STATE OF NORTH CAROLINA COUNTY OF WAKE COMMUNITY SUCCESS INITIATIVE, at Plaintiffs, V. TIMOTHY K. MOORE, in his of?cial capacity as Speaker of the North Carolina House of chresenta?tives, at 511., Defendants. IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION BRIEF OF THE DISTRICT OF COLUMBIA, CALTFORNTA, HAWAH, MASSACHUSETTS, AND NEVADA AS AMICI IN SUPPORT OF PLATNTIFFS INTRODUCTION AND INTEREST OF AMICI STATES . 1 ARGUMENT . 4 1. States? Recent Experiences, Have Shown That Expanding The. Franchise Bene?ts Communities And Improves Public A. States have successfully expanded the franchise to former -. . 4 B. Expanding the franchise can promote civic participation and improve public safety Does Not Further Any Compelling Governmental Interests . - 15 A. Felon disenfranchisement IaWs like N.C.G.S. 13-1 do not promote any traditional criminal justice goals 15 B. Systems that restore the franchise upon release from incarceration are less administratively burdensome and less confusing than systems like North Carolina?s 19 1. Systems that restore the franchise when felons leave prison are easier to administer than post?release disenfranchisement systems . 20. 2. Restoring the franchise upon release from prison reduces confusion about how and when former felons become" eligible to vote 23 TABLE OF CONTENTS CONCLUSION 'u-uun-n-n-n-d 'u-vo-o-qi 2; TABLE OF AUTHORITKES Cases Atkins v. Virginia, 536 U.S. 304 (2002) 1'7 Bearden v. Georgia, 461 U.S. 660- (1983) 1.8, 19 Ewing v. California, 538 US. 11 (2003) . . - Jones DeSantis, No. 19? ext?300, 2020 WL 2618062 (NHD Fla. May 24, 2020) . 5 Jones 12. Governor of 1a., 950 F.3d 795 (1 1th Cir. 2020) (per curiam) 19 Statutes Ala. Code 15-22-361 . . . . . . 22 DC. Code 14001.07. . . 21 NY. Election Law 5-106 . 7 13?1 . . 1.5, 19, 22, 26 An Act Relating to VoterRegistr-ation Procedures, ch. 24-6, 15-, Wash. Rev. Code (repealed 2009) Legislative History Voter Registration Protection Act: Hearing on SB. 488 Before S. Comm. on Edue., Health Envtl. A?airs, 2007 Leg, 423rd SeS-s. (Md. 2007).. 12 Wash. H. Comm. on State Govt Tribal Affaiis, Report on H. B. 1517, 2009 Reg Sass. (2009) 13, 24 ii Executive and Legislative Materials AB. 1344., 2017?2018 Reg. Sess. (Cal. 2017) AB. 2466, 2015-2016 Reg. 2016).. 6 A.C.A. 6, 2019-2020 Reg. Sess. (Cal. 2019) 6 HB. 19?1266, 71st. Gen. 2019 Reg. Sess. (Colo. 2019) 6, 13 HB. 5042, 2001 Gen. Assen'l'b.., Jan. Sess. (Conn. 2001) 6 HB. 126', 140thGen. Assemb. (Del. 2000) . 5 SB. 242, 148th Gen. Assemb. (Del. 2016) 7 23rd Council (DC. 2019) . . . .1 SB. 7066, 2019 Leg, Reg. Sess. (Fla. 2019) 5 Voting Restoration Amendment, Ballot Initiative 14-01 (Fla. 2018) 5 HB. 265, 2018 Reg. Sess. (La. 2018) . 6 HE. 980, 2015 Reg. Sess. (Md. 2015) .. LB. 53, 99th Leg, Sess. (Ne?b. 2005) 5 AB. 431, 80th Sess. (Nev. 2019) . 5 AB. 5823, 2018-2019 Reg. Sess. (NJ. 2019). 7, 9, 14 SB. 2282, 2010?2011 Reg. Sess. (NJ. 2012) . 7 HB. 64, 2005 Reg. Sess. (N .M. 2005) . 7 SB. 204, 2001 Reg. Sess. (NM. 2001) . - . ..5 AB. 9706, 2010 Assemb., Reg. Sess. (NY. 2010) . . 8. NY. Exec. Order No. 181 (Apr. 18, 2018) . 7, 8, 14 HB. 7938, 2006 Gen. As-semb.., Jan. Sess. (R1. 2006) . 7, 13, 14,20, 21 Va. Exec. Order No. 65 (July 15, 2013) 5 HE. 1517, 61st Leg, 2009 Reg. Sess. (Wash. 2009) 7, 23 SB. 5207, 66th Leg., 2019 Reg. Sess. (Wash. 2019) 8 HB. 75, 64th Leg.,. 2017 Gen. Sess. (Wyo. 2017) 6 Other Alabama Alliance to Restoxe the Vote Brennan Center for Justice, Voting Rights Denied in Alabama (Jan. 17, 2006) 22, 25 Christina Beeler, Article, Felony Disenfranchisement Laws: Paying and Re?Paying a Debt to Society, 21 U. Pa. J. Cons?t. L. 1071 (2019) 8, 13, 17 Rebecca Beitsch, Felony Voting Laws Are Confusing; Activists Would Ditch Them Altogether, Pew (Apr. 5, 2018)26 Brennan Center for Justice Demos: A Network for Ideas Action, Boards of Elections ?Continue Illegally to Disenfranchise Voters with Felony Convictions (Mar. 2006) 25 Bruce E. Cain Brett Parker, The Uncertain Future of Felon Disen?'anchisement, 84 Mo. L. Rev. 935 (2019) 2, .3 James Call, Study Shows Ex-Cons Bene?t from Rights Restoration, wfsu Pub. Media 10, 1 1 Jean Chung, The Sentencing Project, Felony Disen?ranchisement: A Primer (updated Dec. 2019) . 2 DC. Board of Elections, FA Qs for Incarcerated Voters cf: Returning Citizens . . . Dean Esserman H. Philip" West, Without a Vote, Citizens Have No Voice, The Providence Journal (Sept. '25, 2006) . . 12 Alec C. Ewald, An ?Agendafor Demolition The Fallacy and the Danger of the ?Subversive Voting Argument for Felony Disenfranchisement, 36 Colum. Hum. Rts. L. Rev. 109 (2004) . 10 iv Abby Goodnough, In a Break from the Past, Florida Will Let Felons Vote N. Y. Times (Apr. 6, 2007) 11 AndrewA. Green Felons- Gain Right to Vote Bali San (Apr. 25, 5 Guy Padraie Hamilton-Smith Matt Vogel, The Violence of Voicelessness: The Impact of Felony Disen?anchisement on Recidivism, 22 Berkeley La Raza L.J. 407 (2012) . 18 Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disen??anchisement. 56 Stan. L. Rev. 1147 (2004) . - - .. 16., 17, 18 Erin Kelley, Brennan Ctr. for Justice, Racism Felony Disenfranchisement: An Intern/Vined History (May 2017) .. 1.4 Lawyers? Comm. for Civil Rights, 5 0-State Report on Re-Enfranchisement A Guide to Restoring Your Right to Vote (Sept. 21 Morgan McLeod, The Sentencing Project, EXpanding the ote?: Two Decades of Felony Disenfranchisement Reform (Oct. 2018) . 4 Ryan A. Partelow, The wenty-First Century Poll Tax, 47 Hastings Const. L. Q. 425 (2020) . 18 Press Release, Cal. Secretary of State, Secretary of State Alex Padilla Launches ?Restore Your Vote? Tool to. Help Californians with Criminal Convictions Know Their Voting Rights (Oct. 17, 2018) . 9 Scores of Felons Voted Illegally, The Seattle Times (Jan. 23, 2005) 23 Christopher Uggen 82; Jeff Manza, Democratic Contraction? Political Consequences of Felon DisenfranchiSement in the United States, 67 Am. Soc. Rev. 777 (2002) Christopher ?Uggen Jeff Maritza, Voting and Subsequent Crime and Arrest: Evidence ?oor a Community Sample: 36 Colum. Hum. Rte. L. Rev. 193 (2004) . . 