IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
19 CVS 15941

STATE OF NORTH CAROLINA( WAKE COUNTY

2t2

JUL

COMMUNITY SUCCESS
INITIATIVE, et al.,
Plaintiffs,

MOTION FOR LEAVE
TO FILE AMICUS BRIEF
BY INSTITUTE FOR
INNOVATION IN
PROSECUTION AT
JOHN JAY COLLEGE

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

The Institute for Innovation in Prosecution at John Jay College
respectfully moves under Civil Rule 7(b) for leave to file the attached
amicus brief in support of the plaintiffs in this lawsuit on their motion
for summary judgment or, in the alternative, for preliminary injunction.
The Institute is a research center at John Jay College, one of the
nation's premier criminal-justice institutions. The Institute brings
together prosecutors, policy experts, and communities to promote data
strategies, cutting-edge scholarship, and innovative thinking.
The Institute submits this amicus brief to aid the Court's
assessment of the constitutionality of the disenfranchisement statutes
1

 challenged in this case. Specifically, the brief presents critical evidence
on the relationship between disenfranchisement and public safety.
The Institute's counsel has conferred with the parties' counsel on
their position on this motion. The plaintiffs and the State Board
Defendants consent to the relief sought. The Legislative Defendants
take no position and leave the matter to the discretion of the Court.
For these reasons, the Institute respectfully asks that the Court
allow this motion. A proposed order accompanies the motion.
This the 24th day of July, 2020.
ROBINSON BRADSHAW
& HINSON P.A..

Matthew W. Sawchak
N.C.. State Bar No. 17059
Stephen D. Feldman
N.C.. State Bar No. 34940
Mark A. Hiller
N.C.. State Bar No. 50004
1450 Raleigh Road, Suite 100
Chapel Hill, NC 27518
Telephone: (919) 328-8800
Facsimile: (919) 328-8790
msawchak@robinsonbradshaw.com
sfeldman@robinsonbradshaw.com
mhiller@robinsonbradshaw.com

2

 CERTIFICATE OF SERVICE
I certify that today, I caused the attached MOTION FOR LEAVE
TO FILE AMICUS BRIEF BY INSTITUTE FOR INNOVATION IN
PROSECUTION AT JOHN JAY COLLEGE to be served on all counsel
by email and U.S. mail, addressed to:
Daryl Atkinson
Whitley Carpenter
Forward Justice
400 W. Main Street, Suite 203
Durham, NC 27701
daryl@forwardjustice.org
wcarpenter@forwardjustice.org
Counsel for Plaintiffs
R. Stanton Jones
Elisabeth S. Theodore
Daniel F. Jacobson
Graham White
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Avenue NW
Washington, DC 20001
stanton.jones@arnoldporter.com
elisabeth.theodore@arnoldporter.com
daniel.jacobson@arnoldporter.com
graham.white@arnoldporter.com
Counsel for Plaintiffs
Farbod K. Faraji
Protect Democracy
2120 University Avenue
Berkley, CA 94704
farbod.faraji@protectdemocracy.org
Counsel for Plaintiffs

 Brian D. Rabinovitz
N.C.. Department of Justice
114 W. Edenton Street
Raleigh, NC 27603
rrabinovitz@ncdoj.gov
Counsel for Legislative Defendants
Paul M. Cox
Olga Vysotskaya
N.C. Department of Justice
114 W. Edenton Street
Raleigh, NC 27603
pcox@ncdoj.gov
ovysotskaya@ncdoj.gov
Counsel for State Board of Elections
This the 24th day of July, 2020.
ROBINSON BRADSHAW
& HINSON, P.A..

I)
Stephen

Feldman

 ATTACHMENT:
PROPOSED AMICUS BRIEF

STATE OF NORTH CAROLINA
WAKE COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
19 CVS 15941

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.
)

AMICUS BRIEF OF
INSTITUTE FOR
INNOVATION IN
PROSECUTION AT
JOHN JAY COLLEGE

INTRODUCTION
North Carolina’s disenfranchisement statutes—the statutes
challenged in this case—have an unstated but important premise:
that withholding the right to vote from persons with criminal records
facilitates their rehabilitation.
This premise is false. As research shows, disenfranchisement
impedes a person’s rehabilitation and engagement with her community.
Studies also show that disenfranchisement creates conditions for
recidivism and for less-safe communities.

