STA TE OF NORTH CAROLINA
COUNTY OF WAKE

, IN THEQENERAL COURT OF JUSTICE
.. SUPERIOR COURT DIVISION
19-cv-15941

COMMUNITY SUCCESS INITL}nVE; ,
JUSTICE SERVED NC, INC.; WASH· ·
AWA Y UNEMPLOYMENT; NORTH
CAROLINA STATE CONFERENCE OF
THE NAACP; TIMOTHY LOCKLEAR;
DRAKARUS JONES; SUSAN MARION;
HENRY HARRISON; ASHLEY CAHOON;
SHAKITA NORMAN,
Plaintiffs,
V.

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

MOTION OF NORTH CAROLINA
JUSTICE CENTER AND DOWN HOME
NC FOR LEAVE TO FILE BRIEF AS
AMICUS CURIAE

 -2-

The North Carolina Justice Center ("NCJC") and Down Home NC respectfully move this
Court for leave to file an amicus curiae brief in support of Plaintiffs. The Plaintiffs and Defendants
North Carolina State Board of Elections have consented to this motion; Defendants North Carolina
House of Representative and North Carolina Senate "take no position [on the motion] and leave
the matter to the discretion of the court." Amici are not seeking to argue the brief. The amicus
curiae brief is attached to this motion. In support of this motion, NCJC shows the following:
Nature of Applicant's Interest

The North Carolina Justice Center ("the Justice Center" or "NCJC") is a non-profit legal
services provider with a mission to eliminate poverty in North Carolina by ensuring that every
household in the state has access to the resources, services, and fair treatment it needs to achieve
economic security. The North Carolina Justice Center is made up of a number projects, including
the Fair Chance Criminal Justice Project, which is a team of lawyers who partner with impacted
people, congregations, concerned community members, advocacy organizations, and decisionmakers to change local and state policies and practices to make the criminal justice system more
fair from arrest to reentry. The Fair Chance Criminal Justice Project's mission is to improve
procedures, practices, and policies throughout the criminal justice system to treat people more
fairly and to ensure people can reintegrate with their families and communities when exiting the
criminal justice system. The Justice Center has long worked on combating the collateral
consequence of a criminal record including felony disenfranchisement. NCJC is part of a coalition
to end felony disenfranchisement and includes attorneys who have represented people prosecuted
for voting while under supervision for a felony conviction in both Alamance and Hoke Counties.
Down Home North Carolina (DHNC or Down Home NC) is a community organization
that works to build power for poor and working people of all races in rural North Carolina. Down

 -3-

Home NC is founded on the belief that small towns and rural areas cannot be ignored if we want
to see positive change at the state and national level. Through our network of member-led, countybased chapters, we are engaged in year-round organizing, mutual aid programs, leadership
development, multi-racial movement building, and civic engagement.
Reasons Why an Amicus Brief is Desirable

The issues raised by plaintiffs in the complaint are important because felony
disenfranchisement and its enforcement methods efficiently strip away the political voice of entire
geographical communities. Denying a person on felony probation or post-release the right to vote
is a record-based disqualification that disproportionately impacts people of color. This brief will
provide the Court insight about the chilling effect of prosecutions for voting while on felony
probation or post-release. The Justice Center has experience defending people prosecuted for
mistakenly voting while under supervision for a felony conviction. Down Home NC has
experience registering people to vote and advocating for the rights of people prosecuted for voting
while on felony probation or post-release. The brief will highlight the intent and actual chilling
effect of the enforcement mechanism on voter turnout of people with criminal records.
Questions to be Addressed in the Amicus Brief

The question of law before this Court is whether felony disenfranchisement 1s
unconstitutional under Article I§§ 10, 11, 12, 14 and 19 of the North Carolina constitution. This
amicus will discuss the intent and impact of a harmful byproduct of felony disenfranchisement enforcement through criminal prosecutions. The chilling effect that criminal prosecutions for
voting while under supervision for a felony conviction has on people with criminal records and
their families should be contemplated by this Court while deciding the constitutionality of the
state's automatic record-based disenfranchisement scheme.

 -4-

Position on Question Presented

Amici urge the Court to rule for Plaintiffs.
Conclusion

For the reasons stated above, the North Carolina Justice Center and Down Home NC
respectfully request this Court grant the motion for leave to file an amicus curiae brief in support
of plaintiffs, Community Success Initiative, Inc., et al.

