been disenfranchised but
had their rights restored before the 2016 general election, at least 27.69% voted in the 2016
general election. Id. at 17. And this turnout figure would be higher if not for the confusion that
exists under current law among persons with felony convictions about when their voting rights
are restored. See, e.g., Ex. F ¶¶ 20-21. Regardless, it is clear that N.C.G.S. § 13-1 has the effect
of prevents many thousands of individuals living in North Carolina communities who would
otherwise vote from casting their ballots, potentially preventing the will of the people from
prevailing in elections that affect every aspect of daily life.
C.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Cannot Satisfy Strict Scrutiny

Because the right to free elections is a “fundamental right of North Carolina citizens,”
Common Cause, 2019 WL 4569584, at *2, the abridgment of that right under N.C.G.S. § 13-1
triggers strict scrutiny. See Northampton Cnty. Drainage Dist. No. One v. Bailey, 326 N.C. 742,
747, 392 S.E.2d 352, 356 (1990). That is so regardless of the General Assembly’s intent in
passing the law. When statutes implicate state constitutional provisions concerning the right to
vote, “it is the effect of the act, and not the intention of the Legislature, which renders it void.”
Von Bokkelen, 73 N.C. at 225-26. The effect of N.C.G.S. § 13-1 is to disenfranchise more than
56,516 North Carolinians, a grossly disproportionate number of whom are African Americans.
In any event, strict scrutiny would apply here even if the General Assembly’s intent were
relevant in evaluating a Free Elections Clause claim. On the most basic level, it is undisputed
29

 that the General Assembly intended to disenfranchise all 56,516 persons in North Carolina who
are on probation, parole, or other supervision; the disenfranchisement is no accident. Moreover,
the history of North Carolina’s felony disenfranchisement scheme, culminating in N.C.G.S. § 131 today, reflects an intentional effort to target African Americans and poor persons. See supra at
pp. 4-12; Burton Report at 2-3; Ex. K (Michaux Aff.). In manipulating the electorate by
disenfranchising groups of voters perceived as undesirable, N.C.G.S. § 13-1 resembles the very
English laws that were the impetus for North Carolina’s original free elections clause.
Defendants therefore must show that the disenfranchisement of individuals on probation,
parole, or post-release supervision under N.C.G.S. § 13-1 furthers a compelling government
interest and that N.C.G.S. § 13-1 is narrowly tailored to advance that interest. Common Cause,
2019 WL 4569584, at *2; Northampton Cnty., 326 N.C. at 747.
Defendants Have Not Identified Any Compelling Government Interest
That the Challenged Scheme Is Narrowly Tailored to Advance
Given the fundamental importance of the franchise, it is hard to conceive of a
“compelling” justification for disenfranchising large numbers of people who live in communities
across the State. The North Carolina Supreme Court has held that “[t]he right to vote is the right
to participate in the decision-making process of government” among all those in the “body
politic” who “shar[e] an identity” and “humane, economic, ideological, and political concerns.”
Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 13, 269 S.E.2d 142, 150 (1980). This right
of all members of the community to participate in deciding who will set policy in government,
and for the will of the majority of members of the community to prevail, “is at the foundation of
a constitutional republic.” Id.; see also Roberts v. Cannon, 20 N.C. 398, 4 Dev. & Bat. (Orig.
Ed.) 256, 260-61 (1839) (explaining that the North Carolina Constitution embodies the principle
that “all classes of the community should be represented, and that every man should be entitled
30

 to a vote who . . . ha[s] participated in the public burthens and have had a residence in the State
long enough to learn its true policy, and to feel an interest in its welfare”).
Defendants have offered no “compelling” interest for removing persons on probation,
parole, or other supervision from the community of persons that has the right to choose its
elected leaders in government. They do not assert that people on probation, parole, or postrelease supervision are somehow not part of the same community as their neighbors who are
eligible to vote. They do not dispute that persons on probation, parole, or post-release
supervision “shar[e] . . . economic, ideological, and political concerns” with other members of
the community. Texfi Indus., 301 N.C. at 13, 269 S.E.2d at 150. And Defendants do not deny
that the identity of elected officials profoundly affects the lives of disenfranchised persons in
exactly the same ways it affects their neighbors.
Defendants instead offer a scattershot of other interests purportedly justifying the
disenfranchisement scheme, none of which are sufficiently compelling or narrowly tailored to
justify stripping the right to vote from tens of thousands of North Carolinians who live and work
in the community subject to its laws.
Legislative Defendants and State Board Defendants both assert that the challenged
scheme serves the interest of “implementing” the “constitutional mandate” in Article VI, § 2, cl.
3. See Ex. I, State Bd. Defs.’ Am. Interrog. Resp. at 4; Ex. J., Legislative Defs.’ First Supp.
Interrogatory Responses at 4. But as described, Holmes squarely rejected the proposition that a
constitutional “mandate” to enact implementing legislation on a particular subject alone is a
sufficient interest to uphold that legislation. Just like in Holmes, “[a]lthough the General
Assembly certainly had a duty, and thus a proper justification, to enact some form of” felony
disenfranchisement laws, “this mandate alone cannot justify the legislature’s choices when it
31

 drafted and enacted [N.C.G.S. § 13-1].” Holmes, 840 S.E.2d at 265 (internal quotation marks
omitted). Were it otherwise—if the existence of Article VI, § 2, cl. 3 allowed the General
Assembly to enact any disenfranchisement scheme it pleased—the General Assembly could tie
rights restoration to an individual’s race, wealth, sex, religion, or even height. Put bluntly, “[a]n
official who adopts a constitutional theory that would approve such a statute needs a new
constitutional theory.” Jones, 410 F. Supp. 3d at 1302.
Defendants also assert that N.C.G.S. § 13-1’s scheme “[s]implif[ies] the administrative
process for the restoration of rights of citizenship of felons who have served their full sentences.”
Ex. I at 4; Ex. J at 4. State Board Defendants similarly assert that the law “avoid[s] confusion
among North Carolinians convicted of felonies as to when their rights are restored.” Ex. I at 5.
But a desire to simplify the administrative process is not, by itself, a compelling interest that can
justify the denial of a fundamental right. “[A] statute will not be upheld merely because it serves
the purpose of administrative convenience.” Smith v. Keator, 21 N.C. App. 102, 108, 203 S.E.2d
411, 417 (1974) (citing Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (“[W]hen we enter
the realm of strict judicial scrutiny, there can be no doubt that ‘administrative convenience’ is not
a shibboleth, the mere recitation of which dictates constitutionality.”). And in any event, tying
rights restoration to the “unconditional discharge” of an individual’s probation, parole, or postrelease supervision creates rather than avoids confusion. As Diana Powell, CEO and Executive
Director of Plaintiff Justice Served explains in her affidavit, she “regularly speak[s] with people
who are confused as to whether or not they are eligible to vote after having been convicted of a
crime.” Ex. F ¶ 20. Some individuals “are unsure of whether or not they are on misdemeanor
probation or felony probation,” and others “are unsure if their probation has been extended due
to an inability to pay court costs, fees, fines or restitution.” Id.; accord Ex. G ¶ 23 (Purdie aff.)
32

