STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
No. 19-cv-15941

COMMUNITY SUCCESS
INITIATIVE, et al.,
Plaintiffs,
v.
TIMOTHY K. MOORE, in his
official capacity as Speaker of the
North Carolina House of
Representatives, et al.,
Defendants.

BRIEF OF CATO INSTITUTE,
R STREET INSTITUTE, AND DUE
PROCESS INSTITUTE AS AMICI
CURIAE IN SUPPORT OF PLAINTIFFS

 TABLE OF CONTENTS
Page
INTRODUCTION AND INTEREST OF AMICI ...........................................................................1
ARGUMENT ...................................................................................................................................3
I.

Disenfranchisement Has Expanded Far Beyond Its Historical Roots .................................3

II.

Disenfranchisement Prevents Ex-Offenders From Fully Rejoining Society, Harms
Families and Communities, and Reduces Public Safety......................................................7

III.

The Detrimental Effects of Disenfranchisement Are Compounded By “UserFunded” Criminal Justice ...................................................................................................11

CONCLUSION ..............................................................................................................................16

i

 TABLE OF AUTHORITIES
Page(s)
CASES
Avery v. Everett,
18 N.E. 148 (N.Y. 1888) ............................................................................................................3
Common Cause v. Lewis¸
No. 18 CVS 014001, 2019 WL 4569584 (N.C. Super. Ct. Sept. 3, 2019) ..............................10
Green v. Board of Elections of New York,
380 F.2d 445 (2d Cir. 1967).......................................................................................................4
Wilson v. Board of Alderman of Charlotte,
74 N.C. 748 (1876) ..................................................................................................................15
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const. amend. XIV, § 2 ...........................................................................................................4
N.C. Const. art. I, § 10 ...................................................................................................................10
N.C. Const. art. I, § 11 ...................................................................................................................14
N.C.G.S. § 13-1................................................................................................................................1
N.C.G.S. § 13-1(1) .........................................................................................................................13
N.C.G.S. § 14-253............................................................................................................................7
N.C.G.S. § 14-309.5(b) ..............................................................................................................6, 10
N.C.G.S. § 14-377............................................................................................................................6
N.C.G.S. § 14-398............................................................................................................................6
N.C.G.S. § 14-401.11.......................................................................................................................6
N.C.G.S. § 15A-1342(a) ............................................................................................................2, 13
N.C.G.S. § 15A-1343(b)(9) .............................................................................................................1
N.C.G.S. § 15A-1343.2..................................................................................................................14
N.C.G.S. § 15A-1344(d) ......................................................................................................2. 13, 14
N.C.G.S. § 15A-1364(a) ................................................................................................................14

ii

 Page(s)
N.C.G.S. § 15A-1368.4(e)(11).........................................................................................................1
N.C.G.S. § 15A-1368.4(e)(12).........................................................................................................1
N.C.G.S. § 15A-1368.4(d) .............................................................................................................13
N.C.G.S. § 15A-1368.4(f)..............................................................................................................13
N.C.G.S. § 15A-1374(b)(11a)..........................................................................................................1
N.C.G.S. § 15A-1374(b)(11b) .........................................................................................................1
N.C.G.S. § 163-55(a)(2) ..............................................................................................................1, 6
OTHER AUTHORITIES
ACLU of North Carolina, At All Costs: The Consequences of Rising Court Fines
and Fees in North Carolina (2019),
https://www.acluofnorthcarolina.org/sites/default/files/field_documents/
aclu_nc_2019_fines_and_fees_report_17_singles_final.pdf .............................................13, 14
John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation,
5 Engage 23 (2004), https://fedsoc.org/commentary/publications/measuringthe-explosive-growth-of-federal-crime-legislation ....................................................................6
4 William Blackstone, Commentaries on the Laws of England ......................................................6
Cato Inst., Go Directly to Jail: The Criminalization of Almost Everything (Gene
Healy ed., 2004) .........................................................................................................................6
Mike Chase, How to Become a Federal Criminal: An Illustrated Handbook for
the Aspiring Offender (2019) .....................................................................................................6
Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55
(2019) .......................................................................................................................................11
Conference of State Court Administrators, Standards Relating to Court Costs:
Fees, Miscellaneous Charges and Surcharges and a National Survey of
Practices 4–5 (June 1986), https://ncsc.contentdm.oclc.org/digital/collection/
financial/id/81/ .........................................................................................................................11
Cong. Globe, 39th Cong., 1st Sess. (May 10, 1866)........................................................................5
Cong. Globe, 39th Cong., 1st Sess. (June 8, 1866) .........................................................................5
Cong. Globe, 40th Cong., 3d Sess. (Feb. 4, 1869) ..........................................................................5