10, 11, 12 Christopher Uggen et al., The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016 (Oct. 2016) 1, 14 VCU News, Restoring Voting Rights of Felons Is Good Public Policy, VC Expert Says (Apr. 26, 2016) . . 1 0 Woman Convicted of Voter Fraud No Longer Wants to Cast Ballot, TwinCities.com (May 21, 2007) .26 Erika W000, Brennan Ctr. for Justice, Restoring the Right to Vote (May 2009) 9, I2, 16, .17, 20, 23 Erika Wood, Turning Back the Clock in Florida, Brennan Ctr. for Justice (Mar. 11, 2011) . . 1 1 Erika Wood Rachel Bloom, Am, Civil Liberties Union Brennan Ctr. for Justice, De Facto Disenfranch-isemenr (2008) 24, 25, 26 'Vi ENTRODUCTEON AND ENTEREST 0F AMICI STATES The District of Columbia and the States. of California, Hawaii, Massachusetts, and Nevada (collectively, ?Amici States?) file this brief as amici curiae in support of plaintiffs. Amici States are home to millions of Americans with past. felony convictions who are now living and working in their communities. Ascf 2016, however, an estimated 6.1 million people across the United States could not vote because of state laws that disenfranchise citizen's convicted of felony offenses. Christopher Ug-gen et al., The Sentencing Project, 6 Millibn Lost Voters: State~LeveZ Estimates of Felony Disen?anchisement, 2016 at 3 (Oct. 2016).1 Seventy~seven percent of these individuals, or about 4.7 million Americans, have completed their terms of incarceration and are living in their communities but remain disenfranchised. Id. at 6, 14. The result is that approximately 1 in every 40 adults in the United States cannot vote because of a felony conviction. Id. at 3. Felon disenfranchisement is the product of a patchwork of state laws, which vary widely. Two States, Maine and Vermont, do not restrict in any way the voting rights of convicted felons, including those currently in prison.2 Jean Chung, The Available (download PDF). 3 The Council of the" District of Columbia is currently considering a bill that would expand the franchise to residents currently incarcerated for felony convictions. 323?0324, 23rd Council (DC. 2019). Sentencing Project, Felony Disenfranchisement: A Primer 1 (updated Dec. 2019).3 The District of Columbia and seventeen States automatically restore a former felon?s voting rights upon release from incarceration. Id.4 California, Connecticut, and New York5 allow people with felony convictions on probation to vote.6 Id. Seventeen States, including North Carolina, require former felons to complete the terms of their imprisonment, parole, and probation before they can regain the right to vote. 161.7 Eleven States disenfranchise some or all felons even after they have served their prison sentences and completed their terms of probation or parole. Id 3 According to recent survey data, ?on the whole, Americans are unsure of the goals of dis.enfranchisement..? Bruce E. Cain Brett. Parker, The Uncertain More ofFeZon Disenfranchisemenr, 84 Mo. L. Rev. 935, 949 (2019). ?[R]estoration of voting rights,? by contrast, can ?provide[] a clear marker of reintegration and 3 Available at (download PDF). 4 Those States include Colorado, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oregon, Rhode Island, and Utah. Chung, supra, at 1. 5 Since 2018, New Yorkers on parole are also eligible for restoration of voting rights through the Governor?s clemency power. Id. n.a. 6 As of 2018, Louisiana also allows felons on probation or parole to vote if they have not been in prison for the past ?ve years. Id. n.b. 7 Those States "include Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia, and Wisconsin. Id. '8 Those States include Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Tennessee, Virginia, and Wyoming. Id. 2 acceptance as a stakeholder in a community of law?abiding citizens,? Christopher Uggen Jeff Manza, Democratic Contraction? Political Consequences of'Felon Disenfranchisement in the United States, 67 Am. Soc. Rev. 777, 794 (2002). To that end, States are actively grappling with their felon disenfranchisement laws. Since 19973 23 States, including several Amici, ?have moved towards restoring the voting rights of individuals who have been convicted of "felonies.? Cain Parker, supra? at 938. These initiatives to expand the franchise embrace the notion that allowing former felons to vote bene?ts both the returning citizens and. the communities they rejoin. Amici States have an interest in promoting civic participation and public safety by reintegrating former felons as full-fledged, productive members of their societies. Moreover, States? experiences expanding the franchise have been positive and underscore the fact that there is no compelling interest in excluding citizens who have otherwise been reintegrated into. their communities from voting. North Carolina?s felon d?isenfranchisement law, which conditions restoration of voting rights upon a former felon?s satisfaction of all terms of his probation, parole, and legal ?nancial obligations, is out of step with these important interests. ARGUMENT i. States9 Recent Experiences Have Shown That Expanding The Franchise benefits Communities And Improves Public Safety. States across the country have implemented a number of recent measures to restore the franchise earlier and more easily. These efforts include laws. repealing lifetime disenfranchisement, allowing felons to vote while completing the terms of their probation or parole, eliminating requirements to pay all legal ?nancial obligations before voting rights will be restored, and providing information to felons leaving correctional facilities about restoration of voting rights and voter registration. These efforts re?ect States.? understanding that restoring voting rights to former felons helps these individuals to fully reintegrate into their communities, thereby fostering civic participation and improving public safety. Put simply? it is in States? interest to broaden the franchise to former felons "who have successfully rejoined their communities. A. States have successfully expanded the franchise to former felons. Over the past twenty years, States have restored the right to vote to more than one. million citizens by reforming their felon disenfranchisement laws. Morgan McLeod, The. Sentencing Project, Expanding the Vote: wo Decades of Felony Disenfranchisement Reform 3 (Oct. .2018).9 For example, Delaware, Florida, 9 Available at (download PDF). 