 A simple rule to avoid any confusion would be that if a person lives in the community, he or she
can vote just like his or her neighbors. See Burch Report at 37-39.
Defendants contend that disenfranchising individuals until they complete their probation,
parole, or post-release supervision helps “promot[e]” the “voter registration and electoral
participation” of such individuals. Ex. I at 4-5; Ex. J at 4. That is nonsensical. Prohibiting
people from voting—in many cases for years—directly prevents voter registration and electoral
participation for the duration of the disenfranchisement. And the confusion caused by the
disenfranchisement of non-incarcerated persons, coupled with the criminal penalties that exist for
voting before one’s rights are restored, causes many people to “remain incredibly fearful of
casting a ballot even after their voting rights have been restored.” Ex. F ¶ 21 (Powell aff.)
(emphasis added); see id. (“Many of our clients have expressed to me that they are afraid to be
prosecuted for inadvertently voting before they have completed their full probation or postrelease sentence, including paying all of the associated fines and fees.”); Ex. G ¶ 23 (Purdie aff.)
(“Some participants have expressed to me that they have a fear of voting and getting
arrested for doing so.”); Jack Healy, Arrested, Jailed and Charged With a Felony. For Voting.,
N.Y. Times, Aug. 2, 2018.
Legislative Defendants further claim that N.C.G.S. § 13-1’s scheme serves an interest in
“withholding the restoration of voting rights from felons who have not completed their entire
sentence,” and in “requiring felons to complete all conditions of probation, parole, and post-trial
supervision.” Ex. J at 5. State Board Defendants assert a similar interest. Ex. I at 5. But this is
tautological: Defendants assert that requiring people to complete the terms of their probation,
parole, or post-release supervision before they can vote serves an interest in requiring those
people to complete the terms of their probation, parole, or post-release supervision before they
33

 can vote. Moreover, any abstract interest in making people wait until they have “completed their
entire sentence” is not sufficiently compelling to justify denying the fundamental right to vote to
tens of thousands of North Carolinians who live in communities across this State. That is
especially so when “completing” probation can be tied to wealth, rather than to conditions that
the individual can control. And to the extent Defendants are arguing that withholding the
franchise encourages completion of post-release and probationary terms, they have offered no
evidence whatsoever to substantiate such a claim, and there is no empirical evidence to support
such a claim in any of the scholarly literature. Burch Report at 22-34. Nor would such an
interest be compelling.
In a similar vein, Defendants contend that the challenged scheme serves to “withhold[]
the restoration of voting rights from felons who do not abide by court orders.” Ex. J at 5; see Ex.
I at 5 (similarly stating that the law “encourag[es] compliance with court orders”). Defendants
have set forth no empirical or other evidence that the prospect of disenfranchisement results in
high rates of compliance with court orders, and there is no such evidence in the scholarly
literature. See Burch Report at 32. Moreover, the statute “withhold[s]” the right to vote from
every individual on probation, parole, and post-release supervision, regardless of whether they
have violated a court order.
Legislative Defendants contend that N.C.G.S. § 13-1 promotes an interest in “requiring
felons to pay full restitution to their victims so that their victims are made as whole as possible.”
Ex. J at 4-5. This does not salvage the law for several reasons. First, the law indiscriminately
disenfranchises all persons on probation, parole, or post-release supervision, and not just persons
who owe restitution. Roughly 68% of probationers currently disenfranchised under N.C.G.S.
§ 13-1 did not owe any restitution as part of their sentence. Baumgartner Report at 23-24.
34

 Second, even for those individuals who owe restitution, the requirement to pay it before
regaining their voting rights does not serve any interest for the large percentage of these
individuals who simply cannot afford to pay the amount owed. See id. at 22; Burch Report at 2234. For the many disenfranchised persons “who genuinely cannot pay, and who offer no
immediate prospects of being able to do so,” disenfranchisement “erects a barrier without
delivering any money at all.” Jones v. Governor of Fla., 950 F.3d 795, 811 (11th Cir. 2020)
(internal quotation marks omitted). “The State cannot draw blood from a stone.” Id. at 827.
Even if N.C.G.S. § 13-1 were narrowly tailored to disenfranchise only those who could pay but
refuse, speculation about incentivizing people to pay restitution is not sufficiently compelling to
justify denying the fundamental right to vote.
Finally, State Board Defendants assert that the revisions to N.C.G.S. § 13-1 in the 1970s,
which made rights restoration automatic upon the completion of probation, parole, and other
supervision, served to “[e]liminat[e] or lessen[] the effect of the prior law’s discretionary
determinations as to whether a North Carolinian convicted of felonies deserves to have his or her
rights restored.” Ex. I at 4. To be sure, removing the requirement that individuals had to petition
a court to have their rights restored was a worthy and important measure accomplished by civil
rights leaders of the time. But improving some parts of a discriminatory, unconstitutional policy
does not supply cover to other unconstitutional parts of the policy that remain in place. Indeed,
as Rep. Michaux confirms, despite the best efforts of the civil rights leaders, the 1970s revisions
were a compromise that did not fully cure the discriminatory intent and effects of the prior law.
Ex. K ¶¶ 14-20 (Michaux Aff.). Prior disenfranchisement laws may have been worse than
today’s, but that is not a compelling interest for the continued requirement that individuals
complete probation, parole, or post-release supervision before regaining their voting rights.
35

 The State’s Compelling Interest Is in Restoring Voting Rights
Not only does the challenged disenfranchisement scheme fail to advance any compelling
government interest, it causes extensive harms beyond the disenfranchisement of people living in
the community. The government’s real interest is in re-enfranchising people, not
disenfranchising them. The General Assembly itself has declared by statute that one of the
primary purposes of sentencing a person convicted of a crime is “to assist the offender toward
rehabilitation and restoration to the community as a lawful citizen.” N.C.G.S. § 15A-1340.12.
Collateral consequences of felony convictions, such as disenfranchisement of persons
living under community supervision, ensure that while these individuals must still uphold the
duties of citizenship, “their conviction status effectively denies their rights to participate in social
life.” Burch Report at 40 (citation omitted). “The stigmas attached to their legal standing …
impacts their standing as citizens, their political participation, and their community
involvement.” Id. at 41 (citation omitted). Because the ability to vote is an important marker of
community standing and belonging, the deprivation of voting rights through felony
disenfranchisement hinders the reintegration of people with felony convictions. Id. Such
disenfranchisement deprives the individual “of his civic personality and social dignity,”
demonstrating society’s “indifference to his interests” and sending messages of political and
social exclusion that undermine efforts to reintegrate. Id. at 41-42; see Ex. E ¶ 6 (Gaddy aff.)
(“The inability to participate in the democratic process made me feel as if I was not a citizen.”).
Studies also show that “felony disenfranchisement increases recidivism.” Burch Report
at 42. One study found, based on analysis of data from the Bureau of Justice Statistics, that
people convicted of felonies in states that permanently disenfranchise people with such
convictions are ten percent more likely to reoffend in three years than people with felony
36

 convictions in states that do not permanently disenfranchise such persons, even after accounting
for individual criminal background and other characteristics. Id.
Disenfranchising citizens who are not incarcerated (or who were never incarcerated)
harms not only the individuals who are disenfranchised themselves, but also their families and
communities. Burch Report at 42-45. In North Carolina (and elsewhere), individuals with
felony convictions are tightly concentrated geographically: state prisoners are removed from a
small number of block groups (a census category corresponding to roughly 1,000 people, on
average) in the state, and the community supervised population also lives in a disproportionately
small number of block groups in the state. Id. at 43. This geographic concentration has dramatic
effects on neighborhood-level disenfranchisement. Id. In 2008, within the largest five North
Carolina block groups for young adult community supervision, roughly 1 of every 5 people aged
18-34 was living under community supervision and disenfranchised due to N.C.G.S. § 13-1. Id.
Living in high-conviction, high-disenfranchisement neighborhoods affects individuals in
many ways, even if they are not convicted and disenfranchised themselves. Burch Report at 43.
Voter turnout may decrease through several mechanisms. First, because “children and
newcomers learn the community’s participatory values as they observe ample instances of
engagement among their family members and peers,” neighborhoods that have fewer voters as
role models fail to transmit norms of participation effectively even to enfranchised residents and
future voters. Id. at 43-44. Second, spouses of people convicted of felonies also lose the
participatory effects of having a partner that votes. Id. at 44. Disenfranchisement ripples
throughout households and across generations.
There are other political ripple effects as well. In communities with disenfranchisement
laws, convictions reduce the number of voters, which reduces the political power of a
37