Respectfully submitted, this the 24th day of July, 2020.
THE NORTH CAROLINA JUSTICE CENTER

J ~
N.C. Bar No. 54949
The North Carolina Justice Center
224 S. Dawson St.
Raleigh, NC 27601
P.O. Box 28068
Raleigh, NC 27611
(919) 856-2164
jonathan@ncjustice.org

 -5-

CERTIFICATE OF SERVICE
I hereby certify that a copy of foregoing motion for leave to file an amicus curiae brief has been
duly served via email upon:
Daryl Atkinson (N.C. Bar No. 39030)
Whitley Carpenter (N.C. Bar No. 49657)
400 W Main St., Suite 203
Durham, NC 27701
(9 I 9) 323-3 889
daryl@forwardjustice.org
wcarpenter@forwardjustice.org
Penda Hair*
P.O.Box42521
Washington, D.C. 20015
phair@forwardjustice.org
Counsel for Plaintiffs
R. Stanton Jones*
Elisabeth S. Theodore*
Daniel F. Jacobson*
Graham White*
601 Massachusetts Ave. NW
Washington, DC 20001-3743
(202) 942-5000
stanton.jones@arnoldporter.com
Elisabeth.theodore@amoldporter.com
Daniel.jacobson@amoldporter.com
graham.white@amoldporter.com
Counsel for Plaintiffs
Benjamin L. Berwick*
15 Main Street, Suite 312
Watertown, MA 02472
(202) 579-4582
ben.berwick@protectdemocracy.org
Farbod K. Faraji*
77 Pearl Street
Middletown, CT 06459
(202) 579-4582

Brian D. Rabinovitz
114 W. Edenton St.
Raleigh, NC 27603
BRabinovitz@ncdoj.gov
Counsel . fior Leaislative
b
Defendants
Paul M. Cox
Olga Vysotskaya
114 W. Edenton St.
Raleigh, NC 27603
pcox@ncdoj.gov
OVysotskaya@ncdoj.gov
Counsel/or State Board
Defendants

 -6-

farbod.faraji@protectdemocracy.org
Stephanie Llanes*
115 Broadway, 5th Floor,
New York, NY 10006
(202) 579-4582
stephani e.llanes@protectdemocracy.org
Counsel for Plaintiffs

*Admitted Pro Hae Vice
Respectfully submitted, this the 24th day of July, 2020.
THE NORTH CAROLINA JUSTICE CENTER

Jo~~
N.C. Bar No. 54949
The North Carolina Justice Center
224 S. Dawson St.
Raleigh, NC 27601
P.O. Box 28068
Raleigh, NC 27611
(919) 856-2164
jonathan@ncjustice.org

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
19-CV-15941

COMMUNITY SUCCESS INITIATIVE;
JUSTICE SERVED NC, INC.; WASH A WAY
UNEMPLOYMENT; NORTH CAROLINA
STATE CONFERENCE OF THE NAACP;
TIMOTHY LOCKLEAR; DRAKARUS JONES;
SUSAN MARION; HENRY HARRISON;
ASHLEY CAHOON; SHAKITA NORMAN,
Plaintiffs,
V.

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

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[PROPOSED]
BRIEF OF AMICI CURIAE,
NORTH CAROLINA JUSTICE
CENTER AND DOWN HOME NC

 -11-

INDEX

TABLE OF AUTHORITIES ......................................................................................................... iii
ARGUMENT ................................................................................................................................... !
I.

The Personal Effect of Prosecutions on African-American North Carolinians ..................... 2
A.

Affected Voters .......................................................................................................... 2

B.

Affected Voters' Rights Workers ............................................................................... 5

II. Enforcement of Felony Disenfranchisement Laws Suppress the African-American Vote .... 7
A.

Felony Disenfranchisement Laws Are Unduly Harsh and Their Application Has
Racial and Political Components ............................................................................... 7

B.