1

 The Institute for Innovation in Prosecution is a research center at
John Jay College, one of the nation’s premier criminal-justice
institutions. The Institute brings together prosecutors, policy experts,
and communities to promote data-driven strategies, cutting-edge
scholarship, and innovative thinking. The Institute submits this
amicus brief to present critical evidence on the relationship between
disenfranchisement and public safety.
The evidence discussed in this brief shows that
disenfranchisement does not advance law-enforcement goals.
Disenfranchisement destabilizes communities, hinders rehabilitation,
and endangers the public.
ARGUMENT
A person’s re-entry into society after incarceration requires an
effective rehabilitation process. Successful re-entry should also enhance
a community’s safety. The General Assembly has singled out
rehabilitation and public safety as priorities of the State’s sentencing
regime. See N.C. Gen. Stat. § 15A-1340.12 (2019).
The disenfranchisement statutes at issue here undermine these
objectives. The Institute urges the Court, when it assesses the statutes’
2

 constitutionality, to weigh the real-world harm that disenfranchisement
poses for communities and public safety.
I.

Disenfranchisement disrupts a person’s post-release
integration into the community.
To re-enter society from incarceration successfully, a person must

establish meaningful ties with her community. Bryan Lee Miller &
Joseph F. Spillane, Civil Death: An Examination of Ex-Felon
Disenfranchisement and Reintegration, 14 Punishment & Soc’y 402, 408
(2012).
Studies confirm this point. They show that when a person has
meaningful ties with her community, she views herself as having a
stake in her community. Christopher Uggen & Jeff Manza, Voting and
Subsequent Crime and Arrest: Evidence from a Community Sample, 36
Colum. Hum. Rts. L. Rev. 193, 196 (2004). When a person embraces her
community obligations, she will be more likely to conform her behavior
to the community’s standards. Id. at 196-97.
Such a person is also more likely to approve of and have faith in
the community’s institutions, norms, and values. Victoria Shineman,
Restoring Rights, Restoring Trust: Evidence that Reversing Felon

3

 Disenfranchisement Penalties Increases Both Trust and Cooperation
with Government, U. Pittsburgh 4–5 (Oct. 25, 2018),
https://ssrn.com/abstract=3272694. The result is reciprocal: As the
community shapes the person, so the person is more likely to contribute
to her community. Uggen & Manza, supra, at 197.
No person can feel like a member of a community, however, when
she cannot participate in electing the community’s leaders. See Note,
Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of
Voicelessness: The Impact of Felony Disenfranchisement on Recidivism,
22 Berkeley La Raza L.J. 407, 415 (2012). Instead, a person who cannot
vote will always feel like a political outsider, because she is. Erika
Wood, Brennan Ctr. for Just., Restoring the Right to Vote 9 (2009).
For these reasons, disenfranchisement undermines re-integration.
Hamilton-Smith & Vogel, supra, at 414. Persons disenfranchised after
incarceration report feeling “different from everyone else,” “not
accepted,” “like [I] don’t matter,” “alienated,” and “like I’m still a
criminal.” Bryan Lee Miller & Lauren E. Agnich, Unpaid Debt to
Society: Exploring How Ex-Felons View Restrictions on Voting Rights
After the Completion of Their Sentence, 19 Contemp. Just. Rev. 69, 80,
4

 83 (2016). Those emotions fuel anger and defiance—the opposite of the
pro-social behaviors that are critical to rehabilitation. See id. at 73.
Disenfranchisement colors not only the perceptions of the person
who cannot vote, but also the perceptions of her fellow community
members. Being disenfranchised imposes a stigma: When the law
treats someone as unworthy of casting a vote—unworthy of having a
say in how society is governed—her community will treat her as
something less than a true member. Regina Austin, “The Shame of it
All”: Stigma and the Political Disenfranchisement of Formerly Convicted
and Incarcerated Persons, 36 Colum. Hum. Rts. L. Rev. 173, 174, 177
(2004). In the eyes of her community, she is morally deficient,
unredeemable, or worse. Id. at 177. Those perceptions foment distrust
and, in the end, weaken the very ties between the person and the
community that effective re-entry requires. Id. at 174, 176.
Re-enfranchisement does the opposite. It strengthens the ties
between a person and her community. The right to vote invites
participation in civic life and reinforces the obligation to follow
community norms. Wood, supra, at 9, 11. If a person can exercise the
same right to vote that every other community member enjoys, she
5

 perceives herself as a member of that community, not as an outsider.
See Uggen & Manza, supra, at 195.
In sum, disenfranchisement statutes undermine rehabilitation.
Disenfranchisement stifles a person’s community participation, turning
the community and the person against one another.
II.