 community. This reduction happens not just by removing the disenfranchised individuals from
the voter rolls, but through other mechanisms as well. Concentrated disenfranchisement also
damages the formal and informal mechanisms of voter mobilization. Burch Report at 44.
Political parties tend to concentrate their efforts in places where mobilization is more effective
and often fail to mobilize communities with low socioeconomic status members. Id. They tend
to contact people who have voted before, especially those who have voted in primaries. Id.
Going door-to-door may yield contact with fewer voters in high-conviction, highdisenfranchisement neighborhoods, even though this technique is most effective for
mobilization. Id. at 44-45. There are fewer voters available to serve as discussion partners in
such neighborhoods, a factor that also reduces turnout. Id. at 45.
In short, Defendants have not advanced and cannot advance any compelling government
interest to which N.C.G.S. § 13-1 is narrowly tailored that justifies removing all persons on
probation, parole, or post-release supervision from the body politic that can vote for this State’s
elected leaders. Because the statute unduly and without justification subverts the will of the
people, it violates the Free Elections Clause.
III.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North Carolina
Communities Violates North Carolina’s Equal Protection Clause
N.C.G.S. § 13-1’s disenfranchisement of persons living in North Carolina communities

also violates North Carolina’s Equal Protection Clause, which provides broader protection for
voting rights than its federal counterpart. Strict scrutiny applies under Article I, § 19 because, in
multiple different ways, N.C.G.S. § 13-1 denies a class of North Carolinians of “substantially
equal voting power.” The law denies equal voting power (or any voting power) to all persons on
probation, parole, or post-release supervision, treating them differently from all other persons
living in the community, and from the subset of the community convicted of a felony but who
38

 have completed their period of supervision. The law independently triggers strict scrutiny under
Article I, § 19 because it has the intent and effect of depriving substantially equal voting power
to African Americans. The statute dates back to a post-Civil War effort to deny political power
to African Americans, and it continues to work as intended. Statewide, African Americans are
disenfranchised at 2.7 times the rate as whites, and in a number of counties, the
disenfranchisement rate of African Americans is over six times that of whites. Finally, the law’s
requirement that people on probation pay financial obligations to ensure they regain access to the
franchise is an impermissible wealth-based classification for the many people who simply cannot
afford to pay these enormous debts. As with the Free Elections Clause, Defendants cannot meet
their burden to show that these classifications satisfy strict scrutiny.
A.

North Carolina’s Equal Protection Clause Provides Greater Protection for
Voting Rights Than its Federal Counterpart

The Equal Protection Clause of the North Carolina Constitution guarantees that “[n]o
person shall be denied the equal protection of the laws; nor shall any person be subjected to
discrimination by the State because of race, color, religion, or national origin.” N.C. Const.,
art. I, § 19. It is well-established that “North Carolina’s Equal Protection Clause provides greater
protection for voting rights than federal equal protection provisions.” Common Cause, 2019 WL
4569584, at *113 (citing Stephenson v. Bartlett, 355 N.C. 354, 377-81 & n.6, 562 S.E.2d 377,
393-96 & n.6 (2002); Blankenship v. Bartlett, 363 N.C. 518, 522-28, 681 S.E.2d 759, 763-66
(2009)). In particular, North Carolina's Equal Protection Clause expansively protects “the
fundamental right of each North Carolinian to substantially equal voting power.” Stephenson,
355 N.C. at 379, 562 S.E.2d at 394 (emphasis added). “It is well settled in this State that the
right to vote on equal terms is a fundamental right.” Id. at 378, 562 S.E.2d at 393 (internal
quotation marks omitted).
39

 North Carolina courts have repeatedly applied this broader protection for voting rights to
strike down election laws under Article I, § 19 regardless of whether they violated federal equal
protection. In Stephenson, the Supreme Court held that the use of single-member and multimember districts in a redistricting plan violated Article I, § 19—even though such a scheme did
not violate the U.S. Constitution. 355 N.C. at 377-81 & n.6, 562 S.E.2d at 393-95 & n.6. The
Court held that, because the “classification of voters” between single- and multi-member districts
created a “distinction among similarly situated citizens” with respect to voting rights, it
“necessarily implicate[d]” the “fundamental right under the State Constitution” to “substantially
equal voting power and substantially equal legislative representation,” triggering strict scrutiny.
Id. at 377-78, 382, 562 S.E.2d at 393-94, 396. Addressing contrary federal precedent, the Court
explained that it is “beyond dispute that [the North Carolina Supreme Court] has the authority to
construe the State Constitution differently from the construction by the United States Supreme
Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights
than they are guaranteed by the parallel federal provision.” Id. at 381 n.6, 562 S.E.2d at 395 n.6
(alterations and internal quotation marks omitted).
In Blankenship, the Supreme Court held that Article I, § 19 mandates one-person, onevote in judicial elections, even though “the federal courts have articulated that the ‘one-person,
one-vote’ standard is inapplicable to state judicial elections” under the U.S. Constitution. 363
N.C. at 522-24, 681 S.E.2d at 762-64. The Court stressed that “[t]he right to vote on equal terms
in representative elections . . . is a fundamental right” under the North Carolina Constitution and
thus “triggers heightened scrutiny.” Id. And in Common Cause, the three-judge Superior Court
panel held that extreme partisan gerrymandering violates Article I, § 19 by “denying equal
voting power” to “similarly situated citizens,” even though the U.S. Supreme Court has declined
40

 to hold that partisan gerrymandering violates federal equal protection guarantees. 2019 WL
4569584, at *113-18.
B.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Triggers Strict Scrutiny Under Article I, § 19

Under Article I, § 19, strict scrutiny applies where either: (1) a “classification
impermissibly interferes with the exercise of a fundamental right,” or (2) a statute “operates to
the peculiar disadvantage of a suspect class.” Stephenson, 355 N.C. at 377, 562 S.E.2d at 393
(internal quotation marks omitted); accord Northampton Cnty., 326 N.C. at 746, 392 S.E.2d at
355. Thus, if a statute interferes with the exercise of a fundamental right—such as the right to
“substantially equal voting power”—for an identifiable group of people, strict scrutiny applies
even if the affected group is not a suspect class. Stephenson, 355 N.C. at 379, 562 S.E.2d at 394;
accord Northampton County, 326 N.C. at 747, 392 S.E.2d at 356.
N.C.G.S. § 13-1 deprives a group of North Carolinians of substantially equal voting
power, and thus triggers strict scrutiny under Article I, § 19, in four independent ways. First, the
statute creates a class of people living in North Carolina communities who, unlike all of their
neighbors, have no voting power. Second, the law provides for differential treatment within the
set of persons who have a felony conviction and live in North Carolina communities, allowing
those who have completed their probation, parole, or other supervision to vote but denying the
right to vote to those who have not. Third, the statute has the intent and effect of discriminating
against African Americans, depriving the African American community of substantially equal
voting power. In this respect, the statute also triggers strict scrutiny because it “operates to the
peculiar disadvantage of a suspect class.” Stephenson, 355 N.C. at 377, 562 S.E.2d at 393
(internal quotation marks omitted). Fourth, in conditioning the right to vote on the ability to pay
fines, fees, and restitution, the statute creates an impermissible wealth-based classification.
41