iii

 Page(s)
Mirjan R. Damaska, Adverse Legal Consequences of Conviction and their
Removal: A Comparative Study, 59 J. Crim. L. & Criminology 347 (1968).............................3
Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal
Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045 (2002) .......................4
Executive Office of the President, Economic Perspectives on Incarceration and
the Criminal Justice System (Apr. 2016),
https://obamawhitehouse.archives.gov/sites/default/files/page/files/
20160423_cea_incarceration_criminal_justice.pdf .................................................................12
Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of Voicelessness: The
Impact of Felony Disenfranchisement on Recidivism, 22 Berkeley La Raza
L.J. 407 (2012) ...................................................................................................................4, 7, 8
Amy Heath, Cruel and Unusual Punishment: Denying Ex-Felons the Right to
Vote After Serving Their Sentences, 25 Am. U. J. Gender Soc. Poly’ & L. 327
(2017) .........................................................................................................................................8
Abigail M. Hinchcliff, Note, The “Other” Side of Richardson v. Ramirez: A
Textual Challenge to Felon Disenfranchisement, 121 Yale L.J. 194 (2011) ............................5
Pippa Holloway, Living in Infamy: Felon Disenfranchisement and the History of
American Citizenship (2014) .....................................................................................................6
William Walton Liles, Challenges to Felony Disenfranchisement Laws: Past,
Present, and Future, 58 Ala. L. Rev. 615 (2007) ..................................................................3, 4
Adam Looney & Nicholas Turner, Work and opportunity before and after
incarceration, The Brookings Institution (Mar. 14, 2018),
https://www.brookings.edu/research/work-and-opportunity-before-and-afterincarceration/............................................................................................................................12
James M. Markham, Bench Card: Monetary Obligations in North Carolina
Criminal Cases (2018), https://nccriminallaw.sog.unc.edu/wpcontent/uploads/2018/08/2018-07-31-20180094-Monetary-ObligationsCard%E2%80%93for-proofing.pdf .........................................................................................14
Aman McLeod et al., The Locked Ballot Box: The Impact of State Criminal
Disenfranchisement Laws on African American Voting Behavior and
Implications for Reform, 11 Va. J. Soc. Pol’y & L. 66 (2003) ..................................................9
Bryan L. Miller & Joseph F. Spillane, Civil Death: An Examination of Ex-Felon
Disenfranchisement and Reintegration, 14 Punishment & Society (2012). ..............................8

iv

 Page(s)
N.C. Admin. Office of the Courts, 2018 Report on Criminal Cost Waivers: G.S.
7A-350 (Feb. 1, 2018), https://nccriminallaw.sog.unc.edu/wpcontent/uploads/2018/02/20180201-NCAOC-Report-on-Criminal-CostWaivers.z.pdf ...........................................................................................................................13
N.C. Admin. Office of the Courts, Court Costs and Fees Chart (Dec. 2019),
https://www.nccourts.gov/assets/documents/publications/2019_Criminal_
court_ costs_chart.pdf?uTsvyAraXdZl1sBAK1xTFZfZs8pM3h2 ..........................................12
Eric Plutzer, Becoming a Habitual Voter: Inertia, Resources, and Growth in
Young Adulthood, 96 Am. Pol. Sci. Rev. 41 (2002) ..................................................................9
C.C. Pool, Speech Delivered at Constitutional Convention on the Question of
Suffrage and Eligibility to Office (Feb. 18, 1868), in 34 Wkly. N.C. Standard
No. 8 (Feb. 26, 1868),
https://chroniclingamerica.loc.gov/lccn/sn85042148/1868-02-26/ed-1/seq-4 ........................15
Press Release, Alexi Jones & Wendy Sawyer, Prison Policy Initiative, Arrest,
Release, Repeat: How police and jails are misused to respond to social
problems (Aug. 2019),
https://www.prisonpolicy.org/reports/repeatarrests.html.........................................................12
Richard M. Re & Christopher M. Re, Voting and Vice: Criminal
Disenfranchisement and the Reconstruction Amendments, 121 Yale L.J. 1584
(2012) .........................................................................................................................................5
Judith N. Shklar, American Citizenship: The Quest for Inclusion (1991) .......................................7
Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent
(2011) .........................................................................................................................................6
Jessica Smith, Overcriminalization: A North Carolina Issue (Mar. 2017),
https://www.sog.unc.edu/sites/www.sog.unc.edu/files/course_materials/
Overcriminalization%20a%20NC%20Issue.pdf .......................................................................6
Will Tress, Unintended Collateral Consequences: Defining Felony in the Early
American Republic, 57 Clev. St. L. Rev. 461 (2009) ................................................................4
Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest:
Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193
(2004) .........................................................................................................................................8

v

 Page(s)
Carl Ludwig von Bar et al., A History of Continental Criminal Law, in 6
Continental Legal History Series (Thomas S. Bell et al. trans., Little, Brown
& Co. 1916) ...............................................................................................................................7
Noah Webster, American Dictionary of the English Language (George and
Charles Merriam 1854 ed.) ........................................................................................................5
Erika Wood, Brennan Ctr. for Just., Restoring the Right to Vote (2d ed. 2009),
https://www.brennancenter.org/sites/default/files/legacy/Democracy/
Restoring%20the%20Right%20to%20Vote.pdf. ...................................................................8, 9