4. Maryland, Nebraska, Nevada, and New Mexico repealed laws that had permanently disenfranchised convicted felons for life. See HB. 126;, 140th Gen. Assemb. (Del. 2000) (amending the state constitution to repeal lifetime disenfranchisement); Voting Restoration Amendment, Ballot Initiative 14-01 (Fla. 2018.) Andrew A. Green, Felons Gain Right to Vote, Balti Sun (Apr. 25, .2007)? (describing Maryland law replacing lifetime disenfranchisement with restoration upon completion of sentence); LB. 53, 99th Leg, Sess. (Neb. 2005) (repealing lifetime disenfranchisement and automatically restoring voting rights two years after completion of sentence); AB. 431, 80th Sess. (Nev. 2019) (automatically restoring voting'rights of all felons upon release from prison); SB. 204, 2001 Reg. Sess. (NM. 2001) (repealing lifetime disenfranchisement). Similarly, Virginia and Wyoming lifted restrictions on the ability of felons convicted of nonviolent offenses to regain the right to vote upon completion of their sentences. Va. Exec. Order No. 65 (July "0 in 2019, the Florida legislature passed .a bill interpreting the language of the constitutional amendment to require former felons to pay all outstanding ?nes, fees, and restitution imposed as part of their sentence in order to regain their voting rights. SB. 7066, 2019 Leg, Reg. S-ess. (Fla. 2019).. A group of former felons who are unable to pay their legal financial obligations filed a lawsuit challenging the constitutionality of this requirement. At the conclusion of a bench trial earlier this month, the district court ruled that this requirement ?is unconstitutional as applied to individuals who are otherwise eligible to vote but are genuinely unable to pay? and permanently enjoined its enforcement. Jones v. DeSantis, No. 2020 WL 261.8062, at *44 (ND. Fla. May 24, 2020). ?1 Available at 15, 2013)12 (directing corrections of?cials to share criminal history information of eligible nonviolent felons to facilitate automatic restoration of rights); EB. 75, 64th Leg, 2017 Gen. Sess. (Wyo. 2017) (automatically restoring voting rights to all nonviolent felons). Other States have restored the right to vote to individuals living in their communities who are still under the supervision of the criminal justice system. California, Colorado, Connecticut, Louisiana, Maryland, New Jersey, New York, and Rhode Island have variOusly restored the right to vote to citizens completing the terms of either their felony probation, parole, or post?release community supervision. See AB. 2466, 2015?2016 Reg. Sess. (Cal. 2016) (providing that Citizens subject to post-release community supervision and those serving felony sentences in county jail are eligible to vote);13 HB. 19-1266, 71st Gen. Assemb, 2019 Reg. Sess. (Colo. 2019) (restoring voting rights to parolees); HE. 5042, 2001 Gen. Assemb, an. 8658. (Conn. 2001) (restoring voting rights to probationers); HB. 265, 201-8 Reg". Sess. (La. 2018) (restoring voting rights to felons, including those on parole or probation, who have not been incareerated in the past ?ve years); HB. ?2 Available at (open PDF). "3 The California Legislature is currently considering placing a proposed constitutional amendment on the November 2020 ballot that would allow parolee's to vote. A.C.A.. 6, 2019?2020 Reg. Sess. (Cal. 2019). 980, 2015 Reg. Sees. (Md. 2015) (permitting felons discharged from incarceration to register to vote); AB. 5823, 2018?2019 Reg. Sess. (NJ. 2019) (re-enfranehising felons on parole or probation); NY. Exec. Order No, 181 (Apr. 1.8, 2018)14 (restoring voting rights to parolees upon release from HB. 793 8, 20.06 Gen. Assemb., Jan. Sess. (R1. 2006) (restoring voting rights upon discharge from incarceration). Similarly, Delaware and Washington State eliminated the requirement of paying all fines, fees, costs, and restitution before regaining the right to vote. SB. 242, 148th Gen. Assemb. (Del. 2016);, HB. 1517, 61st Leg, 2009 Reg. Sess. (Wash. 2009). Finally, States including California, New Jersey, New Mexico, New York, and Washington have enacted laws requiring state agencies to notify felons of the proeeSS for seeking restoration of voting rights or provide information about their voting rights prior to- or upon release from incarceration. See AB. 1344, 2017-2018 Reg. Sess. (Cal. 2017) (requiring corrections of?cials to provide information about voting rights restoration online and in person to felons leaving prison); SB. 2282, 2010-2011 Reg. Sess. (NJ. 2012) (requiring the State Commissioner of Corrections to provide general written information of a returning citizen?s right to vote prior to ?4 Available at ?5 New York already permits feIOns on probation to vote. NY. Election Law 5?106. release), HB. 64, 2005 Reg. Sess. (NM. 2005) (requiring the corrections department to notify a former felon of his ability to register to vote upon completion of his sentence); AB. 9706, 2010 Assemb, Reg. Sess. (NY. 2010) (requiring the corrections department to notify a former felon of his right to vote and provide a voter registration application upon release); SB. 5207, 66th Leg, 2019 Reg. Sess. (Wash. 2019) (similar). These measures help to reduce confusion among returning citizens by advising them of the process for