 The Law Denies Substantially Equal Voting Power to Individuals
Living in North Carolina Communities on Probation, Parole, or PostRelease Supervision
On its face, N.C.G.S. § 13-1 creates a class of persons living in North Carolina
communities who are treated differently from virtually everyone else with respect to their right to
vote. Voting-age persons who are on probation, parole, or post-release supervision following a
felony conviction are denied the right to vote, unlike their neighbors not on probation, parole, or
post-release supervision. These two groups send their kids to the same schools, work in the same
offices, pay the same taxes, and can attend the same political rallies and demonstrations, but only
one group can vote.
N.C.G.S. § 13-1 deprives this class of people of substantially equal voting power. They
have no “voting power” at all, even though they are “affected [by] and directly interested in”
who wins office the same as “those who are permitted to vote.” Cipriano v. City of Houma, 395
U.S. 701, 706 (1969) (striking down statute that “contain[ed] a classification which excludes
otherwise qualified voters who [were] substantially and directly interested in the [election
outcome]”). Because N.C.G.S. § 13-1 facially creates a distinction among citizens that
“implicates” the “fundamental right under the State Constitution” to “substantially equal voting
power,” it triggers strict scrutiny under Art. I, § 19. Stephenson, 355 N.C. at 377-78, 382, 562
S.E.2d at 393-94, 396; see also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627
(1969) (“[I]f a challenged state statute grants the right to vote to some bona fide residents of
requisite age and citizenship and denies the franchise to others, the Court must determine
whether the exclusions are necessary to promote a compelling state interest.”).

42

 The Law Provides for Unequal Voting Power Among Individuals with
Felony Convictions Living in North Carolina Communities
N.C.G.S. § 13-1 also discriminates within the subset of persons living in North Carolina
communities who have prior felony convictions. People with felony convictions who have
completed their probation, parole, or post-release supervision can vote, but those who have not
are denied any voting power. These two groups are “similarly situated.” Stephenson, 355 N.C.
at 378, 562 S.E.2d at 393-94. The people in both groups have felony convictions, have been
deemed by the State safe to return to society, and live and work amongst their communities. The
denial of substantially equal voting power to one of these two similarly situated groups of North
Carolinians triggers strict scrutiny under Stephenson. See id.
The Law Deprives African Americans Living in North Carolina
Communities of Substantially Equal Voting Power
N.C.G.S. § 13-1 independently is subject to strict scrutiny because the statute has the
intent and effect of discriminating against African Americans. A plaintiff bringing a race
discrimination claim under Art. I, § 19 “need not show that discriminatory purpose was the sole
or even a primary motive for the legislation, just that it was a motivating factor.” Holmes, 840
S.E.2d at 254-55 (internal quotation marks omitted). “Discriminatory purpose may often be
inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears
more heavily on one race than another.” Id. (internal quotation marks omitted).
As detailed in the export report of Dr. Vernon Burton, one of the nation’s foremost
historians on southern voting rights, North Carolina’s felony disenfranchisement scheme was
designed largely to target African Americans, and that intent carries through to this day. See
supra at pp. 4-12 (recounting history). The 1875 and 1877 provisions allowing broad-based
felony disenfranchisement were adopted as part of an explicitly racist campaign to reverse the
43

 gains of Reconstruction and to deny the franchise to African Americans. Burton Report at 2445; supra at pp. 5-8. The effort was “a calculated and deliberate attempt to disenfranchise black
voters in the face of the Fifteenth Amendment.” Burton Report at 35. That intent was wellrecognized at the time. Id. at 24-45. And while in the 1970s the efforts of North Carolina’s first
African American representatives since Reconstruction led to procedural reforms to facilitate the
re-enfranchisement process for eligible persons, those representatives were unable to obtain
changes to the law that would fully purge it of its racist origins and effect. Ex. K ¶¶ 14-20
(Michaux Aff.). Those racist origins and effects were well known at the time. Id. The civil
rights leaders thus sought to provide for automatic restoration upon release from incarceration as
opposed to completion of probation, parole, and post-release supervision and payment of all
fines and fees. But those efforts were stymied, including by the same politicians who opposed
integration and who opposed the Voting Rights Act. Id.; see Burton Report at 49-51.
To this day, the scheme to suppress the political power of African Americans through
felony disenfranchisement laws has worked as intended. There is no genuine dispute that the
continued disenfranchisement of individuals following their release from incarceration has a
“disproportionate impact” on African Americans in North Carolina. Holmes, 840 S.E.2d at 255
(internal quotation marks omitted). As the below chart demonstrates, African Americans
comprise 21.51% of the voting-age population in North Carolina, but 42.43% of those who are
disenfranchised while on probation, parole, or post-release supervision.

44

 This grossly disparate impact exists not just statewide, but in virtually every county
across the state. As mentioned, in every county across the state for which there is sufficient data
to perform comparisons, N.C.G.S § 13-1’s disenfranchisement of non-incarcerated persons strips
the right to vote from a greater percentage of the African American voting-age population than
the white voting-age population. Baumgartner Report at 14-15. In 44 counties, the
disenfranchisement rate of African Americans is over three times greater than it is for whites. Id.
at 16. In Durham County, the disenfranchisement rate of African Americans is 5.82 times that of
whites, in Wake County it is 6.21, in Buncombe County it is 6.93, in Mecklenburg County it is
an astonishing 7.26, and topping the list is Orange County, where the disenfranchisement rate for
African Americans is 7.82 times greater than for whites. Id.
These startling disparities have serious consequences for the political representation of
African Americans and their communities. African American communities do not have
45

 “substantially equal voting power” and the “the same representational influence or ‘clout’” when
so many members of their community cannot vote. Stephenson, 355 N.C. at 377-79, 562 S.E.2d
at 393-94.
The Law Denies Substantially Equal Voting Power Based on Wealth
Strict scrutiny independently applies because the law creates a wealth-based classification
for voting. As “conditions of probation,” a defendant must “[p]ay the costs of court, any fine
ordered by the court, and make restitution.” N.C.G.S. § 15A-1343(b)(9). Failing to pay
authorizes a multi-year extension of the term of probation—and thus a multi-year extension of
the denial of the right to vote. Id. § 15A-1342(a), 1344(a), (d). N.C.G.S. § 13-1 thus denies the
right to vote to people who have otherwise completed the terms of their probation, parole, or
post-release supervision but cannot afford to pay their court fines, fees, or restitution, while
similarly situated people who can afford to pay regain their right to vote.
It is well-settled that equal protection precludes a state from denying a person the right to
vote “on account of his economic status.” Harper v. Va. State Bd. of Elections, 383 U.S. 663,
668 (1966). That principle “bars a system which excludes” from the franchise “those unable to
pay a fee.” Id. As the Eleventh Circuit recently explained in enjoining a Florida statute that
disenfranchised people with felony convictions until they repaid fines and fees, “the basic right
to participate in political processes as voters and candidates cannot be limited to those who can
pay for a license.” Jones, 950 F.3d at 817. A state denies equal protection “whenever it makes
the affluence of the voter or payment of any fee an electoral standard.” Harper, 383 U.S. at 666.
That is exactly what N.C.G.S. § 13-1 does. “[S]imilarly situated felons who have
otherwise completed their sentences except for the payment of [fines, fees, and restitution] … are
treated differently on account of their inability to pay.” Jones, 950 F.3d at 820. Two North
46