vi

 INTRODUCTION AND INTEREST OF AMICI
Amici are non-profit, non-partisan public-policy organizations with an enduring interest in
criminal legal policy and the proper role of the criminal justice system in society.
The Cato Institute is dedicated to advancing the principles of individual liberty, free
markets, and limited government. The Cato Institute’s Project on Criminal Justice was founded
in 1999 and focuses on the proper role of criminal sanctions in a free society, the scope of
substantive criminal liability, the proper and effective role of police in their communities, the
protection of constitutional and statutory safeguards for criminal suspects and defendants, citizen
participation in the criminal justice system, and accountability for law enforcement officers. The
R Street Institute’s mission is to engage in policy research and educational outreach that promotes
free markets and limited yet effective government, including properly calibrated legal and
regulatory frameworks that support economic growth and individual liberty. And the Due Process
Institute works to honor, preserve, and restore procedural fairness in the criminal justice system.
Founded in 2018 and guided by a bipartisan Board of Directors, the Due Process Institute creates
and supports achievable solutions for challenging criminal legal policy concerns through
advocacy, litigation, and education.
Under North Carolina law, a citizen convicted of any felony—whether under North
Carolina law, federal law, or the criminal code of another state—loses the fundamental right to
vote. N.C.G.S. § 163-55(a)(2). That right can be restored only after an ex-offender has been
“unconditionally discharged” from probation, parole, and post-release supervision. N.C.G.S. § 131. Ex-offenders thus remain disenfranchised for lengthy periods of time after their release from
incarceration. Moreover, before regaining voting rights, citizens must pay court costs, fees, and
restitution as “conditions” of their probation, parole, or post-release supervision. Id. §§ 15A1343(b)(9), 15A-1374(b)(11a)-(11b), 15A-1368.4(e)(11)-(12).
1

Failure to pay those often

 substantial costs can result in lengthy extensions of probation or parole—and consequently
continued deprivation of the franchise. See id. §§ 15A-1342(a), 15A-1344(d); Pls.’ Mot. Summ.
J. 14-15.
Amici are concerned that this system of criminal disenfranchisement harms citizens and
taxpayers, and is inconsistent with multiple provisions of the North Carolina Constitution.
Criminal disenfranchisement was historically limited to those crimes considered particularly
serious and violative of the basic social order. Today, by contrast, citizens can be deprived of the
right to vote even for substantively minor and technical violations.

Whether or not

disenfranchisement is justifiable when applied to the extraordinary crimes for which it was
originally imposed, it certainly cannot be justified in its broad modern incarnation.
As disenfranchisement has become increasingly common, its impacts on ex-offenders,
families, communities, and the democratic process have only grown. Disenfranchisement harms
individuals by severing ties to society and increasing the risk of recidivism, harms families by
decreasing their civic participation, harms communities by removing their voice in governance,
and harms democracy itself by raising the possibility that elections (and the criminal laws enacted
by elected representatives) do not truly represent the will of a majority of citizens.
These detrimental effects are further compounded by North Carolina’s growing reliance
on “user-funded” criminal justice. User-funded justice—under which an ever-growing array of
criminal fines and fees are expected to fund not only the justice system, but other aspects of
government as well—traps criminal defendants in a cycle of debt and poverty. And because
N.C.G.S. § 13-1 restores voting rights only after ex-offenders have been unconditionally
discharged from all aspects of their sentence—including the payment of court costs, fines, fees,

2

 and restitution—access to the franchise could, in many cases, turn exclusively on a citizen’s
wealth.
These features of the current disenfranchisement regime harm taxpayers and raise serious
constitutional concerns under multiple provisions of the North Carolina Constitution. Amici thus
respectfully submit this brief in support of Plaintiffs’ motion for summary judgment.
ARGUMENT
I.

DISENFRANCHISEMENT HAS EXPANDED FAR BEYOND ITS HISTORICAL
ROOTS
Fully detailing the harms wrought by felon disenfranchisement requires situating the

practice in historical context. That history reveals two key facts: That disenfranchisement was
imposed as part of an extraordinary punishment intended to sever ties between an offender and the
community; and that this severe punishment was reserved for only the most serious crimes. While
the serious consequences of disenfranchisement remain, the historical limits on that practice do
not.
A. Criminal disenfranchisement has its roots in the ancient common law concepts of “civil
death” and the “attainder” laws of Medieval England. Mirjan R. Damaska, Adverse Legal
Consequences of Conviction and their Removal: A Comparative Study, 59 J. Crim. L. &
Criminology 347, 351 (1968). Under these doctrines, one “incident[] consequent upon an attainder
for treason or felony” was the “extinction of civil rights, more or less complete, which was
denominated civil death. . . . whereby . . . the attainted person ‘is disabled to bring any action, for
he is extra legem positus, and . . . he is in short regarded, as dead in law.’” Avery v. Everett, 18
N.E. 148, 150 (N.Y. 1888) (citations omitted). Under varying versions of the doctrine, felons
“were prohibited from appearing in court, making speeches, attending assemblies, serving in the
army, and voting,” William Walton Liles, Challenges to Felony Disenfranchisement Laws: Past,