restoration of rights and providing the information needed to register to vote when eligible. They also encourage individuals returning from incarceration and reintegrating into their communities to exercise. the franchise, when possible. B. Expanding the franchise can promote civic participation and improve public safety. States? efforts to restore voting rights to returning citizens embrace the idea that ?restoring voting rights to eX?felons may facilitate reintegration efforts and perhaps even improve public safety.? Christina Beeler, Article, Felony Disenfranchisement Laws: Paying and Re?Paying a Debt to Society, 21 U. Pa. J. Const. L. 1071, 1088 (2019) (internal quotation marks omitted); see, eg, NY. Exec. Order No. 181, at 1 (?reasoning that ?research indicates a strong positive correlation between the civic engagement associated with voting and reduced rates of recidivism, which improves public safety? for all New Yorkers?); Press Release, Cal. Secretary of State, Secretary of State Alex Padilla Launches ?Restore Your Vote} Tool to Help Californians with Criminal Convictions Know heir Voting Rights (Oct. 17, 2018')16 (?Civic engagement can be a critical piece in reintegrating formerly incarcerated Californians into their communities and reducing recidivism.? (internal quotation. marks omitted)). In expanding the franchise, States have cast doubt on the ef?cacy of post-release disenfranchisement. See, NJ. AB. 5823 1(t) (finding that is no evidence that denying the right to vote to people with criminal convictions serves any legitimate public safety purpose?). Rather, the experience of many States con?rms the ?civic reintegration should be included in reuentry models because it can help transform one?s identity from deviant to law?abiding citizen.? Erika Wood, Brennan Ctr. for us-tice, Restoring the Right to Vote .8 (May 2009).17 Empirical evidence ?demonstrates that former criminal offenders who enter stable work and family relationships are most likely to desist from; crime.? Christopher Uggen Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence ?om a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193, 196 (2004) (citations omitted). These studies observe that ?attachment to social institutions such as families and labor markets increase the reciprocal obligations between people and provide individuals with a stake in conforming behavior.? Id. In much the same way, allowing felons to Vote can foster prosocial behavior: ?[W]hen_ citizens ?6 Available at ?7 Available at (download report). 9 convicted of crime vote, they are doing What all voters do: actively endorsing the political system.? Alec C. Ewald, An ?Agenda for Demolition?: The Fallacy and the Danger of the ?Subversive Voting? Argument fer elony DtSenfranehisement, 36 Colum. Hum. Rts. L. Rev. 109, 130 (2004) (emphasis omitted). Participating in the political process ?produces citizens with a generalized sense of ef?'caCy, who believe that they have a stake in the political system,? which? ?in turn, fosters continued political participation.? Voting and Subsequent Crime and Arse-Sn suprm at 198-. In this way, civic restoration ?communicates to the ex~felon that she orhe is still part of the community and has a stake in the democratic process.? VCU News, Restoring Voting Rights of Felons Is Good Public Policy, VCU Expert Says (Apr. 26, Several studies of former felons? voting behavior support this conclusion. For example, a study by the Florida Parole Commission found that exufelons whose voting rights were automatically restored upon release from prison were less likely to commit new crimes. James Call, Study Shows Eye?Cons Bene?t from Rights Restoration, wfsu Pub. Media.19 In April 2007, then-GoVernor Crist had revised Florida?s rules of executive clemency to automatically restore the rights of most ?8 Available at 19 Available at (last visited May 20, 2020). 10 nonviolent felons upon completion of their sentences. Abby Goodnough, In a Break from the Past, Florida Will Let Felons Vote, N.Y. Times (Apr. 6, 2007)..20 In March .2011, however, then?Governor Scott issued new clemency rules requiring all felons to wait ?ve years after completing their sentences to apply for restoration of rights. Erika Wood, Turning Back the Clock in Florida, Brennan Ctr. for Justice (Mar. 11, 2011).? A study found that between April 2007 and March 2011, the peri'od'when Governor Crist?s clemency rules automatically restored civil rights, about 11% of returning citizens reuoffended, as compared with 33% of individuals released between 2001 and 2008. Call. supra. In other words, the rate of recidivism among the group whose voting rights were restored fell by about two-thirds. Id.? Another study found ?consistent differences between voters and non~voters in rates of subsequent arrest, incarceration, and self?reported criminal behavior.? Voting and Subsequent Crime andArresz?, supra, at 213. This survey of 1000 former high school students analyzed ?the? effects of voting participation in the 1996 election upon 'selfnreported crime and arrest in the years from 1997 to 2000.? Id. at 200. The study found that former arrestees, about 27% of the non?voters were rte?arrested, relative to 12% of the voters.? Id. at 205. These studies suggest that ?[w]hile the single behavioral act of casting a ballot is unlikely to be the sole factor 20 Available. at 2? Available at 11 that turns felons? lives around, the act of voting manifests the desire to participate as a law-abiding stakeholder in a. larger society.? Id. at 213. Law enforcement authorities have endorsed this View in support of several States? Voting restoration laws. For example, a police of?cer testi?ed before the Maryland Legislature that re?enfranchisement ?promotes the successful reintegration of formerly incarcerated people, preventing further crime and making our neighborhoods safer.? Restoring the Right to Vote, supra, at ll (quoting Voter Registration Protection Act: Hearing on SB. 488 Before S. Comm.