 Carolinians could be convicted of the same crime, receive the same sentence, and each complete
all other terms of their probation, but the person “with money in the bank will be reenfranchised,” and the person “who can’t [pay] will continue to be barred.” Id. Accordingly, the
law denies “substantially equal voting power” to similarly situated persons based only on their
financial means, triggering strict scrutiny. Stephenson, 355 N.C. at 378, 562 S.E.2d at 393-94.
Strict scrutiny separately applies because “disenfranchisement is a continuing form of
punishment,” and “heightened scrutiny is triggered when the State alleviates punishment for
some, but mandates that it continue for others, based solely on account of wealth.” Jones, 950
F.3d at 819-20. “[T]he state may not treat criminal defendants more harshly on account of their
poverty.” Id. at 818. And “[c]ontinued disenfranchisement is indisputably punitive in nature.”
Id. at 819. North Carolina thus “has implemented a wealth classification that punishes those
genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is,
it punishes more harshly solely on account of wealth—and it does so by withholding access to
the franchise.” Id. 817. “Felons who are unable to pay (and who have no reasoned prospect of
being able to pay) will remain barred from voting, repeatedly and indefinitely, while for those
who can pay, the punishment will immediately come to an end.” Id. at 820.
The wealth classification imposed under N.C.G.S. § 13-1 is no small matter. Across all
probationers, the median total amount owed in fees, court costs, restitution, and supervision fees
is $2,441. Baumgartner Report at 22. These financial obligations are prohibitive for a
substantial percentage of disenfranchised persons. Only about half of people released from
North Carolina prisons are employed a year after their release. Burch Report at 32.
N.C.G.S. § 13-1’s disparate effects based on wealth are irrefutable, and Plaintiffs need
not show discriminatory intent to succeed on this equal protection claim. “The Supreme Court
47

 has squarely held that [the] intent requirement” applicable to race discrimination claims “is not
applicable in wealth discrimination cases.” Jones, 950 F.3d at 828 (citing M.L.B. v. S.L.J., 519
U.S. 102, 126 (1996)). But in any event, N.C.G.S. § 13-1 traces its roots in part to a deliberate
attempt to prevent poor persons from voting. Burton Report at 3, 34.
C.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Cannot Pass Strict Scrutiny Under Article I, § 19

For the same reasons described in relation to the Free Election Clause, N.C.G.S. § 13-1’s
disenfranchisement of individuals living in North Carolina communities cannot pass strict
scrutiny for purposes of Plaintiffs’ equal protection claims. Defendants have not identified any
compelling government interest to which the statute is narrowly tailored that justifies
categorically denying voting power to all persons living in North Carolina communities while on
probation, parole, or post-release supervision. See supra at pp. 29-34. There is never a
compelling state interest (or any interest) in intentionally discriminating against citizens on the
basis of race, particularly in the realm of voting rights. See N.C. Const. art. I, § 19 (“[no] person
be subjected to discrimination by the State because of race”). Nor could there be any compelling
state interest (or any interest) in discriminating against citizens on the basis of wealth in the
realm of punishment or voting rights. Harper, 383 U.S. at 668; Jones, 950 F.3d at 810-11.
IV.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North Carolina
Communities Violates North Carolina’s Freedom of Speech and Assembly Clauses
N.C.G.S. § 13-1 independently must be struck down because it violates North Carolina

Freedom of Speech and Association Clauses. Article I, §§ 12, 14. Voting is a form of core
political speech protected under the North Carolina Constitution, and N.C.G.S. § 13-1 constitutes
a direct ban on such speech by persons on probation, parole, or post-release supervision.
N.C.G.S. § 13-1 likewise precludes such persons from associating with a political party. The
48

 statute is no different from a law that banned persons on probation, parole, or post-release
supervision from leafleting, donating money to a political campaign, or giving a speech about
policy issues in the public park. Such laws unquestionably would be stuck down, and N.C.G.S.
§ 13-1 must be as well.
A.

Irrespective of Federal Law, Voting Is a Form of Protected Speech and
Association Under the North Carolina Constitution

“North Carolina Constitution’s Free Speech Clause provides broader rights than does
federal law.” Common Cause, 2019 WL 4569584, at *118 (citing Corum v. Univ. of N..C
through Bd. of Governors, 330 N.C. 761, 782, 413 S.E.2d 276, 290 (1992); Evans v. Cowan, 122
N.C. App. 181, 183-84, 468 S.E.2d 575, 577-78, aff’d, 477 S.E.2d 926 (N.C. 1996)). “The
words ‘shall never be restrained’ are a direct personal guarantee of each citizen's right of
freedom of speech.” Corum, 330 N.C. at 781, 413 S.E.2d at 289. Thus, while “both the North
Carolina Constitution and the United States Constitution contain similar provisions,” this State’s
courts “are not bound by the opinions of the federal courts” on matters concerning free speech
and association. Evans, 122 N.C. App. at 183-84, 468 S.E.2d at 577.
Of relevance here, “[v]oting for the candidate of one’s choice and associating with the
political party of one’s choice are core means of political expression protected by the North
Carolina Constitution’s Freedom of Speech and Freedom of Assembly Clauses.” Common
Cause, 2019 WL 4569584, at *119. “Voting provides citizens a direct means of expressing
support for a candidate and his views.” Id. As the North Carolina Supreme Court explained in
Van Bokkelen, the people “express[]” their will “by the ballot.” 73 N.C. at 220.
“[T]he Freedom of Assembly Clause independently protects [individuals’] voting and
their association with [a political party].” Common Cause, 2019 WL 4569584, at *120. “Just as
voting is a form of protected expression, banding together with likeminded citizens in a political
49

 party is a form of protected association.” Id. And like North Carolina’s Free Speech Clause, the
Freedom of Assembly Clause differs from the First Amendment and provides the people with the
explicit power to “instruct their representatives.” N.C. Const. Art. I, § 12. “[F]or elections to
express the popular will, the right to assemble and consult for the common good must be
guaranteed.” John V. Orth, The North Carolina State Constitution 48 (1995).
B.