3

 Present, and Future, 58 Ala. L. Rev. 615, 616 (2007), and would “lose all the benefits and
protections that society could offer,” Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of
Voicelessness: The Impact of Felony Disenfranchisement on Recidivism, 22 Berkeley La Raza L.J.
407, 409 (2012); see also id. (explaining that under English attainder, those convicted of certain
crimes would suffer forfeiture of property, corruption of the blood, and a loss of civil rights).
Because of their severity, these “early European penalties seem to have been limited to
very serious crimes, and were implemented only upon judicial pronouncement in individual
cases.” Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement
Law in the United States, 2002 Wis. L. Rev. 1045, 1061 (2002). But even if they had been
universally imposed upon conviction for any felony, traditional English common law felonies were
limited to a small, discrete group of crimes believed to be malum in se, such as murder,
manslaughter, arson, robbery, rape, and larceny.

See Will Tress, Unintended Collateral

Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L. Rev. 461, 464
(2009). As a practical matter, then, disenfranchisement would have been suffered only by those
convicted of the most serious crimes. And even there disenfranchisement would necessarily have
been brief, since “with nearly all felonies punishable by death in 18th century England, the voting
rights of convicted felons had not been a very live issue there.” Green v. Bd. of Elections of N.Y.,
380 F.2d 445, 450 (2d Cir. 1967) (Friendly, J.).
B. Although the Founders abolished most aspects of civil death in the United States,
disenfranchisement remained. Liles, 58 Ala. L. Rev. at 617. But here, too, loss of the franchise
would have been suffered only for the most severe crimes. Reflecting that understanding, the
Fourteenth Amendment to the United States Constitution permitted States to restrict their citizens’
right to vote only “for participation in rebellion, or other crime.” U.S. Const. amend. XIV, § 2.

4

 The Framers of that Amendment thus considered only wrongdoers who committed serious crimes,
on par with “participation in rebellion,” to be worthy of disenfranchisement. See Abigail M.
Hinchcliff, Note, The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon
Disenfranchisement, 121 Yale L.J. 194, 229 (2011) (explaining that “rebellion” must be read “as
paradigmatic of the sort of offense that justifies disenfranchisement”). Like rebellion, crimes such
as murder and piracy were viewed as forms of insurrection against the established political order—
and individuals who committed such crimes were believed to have forfeited their place in society. 1
Contemporary dictionaries confirm that understanding. At the time of the Fourteenth
Amendment’s passage, the word “crime” had two distinct meanings: a legal, technical meaning of
“any” offense, and a common and popular meaning of a “grave” offense. See Richard M. Re &
Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction
Amendments, 121 Yale L.J. 1584, 1651-52 (2012). For example, Webster’s Dictionary in 1854
defined “crime” as “[a]n act which violates a law, divine or human; . . . But in a more common
and restricted sense, a crime denotes an offense, or violation of public law, of a deeper and more
atrocious nature; a public wrong.” Noah Webster, American Dictionary of the English Language,
283 (George and Charles Merriam 1854 ed.). Blackstone similarly noted that although the
“general definition” of “crime” “comprehends both crimes and misdemeanors,” “in common

1

Reconstruction-era legislators in the U.S. Congress plainly assumed that disenfranchisement
would apply only to these sorts of severe crimes. One lawmaker for example, described the
individuals facing disenfranchisement as “pirates, counterfeiters, [and] other criminals,” and
argued that the Amendment would allow states to prevent these individuals from “land[ing] their
piratical crafts and com[ing] on shore to assist in the election of a President or members of
Congress.” Cong. Globe, 39th Cong., 1st Sess. 2535 (May 10, 1866) (Statement of Rep. Ephraim
Eckley). Another described these individuals as “[m]urderers, robbers, house-burners, [and]
counterfeiters.” Cong. Globe, 39th Cong., 1st Sess. 3029 (June 8, 1866) (Statement of Sen.
Reverdy Johnson); see also Cong. Globe, 40th Cong., 3d Sess. 862 (Feb. 4, 1869) (statement of
Sen. Willard Warner) (“I am in favor of giving equally to all citizens of the Republic of sound
mind and unstained by great crimes the right to vote and hold office” (emphasis added)).
5

 usage[,] the word, ‘crimes,’ is made to denote such offenses as are of a deeper and more atrocious
dye.” 4 William Blackstone, Commentaries on the Laws of England *5.
C. Today, disenfranchisement extends far beyond the few crimes to which it historically
applied. 2 Indeed, there has been a massive expansion of criminal laws, both state and federal, in
a process frequently labeled the “overcriminalization” of America. 3 By disenfranchising citizens
convicted of any felony, at the same time that the roster of felonies has ballooned, North Carolina’s
current regime vastly broadens the scope of disenfranchisement and ensures that even those
convicted of relatively minor offenses nonetheless suffer this extraordinary consequence due to
their convictions. See N.C.G.S. § 163-55(a)(2).
Many of the felonies triggering disenfranchisement in North Carolina today are trivial,
purely technical, or merely malum prohibitum. For instance, the operation of a bingo game without
a license is a felony. Id. § 14-309.5(b). So too is intentionally losing an athletic contest for
material gain, id. § 14-377; willful destruction of library books worth more than $50, id. § 14-398;
placing “noxious” food “in a position of human accessibility” that might cause a person “mild
physical discomfort without lasting effect,” id. § 14-401.11; and failure by a director of a railroad
company to turn over to her successor company records, id. § 14-253. Indeed, the single largest