Felony Disenfranchisement Laws Suppress the African-American Vote Beyond
Those They Explicitly Disenfranchise ..................................................................... 1O

CONCLUSION ............................................................................................................................. 1I

 -lll-

Table of Authorities

Statutes
N.C. Gen. Stat. § 163-273 ............................................................................................................... 8
N.C. Gen. Stat. §163-275(5) ........................................................................................................ 1,2
NC Gen. State §163-55(a)(2) (2017) .............................................................................................. 8

Journal Articles
Aman McLeod, Ismail K. White, and Amelia R. Gavin, "The Locked Ballot Box: the
Impact of State Criminal Disenfranchisement Laws on African American Voting
Behavior and Implications for Refonn," 11 VA. J. Soc. POL'Y & L. 66 (2003),
available at
http://polisci.osu.edu/sites/polisci.osu.edu/files/l l _ Va._J._Soc._Pol'y_%26 _ L._66,_%
5Bl %5D.pdf.............................................................................................................................. 10
Bridgett A. King and Laura Erickson, "Disenfranchising the Enfranchised: Exploring the
Relationship Between F e!ony Disenfranchisement and African American Voter
Turnout," JOURNAL OF BLACK STUDIES, Vol. 47, No. 8, Nov. 2016, 799-821 ......................... 10
Melanie Bowers and Robert R. Preuhls, "Collateral Consequences of a Collateral
Penalty: The Negative Effect of Felon Disenfranchisement Laws on the Political
Participation ofNonfelons," SOCIAL SCIENCE QUARTERLY, Vol. 90, Issue 3 (Sept.
2009) .......................................................................................................................................... 10
Pamela S. Karlan, "Convictions and Doubts: Retribution, Representation, and the Debate
Over Felon Disenfranchisement," Research Paper No. 75, Stanford Public Law and
Legal Theory Working Paper Series, available at
https://papers.ssm.com/sol3/papers.cfrn?abstract_id=484543 (last visited 13 July 2020) ....... 11
Pippa Holloway, "A History of Stolen Citizenship," 12 Origins: Current Events in Hist.
Perspective 9, -June 2019 ............................................................................................................ 8
Sam Cleveland, SLAPPing Down Discriminatory Voter Fraud Prosecutions, 103 MINN.
L. REv. (2019), available at https://minnesotalawreview.org/2019/02/11/slappingdown-discriminatory-voter-fraud-prosecutions/ ......................................................................... 8

News Articles
Adam Lawson, Gaston residents take pleas for illegal votes, Gaston Gazette (July 26,
2019), available at https://www.gastongazette.com/news/20190726/gaston-residentstake-pleas-for-illegal-votes .......................................................................................................... 9
Crystal Mason, I was Arrested for Voting, but I won't let the Government Intimidate Me,
The Washington Post (September 30, 2019, 5:26 PM),
https://www.washingtonpost.com/opinions/i-was-arrested-for-voting-but-i-wont-letthe-govemment-intimidate-me/20 l 9/09/30/7b626 l b8-dfbf- l l e9-8dc8498eabc l 29a0_story.html ........................................................................................................... 4

 ·IV-

Dashiell Coleman, Prosecution possible in Gaston voting cases, Gaston Gazette (Aug.
24, 2018), available at https://www.gastongazette.com/news/20180824/prosecutionpossible-in-gaston-voting-cases .................................................................................................. 9
Jack Healy, Arrested,jailed and charged with a Felony, For Voting, The News &
Observer (Aug. 2, 2018), available at https://www.newsobserver.com/news/po1iticsgovernment/article2160091 OS.html ............................................................................................ 8
Jack Healy, Arrested, Jailed, and Charged with a Felony. For Voting, The New York
Times (August 2, 2018), .............................................................................................................. 2
Sam Levine, A Black Woman Faces Prison Because of a Jim Crow-era Plan to 'Protect
White Voters', The Guardian (December 16, 2019, 6:00 PM),
https ://www.theguardian.com/us-news/20 19/ dec/l 6/no1th-caro Iina-felony-vote-lawb lack-woman ............................................................................................................................... 3

Websites
"Eligible Eight" Best Practice Responses, You Can Vote, available at
https://static l .squarespace.com/static/5c6493eefb l 8207f45208219/t/5e l 36394e7b 77fl 99544 7
be8/l 57832898 l 3 59/The+Eligible+8+ .pdf.. ............................................................................... 6
Bob Hall and Isela Gutierrez, The Deceit of Voter Fraud, Democracy North Carolina (2017),
available at https://democracync.org/wp-content/uploads/2017/05/FraudReport.pdf ................ 8
Division of Adult Correction and Juvenile Justice, Community Corrections Policy & Procedures,
North Carolina Department of Public Safety Division of Adult Correction and Juvenile Justice
(April 2019), available at https://files.nc.gov/ncdps/documents/files/Policy.pdf. ...................... 2
NAACP Legal Defense and Educational Fund and The Sentencing Project, Free the Vote:
Unlocking Democracy in the Cells and on the Streets, ............................................................... 5
National Conference of State Legislators, Felon Voting Rights, October 14, 2019, available at
https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx .................... 1
North Carolina State Board of Elections, Post-Election Audit Report (2017), available
athttps://s3.amazonaws.com/dl.ncsbe.gov/sboe/PostElection%20Audit%20Report_ 20 l 6%20General%20Election/Post-Election_ Audit_Report. pdf
·····················································································································································9