N.C.G.S. § 13-1’s Disenfranchisement of Individuals Living in North
Carolina Communities Violates Article I, §§ 12 and 14

People living in North Carolina communities while on probation, parole, or post-release
supervision have the same free speech rights under Article I, § 14 as all other North Carolinians.
They have the right to attend a protest, to hand out fliers on issues of public importance, or to
phone bank on behalf of their preferred candidates. But N.C.G.S. § 13-1 bans these individuals
from expressing their views at the ballot box, denying them the right to engage in core protected
speech. Common Cause, 2019 WL 4569584, at *119. Such disenfranchisement directly censors
core political speech, which occupies “such a high status” that it deserves “the fullest and most
urgent” protection. Winborne, 136 N.C. App. at 198, 523 S.E.2d at 153 (internal quotation
marks omitted); see also Lewis v. Rapp, 220 N.C. App. 299, 305, 725 S.E.2d 597, 602 (2012)
(“Political speech regarding a public election lies at the core of matters of public concern”
entitled to constitutional protection (internal quotation marks omitted)).
Because voting is a form of core political expression, N.C.G.S. § 13-1 is no different
from a statute banning persons on probation, parole, or post-release supervision from speaking
their views in the town square. Nobody would seriously dispute that such a statute is
unconstitutional. See Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (invalidating
statute barring sex offenders from all social media as violating the First Amendment). Nor is
there any doubt that a statute banning persons on probation, parole, or post-release supervision
50

 from making political donations would be struck down on free speech grounds. And if such a
statute would trigger strict scrutiny, a fortiori N.C.G.S. § 13-1 must as well. Donating money to
a candidate cannot receive greater free speech protections than voting for that same candidate.
N.C.G.S. § 13-1 also severely burdens the right of political association of persons on
probation, parole, or post-release supervision. On the most basic level, such persons are
precluded from registering to vote, and are thereby inhibited from becoming members of the
North Carolina Democratic Party or North Carolina Republican Party. See Common Cause,
2019 WL 4569584, at *76 (explaining that “[t]he NCDP]s members include every registered
Democratic voter in North Carolina”). “[B]anding together with likeminded citizens in a
political party is a form of protected association,” id. at *120, and inhibiting persons from
registering with a political party interferes with the right to association. Moreover, in preventing
people living in North Carolina communities from voting, N.C.G.S. § 13-1 burdens the ability of
such persons to effectively associate with others who share the same political and policy views.
See id. at *122. It hampers the ability of all such persons to elect public officials who share their
policy preferences and will translate those preferences into legislation.
Because N.C.G.S. § 13-1 burdens—or outright bans—tens of thousands of people living
in North Carolina communities from engaging in core political speech and association protected
under Article I, §§ 12 14, the statute is subject to strict scrutiny. State v. Petersilie, 334 N.C.
169, 184, 432 S.E.2d 832, 840 (1993) (restrictions on political speech are subject to strict
scrutiny); accord Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C. 289, 298, 749 S.E.2d 429,
436 (2012). For the reasons explained above, Defendants cannot satisfy strict scrutiny.

51

 V.

N.C.G.S. § 13-1’s Conditioning the Right to Vote on Financial Payments Violates
the North Carolina Constitution’s Ban on Property Qualifications
Article I, § 11 of the North Carolina Constitution provides that, “[a]s political rights and

privileges are not dependent upon or modified by property, no property qualification shall affect
the right to vote or hold office.” This clause establishes that, “[u]nder North Carolina law,
property interests alone cannot establish voting rights.” Texfi Indus., Inc. v. City of Fayetteville,
44 N.C. App. 268, 273, 261 S.E.2d 21, 25 (1979), aff’d, 301 N.C. 1, 269 S.E.2d 142 (1980).
The framers of North Carolina’s Constitution deemed the ban on property qualifications
for voting “essential in the establishment of a more democratic form of government.” Roberts,
20 N.C. 398, 4 Dev. & Bat. (Orig.Ed.) at 260-61. It ensures that “all classes of the community
should be represented, and that every man should be entitled to a vote who should possess a
sufficient degree of independence and legal discretion, and who should have participated in the
public burthens and have had a residence in the State long enough to learn its true policy, and to
feel an interest in its welfare.” Id.
“Money, of course, is a form of property.” Reiter v. Sonotone Corp., 442 U.S. 330, 338
(1979); see also McCullen v. Daughtry, 190 N.C. 215, 129 S.E. 611, 613 (1925) (similar).
Across various constitutional provisions, money and other financial assets are treated as
“property.” See, e.g., DeBruhl v. Mecklenburg Cty. Sheriff's Office, 259 N.C. App. 50, 56, 815
S.E.2d 1, 5 (2018) (due process clause); Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.
595, 613-14 (2013) (takings clause). There is no basis for defining “property” under North
Carolina’s ban on property qualifications any differently. The plain text of the provision
encompasses all forms of “property,” and applying the provision to include money accords with
its original intent as well. Financial qualifications exclude “classes of the community” from the

52

 franchise, the precise evil that the ban on property qualifications sought to prevent. Roberts, 20
N.C. 398, 4 Dev. & Bat. (Orig.Ed.) at 260-61.
By disenfranchising people based on failure to pay court costs, fees, and restitution,
N.C.G.S. § 13-1 violates the constitutional ban on property qualifications. A person may have
otherwise completed all terms of their probation, but the probation and accompanying
disenfranchisement may be extended solely because the person does not have enough money to
pay all of their obligations. In other words, the statute’s requirement that a person receive an
“unconditional discharge” from probation effectively requires that a person own a particular
amount of money—equal to the total amount they owe in costs, fees, and restitution—in order to
ensure they will regain their voting rights. The statute thus directly makes “political rights and
privileges . . . dependent upon . . . property,” in violation of Article I, § 11.
A property qualification of any degree is unconstitutional, but the onerous and frequently
prohibitive nature of the property qualifications under N.C.G.S. § 13-1 bears emphasis. As
described, the median total amount of financial obligations that probationers owe is $2,441.
Baumgartner Report at 22. There can be no genuine dispute that numerous North Carolinians
simply do not have enough money to pay their court costs, fees, and restitution, and thus do not
have enough money to ensure that they can regain their right to vote.
VI.

If Necessary, the Equities Strongly Favor a Preliminary Injunction
While Plaintiffs have established that they are entitled to summary judgment as a matter

of law, this Court alternatively should issue a preliminary injunction. Plaintiffs are, at a
minimum, likely to succeed on the merits, and the equities strongly support an injunction to
ensure that tens of thousands of North Carolinians are not wrongly disenfranchised in November.

53

 A.

Plaintiffs Are Likely to Succeed on the Merits

For the reasons explained above, plaintiffs are likely to succeed on their challenge to
N.C.G.S. § 13-1’s disenfranchisement of persons living in North Carolina communities.
B.

Plaintiffs Will Suffer Irreparable Harm Absent an Injunction

Absent a preliminary injunction, Plaintiffs are “likely to sustain irreparable loss.”
Triangle Leasing, 327 N.C. at 227, 393 S.E.2d at 856. “Courts routinely deem restrictions on
fundamental voting rights irreparable injury.” Holmes, 840 S.E.2d at 266 (quoting League of
Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014)). “[D]iscriminatory
voting procedures in particular are the kind of serious violation of the Constitution for which
courts have granted immediate relief.” Id. (quoting League of Women Voters of N.C., 769 F.3d
at 247) (alterations omitted). “The need for immediate relief is especially important” in the
context of voting rights because “once the election occurs, there can be no do-over and no
redress.” Id. (quoting League of Women Voters of N.C., 769 F.3d at 247). “The injury to these
voters is real and completely irreparable if nothing is done to enjoin the law.” Id. (quoting
League of Women Voters of N.C., 769 F.3d at 247) (alterations omitted).
In recent years, numerous courts in North Carolina have applied this principle to
preliminarily enjoin laws that restricted access to the franchise or otherwise threatened to impede
free and fair elections. See, e.g., Holmes, 840 S.E.2d 244 (entering preliminary injunction
against voter ID law); N.C. State Conf. of NAACP v. Cooper, 2019 WL 7372980 (M.D.N.C. Dec.
31, 2019) (same); Harper, 19 CVS 12667, Order on Inj. Relief (entering preliminary injunction
against use of gerrymandered congressional districts); Action NC v. Strach, 216 F. Supp. 3d 597
(M.D.N.C. 2016) (granting preliminary injunction regarding voter registration procedures);
Poindexter v. Strach, 324 F. Supp. 3d 625 (E.D.N.C. 2018) (preliminarily enjoining North
54