2

As Plaintiffs explain, the scope of criminal disenfranchisement was expanded in the wake of
the Civil War, in an attempt to prevent political participation by African Americans. Pls.’ Mot.
for Summary Judgment 4-8. It is against that backdrop that North Carolina came to impose
disenfranchisement for any crime labeled a felony. Id.; see Pippa Holloway, Living in Infamy:
Felon Disenfranchisement and the History of American Citizenship 34 (2014).
3

See, e.g., John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation, 5
Engage 23 (2004), https://fedsoc.org/commentary/publications/measuring-the-explosive-growthof-federal-crime-legislation; Mike Chase, How to Become a Federal Criminal: An Illustrated
Handbook for the Aspiring Offender (2019); Cato Inst., Go Directly to Jail: The Criminalization
of Almost Everything (Gene Healy ed., 2004); Harvey A. Silverglate, Three Felonies a Day: How
the Feds Target the Innocent (2011); Jessica Smith, Overcriminalization: A North Carolina
Issue (Mar. 2017), https://www.sog.unc.edu/sites/www.sog.unc.edu/files/course_materials/
Overcriminalization%20a%20NC%20Issue.pdf
6

 drivers of disenfranchisement in North Carolina are classic examples of merely malum prohibitum
offenses: non-trafficking drug offenses. See Expert Report of Frank R. Baumgartner Filed In
Support of Pls.’ Mot. Summ. J. (Baumgartner Report) 25 at Table 5. None of those crimes can
plausibly be deemed an insurrection against the foundations of society on the scale of rebellion,
piracy, or murder.
II.

DISENFRANCHISEMENT PREVENTS EX-OFFENDERS FROM FULLY
REJOINING SOCIETY, HARMS FAMILIES AND COMMUNITIES, AND
REDUCES PUBLIC SAFETY
As the scope of disenfranchisement has expanded, so too have its harmful effects. In

keeping with its historical origins, disenfranchisement seeks to sever the relationship between exoffenders and society. In the words of one early 20th Century scholar, the punishment “sunders
completely every bond between society and the man who has incurred it; he has ceased to be a
citizen, but cannot be looked upon as an alien, as he is without a country.” Carl Ludwig von Bar
et al., A History of Continental Criminal Law, in 6 Continental Legal History Series 272 (Thomas
S. Bell et al. trans., Little, Brown & Co. 1916) (citation omitted). By applying the modern analogue
to this extraordinary, stigmatizing punishment to every offense labeled a felony, the current
scheme prevents ex-offenders from fully rejoining society, thereby harming individuals,
communities, and the democratic process itself.
A. On the individual level, disenfranchisement implicitly informs the offender that “total
rehabilitation is impossible.” Hamilton-Smith & Vogel, 22 Berkeley La Raza L.J. at 413. The
denial of civil rights deprives an ex-offender of “social dignity” and demonstrates society’s
“indifference to his interests.” Judith N. Shklar, American Citizenship: The Quest for Inclusion
39 (1991). That, in turn, increases the likelihood that he will choose to re-offend: “If one has no
stake in his or her community, then one has little incentive to behave in a pro-social manner.”
Hamilton-Smith & Vogel, 22 Berkeley La Raza L.J. at 413.
7

 Empirical evidence backs up this common-sense proposition. “[R]esearch has shown that
felons in states who are given back their right to vote after being released from prison within a
reasonable time frame are far less likely to become repeat offenders.” Amy Heath, Cruel and
Unusual Punishment: Denying Ex-Felons the Right to Vote After Serving Their Sentences, 25 Am.
U. J. Gender Soc. Pol’y’ & L. 327, 355-56 (2017). One study, for instance, found that former
arrestees who voted were less than half as likely to be re-arrested, as compared to their non-voting
counterparts. Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest:
Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193, 205 (2004). And another
study found that “individuals who are released in states that permanently disenfranchise are
roughly nineteen percent more likely to be rearrested than those released in states that restore the
franchise post-release.” Hamilton-Smith & Vogel, 22 Berkeley La Raza L.J. at 426.
These real-world results are not merely coincidental: Academics interviewing former
offenders have found that a significant portion made connections between their inability to vote
and their reintegration into society. Bryan L. Miller & Joseph F. Spillane, Civil Death: An
Examination of Ex-Felon Disenfranchisement and Reintegration, 14 Punishment & Society 40228 (2012). Criminal disenfranchisement thus engenders the exact public safety problems that it
purports to address.
B. Disenfranchisement’s negative effects also extend beyond the disenfranchised
individual, to families and entire communities.
Evidence suggests “that disenfranchisement of the head of a household discourages his or
her entire family from civic participation.” Erika Wood, Brennan Ctr. for Just., Restoring the Right