- oh Educ, Health ch Envtl. A?airs, 2007 Leg, 423'rd Sess. (Md. 2007) (written testimony of Ron Stalling, Nat?l Black Police Ass?nD. Similarly, a former city police chief in Rhode Island asserted that post?release disenfranchisement ?disrupts the re-entry process and weakens the long-term prospects for sustainable rehabilitation,? whereas reconnecting with family, getting a job, and ?nding a decent place to live-Wis part of a responsible return to life in the community.? Dean Esserman H. Philip West, Without a Vote, Citizen's Have No Voice, The Providence Journal (Sept. 25, 2006).22 Moreover, in enacting laws to expand the franchise, state legislators have endorsed the finding that restoring voting rights encourages former felon-s to rejoin 22 Available at l2 society as. productive members of their communities. See, eg, Colo. HB. 19-1266 1(c) (declaring that restoring. voting rights to parolees ?will help to deveiOp and foster in these individuals the values of citizenship that will result in signi?cant dividends to them and society as they resume their places in their communities?). States have also recognized that restoring the franchise bene?ts their communities more broadly by promoting civic participation. See, Gigi, R1. HB. 7938 1(i) (?Restoring the right to vote strengthens our democracy by increasing voter participation and helps people who have completed their incarceration to reintegrate into society?). Further, States note that by welcoming former felons back as full-?edged members of their communities, re?enfranchisement can improve overall public safety. See, Wash. Comm. on State Gov?t Tribal Affairs, Report on. HR. 1517, 2009 Reg. Sess, at 3 (2009) (crediting testimony that ?restoration of the right to vote encourages offenders to reconnect with their community and become good citizens, thus reducing the risk of recidivism?). In addition, States have recognized the importance of restoring voting rights- to returning citizens given the disparate impact of felon disenfranchisement laws on. minority communities. Unfortunately, the country?s mass incarceration problem ?has disproportionately impacted people of color,? and ?the disparities in incarceration rates by race ultimately become disparities. in voting rights.? Beeler, supra, at 1085. Consequently. as of 2016;, over 7.4% of the African American voting l3 age population in the United States could not vote, as compared with only 1.8% of the non?African American population. 6 Million Lost Voters, supra, at 3. In addition to the disparate impact of felon disenfranchisement laws? there is evidence that misinformation about these laws is more likely to deter African Americans from voting than their White counterparts. Speci?cally, a 2009 study found that ?eligible and registered? African American voters ?were nearly '12 percent less likely to cast ballots if they lived in states with lifetime di-senfranehisement policies,? as compared with white voters who were only 1 percent less likely to vote. Erin Kelley, Brennan Ctr. for Justice, Racism oi: Felony Disen?anehisement.' An Intern/trialled History 3 (May .2017).23 States implementing measures to expand the voting rights of returning citizens have speci?cally called out these harmful consequences of disenfranchisernent on minority communities. See, NJ. AB. 5823 1(e) (?nding that ?[n]early half of those denied the right to vote because of a criminal conviction are Black, due to racial disparities in the criminal justice system?); NY. Exec. Order No. 181, at (observing that ?the disenfranchisement of? individuals on parole has a significant. disproportionate racial impact thereby reducing the representation of minority populations?); R1. HB. 7938 1(4) (?One in ?ve (5) black men and one in eleven 23 Available at (download report). 14 (ll) Hispanic men are barred from voting in Rhode Island. By denying so many the right to vote, criminal disenfranchisement laws dilute the political power of entire minority These important considerations underscore the substantial bene?ts of restoring the franchise to citizens upon return from incarceration. If. 13?1 Does Not Further Any Compelling Governmental interests. There is little evidence that extended disenfranchisement promotes any of the traditional goals of the criminal justice system or that it facilitates compliance with outstanding legal ?nancial obligations. Moreover, the experience of States across the country illustrates that restoring the franchise upon release from prison results in fewer administrative problems and less confusion among both election of?cials and former felons about voter eligibility. These observations call into question the interest of States like North Carolina in continuing to disenfranchise felons. once they have returned to their communities. A. Felon disenfranchisement laws like MEGS. 13?1 do not promote any traditional criminal justice goals. States like North Carolina contend that disenfranchisement furthers certain goals of the criminal justice system. Cf Jacobson Decl. Ex. I, at 5 {stating that the government has an interest in ?