 Carolina statute removing third party candidates from ballot); N.C. State Conf. of the NAACP v.
N.C. State Bd. of Elections, 2016 WL 6581284 (M.D.N.C. Nov. 4, 2016) (granting preliminary
injunction against purging of voters from voter registration lists); City of Greensboro v. Guilford
Cty. Bd. of Elections, 120 F. Supp. 3d 479 (M.D.N.C. 2015) (issuing preliminary injunction
against law restructuring Greensboro city elections).
Failing to enjoin N.C.G.S. § 13-1 will cause irreparable harm just like the laws in all of
the above cases. Unless enjoined, N.C.G.S. § 13-1 will prevent more than 56,500 individuals
living in North Carolina communities from voting in the November 2020 general election, which
will feature contests for President, U.S. Senate, and the entire Council of State. “The injury to
these voters is real and completely irreparable if nothing is done to enjoin the law.” Holmes, 840
S.E.2d at 266 (internal quotation marks omitted). These voters will have forever lost the
opportunity—and their right—to vote on the elected leaders who will decide life-and-death
matters over the next few years, such as access to healthcare, school funding, environmental
regulations, and countless other critically important issues.
Indeed, Plaintiffs in this case have articulated the acute harms they and other members of
the community will suffer absent an injunction. For instance, Plaintiff Shakita Norman is a
single mother who “would like to be able to effect change in the community,” and particularly to
improve its public schools for her children, but N.C.G.S. § 13-1 “prevents [her] voice from being
heard.” Ex. D ¶ 11. Plaintiff Susan Marion, who was convicted of a drug offense after losing
her home and car in Hurricane Florence, explains that if she were able to vote, she would “feel
that [she] would be able to voice [her] opinion instead of feeling strangled.” Ex. B ¶ 13. Corey
Purdie from Plaintiff Wash Away Unemployment similarly attests that the individuals he serves
“feel silenced, voiceless, and powerless by their inability to vote.” Ex. G ¶ 18.
55

 “Disenfranchisement prevents justice-involved individuals from advocating for themselves, their
families, and their communities in the most direct way possible: participation in the democratic
process.” Id. ¶ 16.
The harms that will be incurred without an injunction are not limited to the individuals
who are disenfranchised, but extend to their surrounding communities. African American
communities in particular will suffer harms from the continued enforcement of N.C.G.S. § 13-1
given the grossly disproportionate impact of the law on African Americans in North Carolina.
As Rev. Dr. T. Anthony Spearman of the North Carolina State Conference of the NAACP
explains in the attached affidavit, “[w]hile voting is a personal, individual right, its collective
impact is of course far greater.” Ex. H ¶ 29. “[H]arsh and unfair probation and post-release
felony disenfranchisement laws . . . are responsible for racial disparities in democratic
participation and representation in [North Carolina].” Id. ¶ 12. A preliminary or permanent
injunction is necessary to prevent the harms that North Carolina’s African American
communities have suffered for far too long from felony disenfranchisement.
C.

The Balance of Equities Strongly Favors a Preliminary Injunction

Finally, “a careful balancing of the equities,” A.E.P. Indus., 308 N.C. at 400, 302 S.E.2d
at 759, weighs decidedly in favor of a preliminary injunction. “[T]he public interest . . . favors
permitting as many qualified voters to vote as possible.” Holmes, 840 S.E.2d at 266 (internal
quotation marks omitted). “[F]avoring enfranchisement . . . is always in the public interest.”
Action NC, 216 F. Supp. 3d at 648 (internal quotation marks omitted). That maxim follows from
the bedrock principle that “[f]air and honest elections are to prevail in this state.” McDonald,
119 N.C. at 673, 26 S.E. at 134. Plaintiffs seek to vindicate not only their own interest, but the
paramount public interest in ensuring that North Carolina’s 2020 elections reveal, “fairly and
56

 truthfully, the will of the people.” Common Cause, 2019 WL 4569584, at 2. An injunction
prohibiting the enforcement of N.C.G.S. § 13-1 against persons on probation, parole, or postrelease supervision is necessary to fulfill that mandate.
Corey Purdie of Wash Away Unemployment best explains the import of striking down
N.C.G.S. § 13-1: “give people hope and they will want to contribute; give people a voice and
they will speak; give people their rights and they will exercise them.” Ex. G ¶ 24.
CONCLUSION
For the foregoing reasons, Plaintiffs request that this Court enter summary judgment
declaring N.C.G.S. § 13-1 unconstitutional to the extent it prevents persons on probation, parole,
or post-release supervision from voting in North Carolina elections, and enjoin enforcement of
N.C.G.S. § 13-1 against persons on probation, parole, or post-release supervision for the
November 2020 and all future elections.

57

 Respectfully submitted this the 8th day of May, 2020.
FORWARD JUSTICE

ARNOLD & PORTER
KAYE SCHOLER LLP

_/s/ Daryl Atkinson______________________
Daryl Atkinson (NC Bar # 39030)
Whitley Carpenter (NC Bar # 49657)
400 W Main St., Suite 203
Durham, NC 27701
daryl@forwardjustice.org

R. Stanton Jones*
Elisabeth S. Theodore*
Daniel F. Jacobson*
Graham White*
601 Massachusetts Ave. NW
Washington, DC 20001-3743
(202) 942-5000
stanton.jones@arnoldporter.com

Counsel for Plaintiffs

PROTECT DEMOCRACY PROJECT
Farbod K. Faraji*
77 Pearl Street
Middletown, CT 06459
(202) 579-4582
farbod.faraji@protectdemocracy.org
Aditi Juneja**
115 Broadway, 5th Floor, NY, NY 10006
(202) 308-0163
Aditi.juneja@protectdemocracy.org
Counsel for Plaintiffs
* Admitted pro hac vice
** Pro hac vice forthcoming

58

 CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the foregoing to counsel for
Defendants via e-mail, addressed to the following persons at the following addresses which are
the last addresses known to me:
Brian D. Rabinovitz
114 W. Edenton St.
Raleigh, NC 27603
BRabinovitz@ncdoj.gov
Counsel for Legislative Defendants

Paul M. Cox
Olga Vysotskaya
114 W. Edenton St.
Raleigh, NC 27603
pcox@ncdoj.gov
OVysotskaya@ncdoj.gov
Counsel for State Board Defendants

This the 8th day of May, 2020.

/s/Daryl Atkinson
Daryl Atkinson (NC Bar # 39030)

 Exhibit 

H. Stantsn Jones
+1 2029425568 {Direct


 

November 20, 2019

VIA HAND DELIVERY

T115 Honorable Paul C. Ridgew-ay
Santor Residmt-t Judge

Wake: County Jussticc Center

300 8. Salisbury Strert

Ralsigh, NC 27602

Re; Success Initiative, at (11., v. Timothy K. Moore, in Hi3 O??icial
Capacity ax Speaker offhe North? Carolina. Home of Representatives, at
at, (3 32 (?elL/t wake County Supcrior Court:

Dear Judge Ridgcway:

We rcpresarzt the. plaintiffs in the Emma?referenced action, which was filed on
November '15, 201.9. The lawsuit involws a facial} Challenge to the validity of an act: at
the General Assembly; namely, the lawsuit involves a fact-211 challenge to the North
Catalina statute pt?Q?Viding {or the disenfranchisement "of individuals previousty convicted
of fetonies, N.C.GS.A. 3?1. This action. therefore must be heard and datermrined by a
thxreawjudge panel u:r1derN.C. Gen. Stat. {-0.671 Pursuant to NC. Gen.
Stat. 1?267. 1, I have enclosed a capy of the complaint. Ipreviously an electronic
copy of the ?complaint t0 Ms. Myers.