Disenfranchisement harms public safety.
The disenfranchisement statutes inflict further harm on society.

Specifically, disenfranchisement increases the chance that a person—
alienated from and stigmatized by his community—will commit another
crime. See Hamilton-Smith & Vogel, supra, at 428; see also Cyrus R.
Vance Jr. et al., Prosecutors, Reentry, and Public Safety 2 (2019).
Disenfranchisement creates “a permanent criminal underclass of
outcasts.” Hamilton-Smith & Vogel, supra, at 428. This outcasting
occurs when society and disenfranchised persons come to believe that
rehabilitation is impossible. Id. at 413. The members of the resulting
underclass express their hopelessness through anti-social behavior. See
Miller & Agnich, supra, at 72. Indeed, research shows that a person
whom society labels as deviant and an outsider will live out those labels
by violating the law. Id. at 72-73.
6

 One study, in particular, found a positive correlation between
disenfranchisement and increased recidivism rates. Hamilton-Smith &
Vogel, supra, at 426. The study compared the recidivism rates of exoffenders in states that restore voting rights post-release with
recidivism rates of ex-offenders in states that permanently
disenfranchise. Id. at 426-27. After controlling for factors such as
demographics and criminal history, the study concluded that exoffenders released in states that permanently disenfranchise are at
least ten percent more likely to commit another crime. Id. at 427.
This research is consistent with other studies about the
relationship between voting patterns and criminal activity. See
Hamilton-Smith & Vogel, supra, at 416. One study found that in the
time after an election, persons who did not vote in that election had
higher rates of arrest and incarceration than persons who did vote had.
Uggen & Manza, supra, at 208. Sixteen percent of non-voters were
arrested within three years of the election, whereas only about five
percent of voters were. Id. at 204–05. Similarly, twelve percent of nonvoters were incarcerated within three years, but only five percent of
voters were incarcerated in the same period. Id. at 205.
7

 The same study also found a negative relationship between voting
patterns and desistance, the process by which ex-offenders become lawabiding. The study found that forty-two percent of non-voters reported
committing acts of violence or threatening violent acts after the
election, whereas only twenty-seven percent of voters reported the same
in that period. Id. at 207. Eighteen percent of non-voters reported
committing property crimes after the election, but only eleven percent of
voters reported those crimes. Id. The study’s authors interpreted this
data to conclude that disenfranchisement has a positive correlation with
increased rates of recidivism. Id. at 213-15.
Interviews with disenfranchised persons support this conclusion.
In one study, thirty-nine percent of respondents reported a connection
between their inability to vote and their inability to stay out of trouble.
Miller & Spillane, supra, at 422. Specifically, they reported that,
because they had no voice in electing their leaders, they felt at direct
risk of returning to criminal activity. Id. at 415. As one
disenfranchised person explained it, “people who don’t feel like they’re a
part of the community do other things: they either go back to selling
drugs, smoking drugs, or doing crime.” Id.
8

 Some might argue that disenfranchisement achieves
incapacitation or deterrence, but the facts show otherwise. Wood,
supra, at 10-11. The threat of disenfranchisement has a low deterrence
value because that consequence of crime is not widely known to the
public. Miller & Agnich, supra, at 72. As proof, consider the case of
Lanisha Bratcher, a 32-year-old Hoke County resident who voted in
2016 while on probation. Even though Ms. Bratcher apparently had no
idea that she could not vote, she has been charged with a class I felony
and faces potential prison time. Sam Levin, A Black Woman Faces
Prison for a Voting Mistake; Prosecutors Just Doubled the Charges,
Guardian (July 21, 2020), https://www.theguardian.com/usnews/2020/jul/21/voting-arrest-racist-law-north-carolina-lanishabrachter.
Ms. Bratcher’s case shows the senseless nature of the
disenfranchisement statutes. When those statutes are violated, they
amount to a surprise attack on a person who seeks civic involvement—
the very persons who are trying to re-enter society successfully.
Perversely, the statutes thus discourage civic involvement and promote
recidivism. The result is the opposite of the foremost purpose of our
9