8

 to Vote 12 (2d ed. 2009). 4 Children in particular often learn “such mundane information as how
to register and where to vote” from their parents, and learn the basics of political engagement from
them too. Eric Plutzer, Becoming a Habitual Voter: Inertia, Resources, and Growth in Young
Adulthood, 96 Am. Pol. Sci. Rev. 41, 43 (2002). Rather than being given examples of democratic
participation, however, the families of ex-offenders are presented with a core example of civic
disengagement, leading to generational non-voting.
These effects extend into the surrounding community. One study, for instance, found that
states with highly restrictive criminal disenfranchisement laws have lower overall turnout than
states with less restrictive disenfranchisement laws, even among those eligible to vote. Aman
McLeod et al., The Locked Ballot Box: The Impact of State Criminal Disenfranchisement Laws on
African American Voting Behavior and Implications for Reform, 11 Va. J. Soc. Pol’y & L. 66, 80
(2003). This occurs because voting is “a communal experience, and limitations on some members
of the community have been shown to translate into lower overall participation.” Wood, supra, at
12; see also Expert Report of Dr. Traci Burch Filed In Support of Pls.’ Mot Summ. J. (Burch
Report) 44-45.
Worse, because ex-offenders are more likely to be poor and to live in low-income
communities, the dampening effect of disenfranchised citizens on community voting is magnified
by this concentration of ex-offenders. See Burch Report 43 (noting that some North Carolina
communities had community supervision rates as high as 20 percent of young people aged 18-34).
That dampening effect, in turn, lessens the political power of the entire community. Politicians
can safely ignore these low-engagement communities and focus on areas with higher voter turnout,

4

Available at https://www.brennancenter.org/sites/default/files/legacy/Democracy/Restoring
%20the%20Right%20to%20Vote.pdf.
9

 resulting in a communal loss of voice in governance. Such a result strikes at the heart of the
democratic process, ensuring that whole communities remain essentially unrepresented.
C. This silencing of communities is not disenfranchisement’s only harm to democracy. In
barring political participation by those who have previously violated any of a wide range of laws,
felon disenfranchisement threatens to create a criminal code that does not reflect the views of a
majority of citizens.
For example, there is no principled reason that citizens subject to prosecution for activities
that are malum prohibitum should lack an equal say in determining whether those activities should
continue to be punishable as felonies in the future. Consider laws regulating gambling. Putting
aside constitutional considerations, a state might seek to deem the operation of a bingo game
without a license to be a felony, see N.C.G.S. § 14-309.5(b), while permitting home poker games.
But there is no good reason that an individual previously convicted of running illegal bingo games
should lack a say as to whether those games should continue to be prohibited in the future, while
poker remains legal. The same is true for a citizen convicted of possessing marijuana for personal
consumption or a sawed-off shotgun, who might justifiably have views about whether the State
should continue to deem possession of those items to be a felony. By depriving ex-offenders of
that voice, N.C.G.S. § 13-1 risks skewing the outcome of the democratic process. And this, in
turn, directly interferes with citizens’ rights under North Carolina’s Free Elections Clause to
elections that “ascertain, fairly and truthfully, the will of the people.” Common Cause v. Lewis¸
No. 18 CVS 014001, 2019 WL 4569584, at *110 (N.C. Super. Ct. Sept. 3, 2019); see N.C. Const.
art. I, § 10; Pls.’ Mot. Summ. J. 21-29.
Indeed, felon disenfranchisement may have real-world impacts on which laws are
vigorously enforced and what conduct is prohibited. In 2018 alone, two North Carolina county

10

 sheriffs were elected by vote margins less than the number of disenfranchised individuals in the
county, and ten members of the General Assembly were elected by a vote margin of less than 1,000
votes. Baumgartner Report 27-28. Barring political participation by those who have run afoul of
rules set by the majority may thus have very real effects on those rules’ future scope, while risking
the possibility that North Carolina’s criminal law flouts the democratic will.
III.