[e]nsuring that all persons convicted of felony offenses fully satisfy their obligations? in criminal cases). Not so. Courts have recognized four familiar justifications that support criminal penalties; 15 incapacitation, deterrence, retribution, and rehabilitation. Ewing v; California, 538 U.S. 11, 25 (2003) (plurality opinion). There is a growing consensus, however, that once felons have completed their terms of incarceration and returned to their communities, the penalty of continued disenfranchisement does not further any of these traditional goals. In the ordinary course, post-release disenfranchisement will not. ?incapacitate an ex~.offender from committing future criminal offenses, except, perhaps, from committing an extraordinarily narrow subset of voting-related crimes such as vote selling.? Pamela S. Karlan, Canvictions and Doubts: Retribution, Representation, and the Debate Over Felon Disen?anchisement, 56 Stan. L. Rev. 1147, 1167 (2004). Moreover, there is no evidence that ?people with felony convictions are prone. to commit offenses affecting the integrity of elections,? or that ?people on probation and parole have a greater propensity for voter fraud? in the states Where they can vote. Restoring the Right to Vote, supra, at 10. Nor does extended disenfranchisement deter criminal behavior. Several rationales support this ?nding: First, it is highly ?unlikely that an individual who is not deterred. by the prospect of imprisonment or ?nes or other restrictions on his liberty will be dissuaded by the threat of losing his right to vote.? Karlan, supra, at 1166; see. Restoring the Right to Vote, supra, at 11. Second, ?the years of early adulthood in which criminal behavior is most likely are precisely the years in which 16 political participation is at its lowest,? such that many individuals ?are likely to be disenfranchised before they have actually exercised the right to vote.? Karlan, supra, at 1166. It is also problematic to justify extended disenfranchisement based on retributive goals, as retribution typically involves an analysis of ?the gravity of a defendant?s conduct? relative to the ?harshness of the penalty imposed.? Karlan, supra, at 1167; see Atkins v. Virginia, 536 US. 304, 319 (2002). But ?all felonies are not equally serious.? Karlan, supra, at 1167. Yet post-release disenfranchisement laws like North Carolina?s impose a uniformly severe punishment. on all felons, despite ?the assessment of the sentencing judge or jury and the corrections of?cials who, after careful review of each individual?s Circumstances,? have deemed individuals to re?enter society? once they have served their term of incarceration. Restoring the Right to Vote, supra, at 1 l. Post-release disenfranchiseme?nt also ?con?icts with the rehabilitative goals of the criminal justice system by discouraging civic participation.? Beeler, supra, at 1087~88. Voting serves an important function, as it ?invests? convicted felons in. ?our democracy While reminding them of the reciprocal responsibilities that citizens share.? Restoring the Right to Vote, supra, at 11. Denying returning citizens. the ?ability to participate in the political process? only ?further isolates and segregates ere-felons re-en?tering into society.? Guy Padraic Hamilton~Smith 8.: .Matt Vogel, The 1.7 Violence of Voicelesmess: The Impact of Felony Disenfranchisement on Recidivism, 22. Berkeley La Raza L.J. 407, 408 (2012). This extended exclusion, in turn, conveys the message ?that eat-offenders are beyond redemption.? Karlan, supra, at ?1166. Indeed, studies suggest that disenfranchisement may be positively correlated with recidivism. For example, a study of individuals released from prison in fifteen states in 1994 revealed that ?individuals who are released in states that permanently disenfran?chise are roughly nineteen percent more likely to be rearrested than those released in states that rest-oretthe franchise post~release.? Hamilt?onmSmith Vogel, supra, at 426. Further, the same study found that ?[i]ndividuals released in states that permanently disenfranchise are roughly ten percent more likely to reoffend than those released in states that restore the franchise post?release.? 1d. at 427. Finally, there is no evidence that disenfranchisernent facilitates compliance with outstanding legal ?nancial obligations Cf Jacobson Dec]. Ex. 3, at 4-6 (stating that North Carolina has an interest in ?[r]equiring felons to pay full restitution to their victims?). For citizens who are willing but unable? to pay, ?[t]ying repayments to voting rights is unlikely to compel these individuals to pay their LFOs any more quickly than if the franchise was not so conditioned.? Ryan A. Partelow, The wenty?F ?rst Century Poll ax, 47 Hastings Const. L. Q. 425, 463 (2020); see Boarder: Georgia, 461 U.S. 660., 670 (1983) (reasoning that ?[r]evoking the probation of someone who through no fault-of his own is unable to make restitution 18 will not make restitution suddenly forthcoming?); Jones 12. Governor of 1a., 950 F.3d 795, 827 (11th Cir. 2020) (per curiam) (?If a felon is truly unable to pay, it makes no sense to assert that he Will be incentivized to pay his LFOs with money that he does not have?). States can ensure that former felons complete the terms of their sentences through courts? alternative means of {enforcing judgments, including by ?extend[ing] the time for making payments, reduc[_ing] the ?ne, or direct[ing] that the probationer per-form some form of labor or public service in lieu of the Benm?en, 461 U.S. at 672; see Jones, 950 F.3d at 827. There is no sound governmental interest, however, in distinguishing between former felons with the means to pay and those. without in determining who regains the right to vote. B. Systems that restore the franchise upon release from incarceration are less administratively burdensome and less confusing than systems like North Carolina?s. North Carolina claims that N.C.G.S. l3~1 serves the State?s interests in ?[s]implifying the administration? of voting rights restoration and ?[a]voiding confusion among North Carolinians convicted of felonies as to when their rights are restored.? Jacobson Decl. Ex. I, at 4-5; see also id. EX. l, at 4. But studies that post-release disenfranchisement systems are in. fact more dif?cult to administer than systems restoring the right to vote upon release from incarceration. Moreover, systems like North Carolina?s create confusion among elections. of?cials and. voters about voter eligibility, rather than resolving it. 19 1. Systems that restore the franchise when. felons leave prison are easier to administer than post?release disenfranchisement systems. Post-release disenfranchisement systems often require returning citizens to apply for restoration of their civic rights, a process that can be? complicated, time. consuming, and resource intensive. But in states that allow their citizens to vote upon release from prison, ?