 -1-

ARGUMENT

North Carolina is one of twenty-one states that enforces felony disenfranchisement laws
by making it a felony to register or vote while serving an active sentence, probation or parole for
a felony conviction. National Conference of State Legislators, Felon Voting Rights, October 14,
2019, available at https://www.ncsl.org/research/elections-and-campaigns/felon-votingrights.aspx. This legal scheme has long served to disenfranchise African-Americans from voting
in North Carolina and across the United States, not only because it actively bars this population
from voting but also because its enforcement, including prosecutions under N.C. Gen. Stat.

§163-275(5), instills fear in eligible voters and discourages them from exercising their
fundamental right to vote.
The anti-democratic effect of voter prosecutions is not academic. Neither the legal
precedent nor the statistics can adequately convey the harrowing impact that has been visited on
voters in the state of North Carolina and throughout the nation. A pervasive sense of fear and
lack of clarity has been exacerbated by the prosecutions that have occurred across the state,
chilling the voting activity of many members of society. To document the full impact of the
chilling effect thus requires considering the issue through multiple lenses.
First, the personal experience of voters themselves reflect that certain people, primarily
African-American voters are discouraged from attempting to exercise their fundamental right to
vote because of the fear caused by the disenfranchisement laws and their enforcement. This
includes those with no felony records. Second, this fear is rational given that the felony
disenfranchisement laws are unduly harsh and punitive and their enforcement serves the goal of
voter suppression rather than election integrity. Lastly, the chilling effect of felony

 -2-

disenfranchisement laws and their enforcement reflected in individual's personal narratives is
also borne out by the evidence. Felony disenfranchisement laws and their enforcement harm
African-American communities and prevent the full participation of their eligible voters.
Accordingly, the Court should rule in favor of the plaintiffs in this matter.

I. The Personal Effect of Prosecutions on African-American North Carolinians.
A. Affected Voters
Before any prosecution under the felony disenfranchisement scheme becomes a data point, it
is first a personal tragedy. People who have been prosecuted under N.C. Gen. Stat.§ 163-275(5)
are working to reintegrate into the community and support themselves and their families.
Prosecution and conviction of these voters inhibits these positive actions. People who are
prosecuted for voting when they thought they were eligible express feeling permanently
excluded from the democratic process from that point onward, effectively extending any
sentence they receive in perpetuity.
For example, Taranta Holman, a citizen of Alamance County who was prosecuted in
2017 for voting while on probation, was quoted in the news as stating: "[e]ven when I get this
cleared up, I still won't vote. That's too much of a risk." Jack Healy, Arrested, Jailed, and
Charged with a Felony. For Voting, The New York Times (August 2, 2018),
https ://www .nytimes.com/2018/08/02/us/arrested-voting-north-carolina.html. Mr. Holman was
one of the "Alamance 12," a group of twelve North Carolinians in Alamance County who were
prosecuted in 2018 for voting while on probation or parole in the 2016 election. Nine of the
twelve are black. Mr. Holman was unaware 1 that he could not vote in the 2016 presidential

1

The complexity of sentencing and lack of uniformity across probation offices in the state result
in many people not getting the information they need once eligible to vote. See Division of Adult