 criminal legal system: protecting public safety. See N.C. Gen. Stat.
§ 15A-1340.12.
III. Disenfranchisement breeds hardships for families and
communities—hardships that further undermine public
safety.
Finally, disenfranchisement affects the families and communities
of the disenfranchised in a troubling way. See Wood, supra, at 12.
It creates a ripple effect in the form of stigma. Families of
disenfranchised persons who have completed terms of incarceration
experience as much, if not more, stigmatization as the disenfranchised
persons themselves experience. Austin, supra, at 180. Communities
with many disenfranchised residents experience the same stigma. Id.
at 183. When families and communities feel unfit to participate in the
political process, they experience weak social bonds and an increased
likelihood of anti-social behavior. See Miller & Agnich, supra, at 73.
That anti-social behavior includes low levels of civic participation.
Disenfranchising the head of a household discourages the entire family
from civic participation. Wood, supra, at 12. That effect is especially
pronounced for children because a child’s decision to vote depends on
what she has seen her parents do. Id. A parent’s disenfranchisement
10

 thus yields irrational consequences: families with an immense stake in
government policies—including policies on housing, child welfare, and
social benefits—do not vote for the officials who shape those policies.
Austin, supra, at 18485.
This alienation of whole families can have profound consequences.
As shown above, a person who is not engaged in civic participation has
a greater chance of deviating from community norms and violating the
law. See supra pp. 3-9. These consequences, moreover, can spread from
families through entire communities: when disenfranchisement is more
restrictive, a community’s voter turnout is lower. See Aman McLeod et
al., The Locked Ballot Box: The Impact of State Criminal
Disenfranchisement Laws on African American Voting Behavior and
Implications of Reform, 11 Va. J. Soc. Pol’y & L. 66, 80-81 (2003).
Disenfranchisement, then, affects more than the person no longer
incarcerated. It leads to limited civic participation in families and
communities. And that limited participation is correlated with an
increased likelihood of criminal activity.

11

 CONCLUSION
The Institute asks the Court to grant the Plaintiffs' motion for
summary judgment or, in the alternative, for preliminary injunction.
This the 24th day of July, 2020.

ROBINSON BRADSHAW
& HINSON, P.A..
. fr)
Matthew W. Sawchak
N.C.. State Bar No. 17059
Stephen D. Feldman
N.C.. State Bar No. 34940
Mark A. Hiller
N.C.. State Bar No. 50004
1450 Raleigh Road, Suite 100
Chapel Hill, NC 27518
Telephone: (919) 328-8800
Facsimile: (919) 328-8790
msawchak@robinsonbradshaw.com
sfeldman@robinsonbradshaw.corn
mhiller@robinsonbradshaw.com

12

 CERTIFICATE OF SERVICE
I certify that today, I caused the attached AMICUS BRIEF OF
INSTITUTE FOR INNOVATION IN PROSECUTION AT JOHN JAY
COLLEGE to be served on all counsel by email and U.S. mail,
addressed to:
Daryl Atkinson
Whitley Carpenter
Forward Justice
400 W. Main Street, Suite 203
Durham, NC 27701
daryl@forwardjustice.org
wcarpenter@forwardjustice.org
Counsel for Plaintiffs
R. Stanton Jones
Elisabeth S. Theodore
Daniel F. Jacobson
Graham White
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Avenue NW
Washington, DC 20001
stanton.jones@arnoldporter.com
elisabeth.theodore@arnoldporter.com
daniel.jacobson@arnoldporter.com
graham.white@arnoldporter.com
Counsel for Plaintiffs
Farbod K. Faraji
Protect Democracy
2120 University Avenue
Berkley, CA 94704
farbod.faraji@protectdemocracy.org
Counsel for Plaintiffs

 Brian D. Rabinovitz
N.C.. Department of Justice
114 W. Edenton Street
Raleigh, NC 27603
rrabinovitz@ncdoj.gov
Counsel for Legislative Defendants
Paul M. Cox
Olga Vysotskaya
N.C.. Department of Justice
114 W. Edenton Street
Raleigh, NC 27603
pcox@ncdoj.gov
ovysotskaya@ncdoj.gov
Counsel for State Board of Elections
This the 24th day of July, 2020.
ROBINSON BRADSHAW
& HINSON, P.A.

Stephen)). Feldman