[t]here is no longer any need to coordinate complicated data matches, administer convoluted eligibility requirements, or sort through thousands of restoration applications.? Restoring the Right to Vote, supra, at 15. Indeed, Rhode Island recognized the bene?t of shifting to a system of automatic restoration upon release when the State amended its felon disenfranchisement law in. 2006. The Rhode Island General Assembly observed that ?[e]xtending disenfranchisement beyond a person?s term of incarceration complicates the process ofrestoring the right to vote.? R1. HB. 7938 The State?s prior system of post-release disenfranchisement had ?require[d] the involvement of many government agencies in the restoration process.? 1d. The legislature explained that bill would simplify restoration by making people eligible to vote once they have served their time in prison, thereby concentrating in the department of corrections the responsibility for initiating restoration of voting rights.? 1d. Further, lawmakers observed, the change to a ?streamlined restoration process? would not 20 only case the administrative burden on state agencies but also ?conserve? government resources and Save[] taxpayer dollars.? Id. Other States? experiences con?rm that restoring the franchise automatically upon release from incarceration is a simple process. For example, in the District of Columbia, based on reports from the local and federal trial courts of ?-?each person incarcerated? for a felony conviction, the Board of Elections cancels the voter registration of incarcerated residents. DC. Code As soon as an. individual leaves prison, all he must do to regain his voting rights is re-register with the Board of Elections. D.C. Board of Elections, FAstbr Incarcerated Voters Returning Citizens,24 Other States, including Colorado, Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, Oregon, and Utah, similarly require only that a person returning from incarceration register to vote in order to regain the franchise. Lawyers? ?Comm. for Civil Rights, 5 0-State Report Oi?l Re?En??anchisement A Guide to. Restoring Your Right to Vote 28, 54, 61, 65, 95, 98', 112, 126, 152., 179 (Sept. 2004).25 In these systems, the straightforward eligibility and registration requirements minimize the burden on corrections of?cers and elections of?cials while facilitating restoration of voting rights. 24 Available at (last visited May 20, 2020). 25 Available at 21 Post?release disenfranchisement systems, in comparison, can involve signi?cant administrative dif?culties. For example, a study of Alabama?s voter restoration process found that of the 4,226 applications for restoration of voting rights received between December 2003 and October 2005, the state Board of Pardons and Paroles processed only 8.5% within the statutory time limits and took more than a year to process 530 of the applications. Alabama Alliance to Restore the Vote 85 Brennan Center for Justice, Voting Rights Denied in Alabama 3 (Jan. 17, 2006).26 These processing delays deprived a total of 599 eligible voters of the right to vote in state and national elections in November 2004. 1d. Further, although state law requires the Board of Pardons and Parole-s to respond to every application, Ala. Code (ft, it closed 39 eligible applications and 59 ineligible applications without ever informing the applicants of their status. Voting Rights Denied in Alabama, supra, at 3. These delays in processing and failures to respond to applications for restoration of voting rights illustrate just a few of the administrative problems of a system that continues to disenfranchise felons pesto-incarceration. Thus, ease of administration is hardly a compelling interest furthered by laws likeN.C.G.S. 13ml. 25 Available at 22 2. Restoring the franchise upon release from prison reduces confusion about how and when former felons become eligible to vote. Post?release disenfranch-i?sement systems like North Carolina?s can create ?needless confusion? among election officials and returning citizens alike about restoration of voting rights. Restoring the Right to Vote, supra, at 13. But streamlining these laws can reduce confusion for all parties involved. Indeed, Washington State understood the bene?t of simplifying their restoration requirements when the State amended ?its felon disenfranchisement law in 2009. In the past, the State had required convicted felons to pay all legal ?nancial obligations before they could regain the right to vote. An Act Relating to Voter Registration Procedures, ch. 246, 15, Wash. Rev. Code (repealed 2009). However, due to ?aws in the state?s system for tracking disenfranchised felons and eon?ision among felons about their loss of rights, over 10.0 felons voted illegally in. the state?s 2004 general election. Scores of Felons Voted Illegally, The Seattle Times (Jan. 23, 2005).27 Then-Washington Seoretary of State Reed suggested that ?the simplest way to ?x confusion over tracking felons would be to automatically restore voting rights when people are released from prison, regardless of whether they?ve paid all their court debts.? Id. Washington State did just that when it amended its disenfranchisement law in 2009. Wash. HB. 1517 (provisionally restoring the 27 Available at 23 franChise when a former felon is no longer under the authority of the Department of Corrections). In support of the bill, the Washington House Report credited testimony that creating a bright-slime for the restoration of voting rights, [it could] simplify a complicated, costly and ineffective system.? Report on HB. 1517, supra, at 