Please: notify the Chief justice ti) ensure the expeditious appointment of a ?ame?
judge perm] to hear this case.

If yen have any quastions or if there is any addittcnal infurmati?on I can provida,
please do mt. hesitate t0 let: me know.

Very truly yours,

r? 
I AW

R. Stanton 01168

    

Enclosure-

Amol?d 8:1 Farrier Kaye Scimitar 
(2501 Massachusetts Ave, NW t?Jast?ti?an, I 

Arna?d ??zpm?m?

The Homrable Paul Ridgew?ay
November 20., 2019
Page 2

cc: Daryl Aikinson (via cma?)
Elisabeth TI?Ieociure (via 3mm 
Daniel (?via email)
Ben} 21-min 'Berwick (Via emaii)
Farbod Faraji (via (tn-mil)
Paul (30x (via airmail)
Phillip (via email)

Exhibit 

 

3

FORWAHDJUSTIBE

 

March 6, 2020

VIA HAND DELIVERY

The Honorable Cheri Beasley
Chief Justice

North Carolina Supreme Court
2 Morgan St

Raleigh, NC 27601

The Honorable Paul C. Ridgeway
Senior Resident Judge

Wake County Justice Center

300 S. Salisbury Street

Raleigh, NC 27602

Re: Community Success Initiative, er al, v. Timothy K. Moore, in His Official
Capacity as Speaker of the North Carolina House of Representatives, et al. 19
CVS 15941, Wake County Superior Court

Dear Chief Justice Beasley and Judge Ridgeway:

We represent Plaintiffs in the above-referenced action and send this letter to respectfully
request that a three-judge panel be appointed in this case as soon as is practicable. This lawsuit,
originally ?led by Plaintiffs on November 20, 2019, is a facial challenge to provisions of
N.C.G.S.A. 13-1, the North Carolina statute providing for the disenfranchisement of
individuals previously convicted of felonies. The lawsuit alleges that the disenfranchisement of
individuals who are no longer incarcerated (or were never incarcerated) violates multiple
provisions of the North Carolina Constitution. I have enclosed a copy of the Amended
Complaint with this letter.

Plaintiffs ?led this action four and a half months ago, and ?led a motion to set an
expedited case schedule that same day. On December 3, 2019, Plaintiffs ?led an Amended
Complaint, and the State Board Defendants and the Legislative Defendants ?led Answers to the
Amended Complaint on January 16, 2020 and January 21, 2020, respectively. Although both
sets of Defendants initially ?led motions to dismiss the Amended Complaint, both sets of
Defendants subsequently withdrew those motions to dismiss on January 29, 2020. Upon
withdrawing those motions, Defendants all agreed that this case was ripe and ?t for appointment
of a three?judge panel. In turn, Plaintiffs agreed to a continuance of a hearing that Plaintiffs had
calendared for February 4 on their motion to set an expedited case schedule (which has been

400 West Main Street, Suite 203, Durham, NC 27701
(919) 323 3889 

9


 

pending since November 20, 2019), as the parties agreed that any expedited case schedule should
be set by the three-judge panel that will hear this case.

Thus, all parties agree that a three-judge panel should be appointed to preside over this
matter pursuant to NC. Gen. Stat. Plaintiffs respectfully request that a
panel be appointed to ensure that, if Plaintiffs prevail in this case, they may obtain
relief before the November 2020 elections. Based on recent estimates, approximately 70,000
North Carolinians who are currently disenfranchised would regain their right to vote if Plaintiffs
were to prevail. Many of these individuals have been disenfranchised for years following their
release from incarceration, even though they are law-abiding members of their communities and
their lives are governed by the laws passed by elected of?cials. ?The right to vote is one of the
most cherished rights in our system of government.? Blankenship v. Bartlett, 363 NC. 518, 522,
681 759, 762 (2009). ?No right is more precious in a free country than that of having a
voice in the election of those who make the laws under which, as good citizens, we must live.?
Id. (internal quotation marks omitted). Prompt appointment of a three-judge panel is necessary
to ensure that Plaintiffs and tens of thousands of other North Carolinians are not denied their
fundamental right to vote in another election because of a delay in adjudicating this case.

If you have any questions or if there is any additional information I can provide, please
do not hesitate to let me know. Thank you for your consideration of this matter.

rytruy ?rs,
W7

Daryl V. Atkinson

 

cc: Whitley Carpenter (via email)
R. Stanton Jones (via email)
Elisabeth Theodore (via email)
Daniel Jacobson (via email)
Benjamin Berwick (via email)
Farbod Faraji (via email)

Paul Cox (via email)

Olga Vysotskaya (via email)
Brian Rabinovitz (via email)

400 West Main Street, Suite 203, Durham, NC 27701
(919) 323 3889 

Exhibit 

May 11, 2020
VIA U.S. MAIL
The Honorable Cheri Beasley
Chief Justice
North Carolina Supreme Court
2 E Morgan St
Raleigh, NC 27601
The Honorable Paul C. Ridgeway
Senior Resident Judge
Wake County Justice Center
300 S. Salisbury Street
Raleigh, NC 27602
Re:

Community Success Initiative, et al., v. Timothy K. Moore, in His Official
Capacity as Speaker of the North Carolina House of Representatives, et
al., 19 CVS 15941, Wake County Superior Court

Dear Chief Justice Beasley and Judge Ridgeway:
Further to our previous letter dated March 6, 2020, we write on behalf of
Plaintiffs concerning appointment of a three-judge panel in the above-referenced action.
As previously explained, this action was commenced on November 20, 2019 and
Defendants have filed answers with no motions to dismiss. All parties have agreed since
January that a three-judge panel should be appointed pursuant to N.C. Gen. Stat. § 1267.1(b1) & (b2).
Today, Plaintiffs filed a Motion for Summary Judgment or in the Alternative a
Preliminary Injunction. The motion seeks an injunction, either permanent or preliminary,
barring enforcement of N.C.G.S. § 13-1’s disenfranchisement provisions with respect to
individuals living in North Carolina communities on probation, parole, or post-release
supervision. The motion is time-sensitive: Plaintiffs seek an injunction in time to restore
the right to vote for such disenfranchised persons before the November 2020 general
election.
In light of these developments, we respectfully reiterate our request for prompt
appointment of a three-judge panel, which is necessary to ensure that Plaintiffs and tens
of thousands of other North Carolinians are not denied their fundamental right to vote in
another election because of a delay in adjudicating this case.

Forward Justice
400 W. Main Street, Suite 203   Durham, NC 27704   www.forwardjustice.org

 The Honorable Cheri Beasley and the Honorable Paul C. Ridgeway
May 11, 2020
Page 2
If you have any questions or if there is any additional information I can provide,
please do not hesitate to let me know. Thank you for your consideration of this matter.
Very truly yours,

Daryl Atkinson
Counsel for Plaintiffs

cc:
Whitley Carpenter (via email)
Farbod Faraji (via email)
R. Stanton Jones (via email)
Elisabeth Theodore (via email)
Daniel Jacobson (via email)
Paul Cox (via email)
Olga Vysotskaya (via email)
Brian Rabinovitz (via email)
Enclosures