THE DETRIMENTAL EFFECTS OF DISENFRANCHISEMENT
COMPOUNDED BY “USER-FUNDED” CRIMINAL JUSTICE

ARE

Just as the harm inflicted by disenfranchisement has been increased through
overcriminalization, it has also been compounded by the growth of so-called “user-funded”
criminal justice—that is, the funding of the criminal justice system through the collection of fees
from criminal defendants. This creates a deeply regressive form of taxation, threatening a vicious
cycle of debt, poverty, and crime. And as recent scholarship has made clear, user-funded justice—
both in North Carolina and across the United States—frequently leads to a de facto system of
wealth-based disenfranchisement. See Beth A. Colgan, Wealth-Based Penal Disenfranchisement,
72 Vand. L. Rev. 55 (2019).
The growth of fees and court costs in criminal cases stems from a deliberate policy choice
to rely increasingly on the justice system as a source of public revenue. In 1986, the Conference
of State Court Administrators noted the proliferation of “[f]ees and miscellaneous charges . . . as
[a] method to meet demands for new programs without diminishing general tax revenues.”
Conference of State Court Administrators, Standards Relating to Court Costs: Fees,
Miscellaneous Charges and Surcharges and a National Survey of Practices 4–5 (June 1986). 5
Nearly 30 years later, the Council of Economic Advisors observed that state and local jurisdictions

5

Available at https://ncsc.contentdm.oclc.org/digital/collection/ financial/id/81/.
11

 were pressured to transfer the burden of criminal-justice expenditures from taxpayers to
defendants. Executive Office of the President, Economic Perspectives on Incarceration and the
Criminal Justice System 34-54 (Apr. 2016). 6
The resulting proliferation of fines and fees in North Carolina is dizzying. See N.C. Admin.
Office of the Courts, Court Costs and Fees Chart (Dec. 2019) 7; Burch Report 24-31. Indeed, the
costs of conviction and sentencing have increased by nearly 400% over the past two decades.
Burch Report 23. And these costs are significant in amount as well as number: The average
probationer owes nearly $2,500 in outstanding fees, court costs, restitution, and supervision fees.
Baumgartner Report 22 at Table 3.
Such multiplying fees create a system in which those asked to fund the government are
those who often are least able to pay—and can generate a vicious cycle of crime and poverty. Only
about half of released North Carolina prisoners are employed a year after their release, making the
payment of large court debts unrealistic at best. Burch Report 32. Indeed, one study using
nationally representative data found that about 36 percent of people arrested once in 2017, and 49
percent of those arrested multiple times, had individual incomes below $10,000 per year. Press
Release, Alexi Jones & Wendy Sawyer, Prison Policy Initiative, Arrest, Release, Repeat: How
police and jails are misused to respond to social problems (Aug. 2019) 8; see also Adam Looney

6

Available at https://obamawhitehouse.archives.gov/sites/default/files/page/files/20160423_
cea_incarceration_criminal_justice.pdf.
7

Available at https://www.nccourts.gov/assets/documents/publications/2019_Criminal_court_
costs_chart.pdf?uTsvyAraXdZl1sBAK1xTFZfZs8pM3h29.
8

Available at https://www.prisonpolicy.org/reports/repeatarrests.html.
12

 & Nicholas Turner, Work and opportunity before and after incarceration, The Brookings
Institution (Mar. 14, 2018). 9
User-funded justice thus imposes significant harms on its own. But N.C.G.S. § 13-1
compounds those harms by tying the right to vote to a citizen’s ability to pay this ever-mounting
array of fines and fees. Under N.C.G.S. § 13-1(1), individuals convicted of felonies can regain the
franchise only after they have been “unconditional[ly] discharged . . . by the agency of the State
having jurisdiction of that person.” Individuals still on probation thus remain disenfranchised.
And if a probationer fails to pay the amount owed in costs and fees, courts may extend the term of
probation first for five years—and then for three additional years to “allow[] the defendant to
complete a program of restitution.” N.C.G.S. § 15A-1342(a); see id. § 15A-1344(d). Failure to
pay court costs or restitution can also result in revocation of post-release supervision, triggering a
return to prison and the tolling of the supervised release period during that re-incarceration. Id.
§ 15A-1368.4(d), (f).
Although courts may take ability to pay into account when assessing court costs and fees,
evidence demonstrates that they rarely do: In 2017, courts in most counties waived (in whole or in
part) criminal costs in well under ten percent of cases. See N.C. Admin. Office of the Courts, 2018
Report on Criminal Cost Waivers: G.S. 7A-350 at 6-8 (Feb. 1, 2018) (collecting data). 10 Judges
in Camden, Perquimans, Cabarrus, and Moore counties waived less than 1 percent of fines and
fees that same year. Id.; ACLU of North Carolina, At All Costs: The Consequences of Rising Court

9

Available at
incarceration/.

https://www.brookings.edu/research/work-and-opportunity-before-and-after-

10

Available
at
https://nccriminallaw.sog.unc.edu/wp-content/uploads/2018/02/20180201NCAOC-Report-on-Criminal-Cost-Waivers.z.pdf.
13