3. Similarly, States that restore the franchise upon release from prison tend to have election of?cials who are ?better informed on the law.? Erika Wood Rachel Bloom, Am. Civil Liberties Union Brennan Ctr. for Justice, De Facto Disen?'anchisemem 8' (2008).28 In Oregon, for example, 100% of election of?cials correctly responded that individuals are eligible to vote. as soon as they leave prison. Id. Similarly, in Ohio, nearly 82% of election of?cials correctly stated that citizens can vote while on parole, and nearly 75% correctly stated that citizens can vote While on probation. Id. This data suggests that when the disenfranchisement law is ?straightforward,? there is signi?cantly less room fer confusion in its application. Id. In post-release disenfranchisement systems, by contrast, lack of training about state felony disenfranchisement laws, insuf?cient ?coordination or communication between election of?ces and the criminal justice system,? ?complex laws,? and 23 - Available 24 ?complicated registration procedures? can result in ?persistent confusion among election of?cials? about voter eligibility. Id. at 1. One frequent source of confusion is which stages of the criminal justice system implicate loss of the franchise. See, Brennan Center for Justice Demos: A Network for Ideas Action? Boards of Elections Continue Illegally to Disen?anehise Voters with Felony Convictions 1 (Mar. 2006)? (3 8% of New York?s local election boards surveyed in 2005 incorrectly reported that individuals on probation were not eligible to vote or responded that they did not know whether probationers were eligible to vote); Wood Bloom, supra, at 2?3 (53% of Kentucky county clerks interviewed in a 2005 study incorrectly responded that citizens with misdemeanor convictions are ineligible to vote or stated that they were unsure how to answer this question). Problems can also arise due to confusion over which documents, if any, the State. requires to restore a citizen?s voting rights. See, Boards of Elections Continue Illegally to Disen?anchise Voters with Felony Convictions, supra: at (32% of New York?s local election boards surveyed in 2005 continued to erroneously require convicted felons to produce documentation before they could register to vote); Voting Rights Denied in Alabama, supra, at 3-4 (AlthOUgh residents convicted of felonies not involving ?moral turpitude? never lost the right to vote, Alabama elections of?cials 29 Available at 25 refused to register ?new Voters with such convictions without proof of restoration of rights, which the Board of Pardons and Paroles declined to issue). As these examples illustrate, confusion about returning citizens? voting rights, at minimum, chills many eligible, would?be voters from casting ballots. But misinformation can also have broader effects on former felons and their communities because one citizen who is told he cannot vote ?may pass along that same inaccurate information to his peers, family members and neighbors, creating a lasting ripple of de facto disenfranchisement across his community.? Wood Bloom, Supra, at 1. At worst, confusion over felon disenfranchisement laws can ire?imprison individuals who did not know that they were ineligible to vote. See, e. g, Rebecca Beitsch, Felony Voting Laws Are Confusing; Activists Would Ditch Them Altogether, Pew (Apr. 5, 2018) (Texas woman" sentenced to five years in prison fer voting while on felony Woman Convicted of Voter Fraud No Longer Wants to Cast Ballot, TwinCitiescorn (May 21., 2007) (Wisconsin woman sentenced to two years in prison for Voting While on felony probation)? Thus, the multiple sources of potential confusion in systems like North Carolina?s counsel in favor of a less restrictive approach. Certainly, 13-1 does not further any interest in preventing confusion among former felons or election. officials. 3" Available at 3? Available at 26 CONCLUSION The Court should grant plaintiffs? motion for summary judgment. Respectfully submitted, this the 27th day of May, 2020. GM CAROLINE P. MACKIE NC. State Bar No. 41512 Poyner Spruill LLP PO. Box 1801 Raleigh, NC 27602 (919) 783?1108 (919) 783-1075 (fax) cmackie@poynerspruill.com KARL A. RACINE Attorney General for the District of Columbia LOREN L. ALIKHAN Solicitor General Caroline S. Van Zile CAROLINE S. VAN ZILE Principal Deputy Solicitor General CARL J. SCHIFFERLE Deputy Solicitor General JACQUELINE R. BECHARA Assistant Attorney General Of?ce of the Solicitor General Of?ce of the Attorney General 441 4th Street, NW, Suite 630 South Washington, DC. 20001 (202) 724-6609 (202) 741-0649 (fax) caroline.vanzile@dc.gov 27 XAVIER BECERRA Attorney General State of California 1300 I Street Sacramento, CA 95814 WURA HEALEY Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, 02108 CLARE E. CONNORS Attorney General State of Hawaii 425 Queen Street Honolulu, HI 96813 AARON D. FORD Attorney General State of Nevada 100 North Carson Street Carson City, NV 89701 CERTIFICATE OF SERVECE I certify that I caused the foregoing motion and the attached brief to be served "on all counsel by email addressed to: FORWARD JUSTECE Daryl Atkinson Whitley Carpenter 400 Main St, Suite 203 Durham, NC 27701 Counsel for Plainti?fs ARNOLD PORTER KAYE R. Stanton Jones Elisabeth S. Theodore Daniel F. Jacobson Graham White 601 Massachusetts Ave. NW Washington, DC 20001-3743 (202) 942-5000 stanton.iones@arneldporter.eem PROTECT DEMOCRACY PRGJECT Farbod K. araji 77 Pearl Street Middletown, CT 06459 (202) 5794582 Aditi Juneja 115 Broadway, 5th Floor, NY 10006 (202) 308-0163 Aditi.junej a@protectdemocraey.org Counsel for Plaintiffs I Brian D. Rabinovitz Paul M. Cox 114 W. Edenton St. Olga Vysotskaya Raleigh, NC 27603 1 14 W. Edenton St. BRabinovitz@ncdoj.g0V Raleigh, NC 27603 Counsel for Legislative Defendants pcox@ncd0j . gov OVysotskaya@ncdoj . gov . Counsel for State Board Defendants This the {may of May, 2020. CAROLINE P. MACKIE