 Fines and Fees in North Carolina 14 (2019) 11; see also Burch Report 33. 12 Nor does it appear
that judges must consider ability to pay when expanding the length of probation due to failure to
pay fines and fees. See N.C.G.S. § 15A-1344(d) (court may extend probation); id. § 15A-1343.2;
id. § 15A-1364(a) (court can extend time to pay even when failure to pay resulted from good-faith
effort); James M. Markham, Bench Card: Monetary Obligations in North Carolina Criminal
Cases 5 (2018). 13 Just as bad, probationers lack any mechanism to appeal an order extending their
probation when it is issued. See Pls.’ Mot. Summ. J. 14-15.
Taken as a whole, this scheme can disenfranchise citizens unable to pay the costs of their
prosecution for years longer than citizens able to pay those ever-mounting costs. In addition to
the other constitutional flaws inherent in N.C.G.S. § 13-1, see supra 10 (Free Elections Clause);
Pls.’ Mot. Summ. J. 48-51 (Freedom of Speech and Assembly); id. at 38-48 (Equal Protection
Clause), that result runs afoul of the plain text of the Property Qualifications Clause of the North
Carolina Constitution, which mandates that “no property qualification shall affect the right to vote
or hold office.” N.C. Const. art. I, § 11.
There is every reason to believe that this clause extends to all sorts of wealth. For instance,
one delegate to the 1868 constitutional convention, writing later in his capacity as a North Carolina
Supreme Court justice, stated that the term “property,” in the Property Qualifications Clause, is
used “[i]n its most general sense,” and “embraces every thing which a man may have exclusive

11

Available at https://www.acluofnorthcarolina.org/sites/default/files/field_documents/aclu_
nc_2019_fines_and_fees_report_17_singles_final.pdf.

12

This problem is only getting worse: North Carolina legislators recently enacted multiple
measures “to deter judges from granting waivers to people who are unable to pay court debt.”
ACLU of North Carolina, At All Costs, supra, at 13-14.
13

Available at https://nccriminallaw.sog.unc.edu/wp-content/uploads/2018/08/2018-07-3120180094-Monetary-Obligations-Card%E2%80%93for-proofing.pdf.
14

 dominion over.” Wilson v. Bd. of Alderman of the City of Charlotte, 74 N.C. 748, 756 (1876).14
Application of the Property Qualifications Clause to N.C.G.S. § 13-1 is thus straightforward: An
ex-offender who lacks the wealth necessary to pay the costs of his prosecution is barred from
voting for years longer than an otherwise identical ex-offender who has sufficient property to pay
those costs, contravening the core command that political rights not turn on wealth.
***
In sum, whether or not criminal disenfranchisement can justifiably be imposed for the
few egregious crimes for which it was historically intended, it cannot be justified in its current
incarnation. Magnified by the effects of overcriminalization and user-funded criminal justice,
felon disenfranchisement works deep harms on individuals, communities, and the democratic
process, while taxing and injuring those with the least means to respond. That result cannot be
squared with sound public policy, and, as Plaintiffs explain in great detail, it cannot be squared
with the essential guarantees of the North Carolina Constitution.

14

See also C.C. Pool, Speech Delivered at Constitutional Convention on the Question of Suffrage
and Eligibility to Office (Feb. 18, 1868), in 34 Wkly. N.C. Standard No. 8 (Feb. 26, 1868),
https://chroniclingamerica.loc.gov/lccn/sn85042148/1868-02-26/ed-1/seq-4/ (explaining to the
constitutional convention that the “best and the most honest men are too frequently totally devoid
of financial ability, and often die in poverty; but the State cannot spare such men from her
counsels”).
15

 CONCLUSION
For the reasons set forth, amici respectfully urge this Court to grant Plaintiffs’ motion for
summary judgment.

/S/ CHEYENNE N. CHAMBERS
CHEYENNE N. CHAMBERS
N.C. State Bar No. 48699
TIN, FULTON, WALKER & OWEN, PLLC
301 East Park Avenue
Charlotte, NC 28203
Tel.: (704) 338-1220
Fax: (704) 338-1312
cchambers@tinfulton.com

MELISSA ARBUS SHERRY
S/ TYCE R. WALTERS
TYCE R. WALTERS
LATHAM & WATKINS LLP
555 11th Street, NW
Suite 1000
Washington, DC 20004
Tel: (202) 637-3356
Fax: (202) 637-2201
melissa.sherry@lw.com
tyce.walters@lw.com

16

 CERTIFICATE OF SERVICE
I certify that a copy of the foregoing has been served on all counsel by email addressed to:
FORWARD JUSTICE
Daryl Atkinson
Whitley Carpenter
400 W Main Street
Suite 203
Durham, NC 27701
daryl@forwardjustice.org
Counsel for Plaintiffs

ARNOLD & PORTER
KAYE SCHOLER LLP
R. Stanton Jones
Elisabeth S. Theodore
Daniel F. Jacobson
Graham White
601 Massachusetts Avenue NW
Washington, DC 20001-3743
(202) 942-5000
stanton.jones@arnoldporter.com
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
New York, NY 10006
aditi.juneja@protectdemocracy.org
Counsel for Plaintiffs

Brian D. Rabinovitz
114 W. Edenton Street
Raleigh, NC 27603
BRabinovitz @ncdoj.gov
Counsel for Legislative Defendants

Dated: 24th day of June, 2020

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

/s/ Cheyenne N. Chambers
Cheyenne N. Chambers (N.C. Bar # 48699)