 -3election and went to the polls at the urging of his mother. Id. When his family told him about
the warrant out for his arrest in the local newspaper, he thought it was a joke. Mr. Holmau's
resultant belief that voting is a "risk" reflects the hann inflicted by this type of prosecution and
the longstanding effect of exclusion from civic society.
The fear instilled by felony disenfranchisement laws aud the shadow that remains over a
justice-involved person's life, is echoed in the story of Anthony Haith, auother member of the
Alamance 12. Mr. Haith's affidavit is appended hereto as Exhibit A. Mr. Haith was prosecuted
in 2018 for voting in the 2016 election while on probation. Ex. A at paragraph 4. When he
arrived at the polls aud voted in 2016, he was directed to a polling station to fill out his ballot.
Ex. A at paragraph 6. Mr. Haith stated, "No one told me that I could not vote." Id. When he was
put on probation, Mr. Haith was informed of many things he was prohibited from doing, but
voting was not one of them. Ex. A at paragraph 5. He was shocked when the police showed up
to arrest him, stating, "I thought I was just exercising my right to vote and had no idea I was
barred from doing so." Ex. A at paragraph 7. "Being prosecuted shook my faith in the process
that people fought and died for me to be able to participate in." Ex. A at paragraph 8. Anthony
remains fearful of voting until this day, recalling the feelings of standing before the judge and
being treated "as ifI had knowingly committed a grave wrong, no matter how much I told them
that I was unaware of what I was doing." Ex. A at paragraph 10.
In a similar example, Lanisha Bratcher registered to vote in Hoke County during the
March 2016 primary. Like Mr. Haith, nobody told her she could not vote when she was put on
probation. Sam Levine, A Black Woman Faces Prison Because of a Jim Crow-era Plan to

Correction and Juvenile Justice, Community Corrections Policy & Procedures, North Carolina
Department of Public Safety Division of Adult Correction aud Juvenile Justice (April 2019),
available at https://files.nc.gov/ncdps/documents/files/Policy.pdf.

 -4-

'Protect White Voters', The Guardian (December 16, 2019, 6:00 PM),
https ://www.theguardian.com/us-news/2019 /dec/16/north-caro Jina-felony-vote-law-blackwoman. Later that year, she went to the polls after a dinner event put on by her church; she had
no intention of "tricking anybody or being malicious in any kind of way" by voting. Id. Ms.
Bratcher's life was turned upside down by the felony voter conviction, and she ultimately ended
up leaving her job, citing frustration at having to deal with the charges publicly, for something
she never even intended to do. Id. She expressed apprehension at ever voting again, again
demonstrating a feeling of permanent exclusion from this foundational right. Id. The legacy of
felony disenfranchisement prosecutions aligns directly against the principles of democracy that
the institution of voting purports to uphold
North Carolinians' experiences of exclusion are echoed by the experiences of those
prosecuted under similar laws in other states. For example, in Texas, Crystal Mason was
arrested and charged with illegal voting in 2016 after casting a provisional ballot. Crystal
Mason, I was Arrested for Voting, but I won't let the Government Intimidate Me, The
Washington Post (September 30, 2019, 5:26 PM), https://www.washingtonpost.com/opinions/iwas-arrested-for-voting-but-i-wont-let-the-govemment-intimidate-me/2019 /09 /3 0/7b626 l b8dfbf- l l e9-8dc8-498 eabc l 29 a0 _story.html. Ms. Mason was considered ineligible to vote because
she was on federal supervised release for a previous tax fraud conviction. Id. Similar to the
experiences of the North Carolina residents, no one had ever informed Ms. Mason that she could
not vote. Id. Even though she was busy working to rebuild her life and support her children, she
was targeted because of her past convictions and involvement with the justice system. Id. This
type of targeting leads to the ostracization of justice-involved people and contributes to the

 -5-

pervasive fear among their communities regarding voting, ultimately chilling both their vote and
broader participation in the voting process.

B. Affected Voters' Rights Workers
The chilling effect of such prosecutions on African-American voters is felt throughout the
communities where they take place.2 Not only are the prosecuted voters themselves fearful of
ever resuming voting after their prosecutions, but community members are also impacted by the
prosecutions, subsequently becoming less likely to engage in the voting process.3 Community
volunteers who have engaged in efforts to register people to vote recount their sadness and
frustration with the impact of the fear caused by prosecutions on their work. These workers
encounter people who have never been disqualified, or who are no longer disqualified, from
voting who hold on to apprehension based on the pervasive fear of a felony conviction or jail
time.
For example, Deborah Smith, a voter registration worker with volunteer experience, has seen
the chilling effect of prosecutions in real time. Ms. Smith testified in an affidavit appended to
this brief as Exhibit B. Not only has she worked and talked with people disenfranchised by the
current law because they are still on probation or serving a sentence, she has also spoken to
people eligible to vote who are fearful of doing so because of past convictions. Ex. B at

2

For further discussion of the data on this issue, see infra Section II.B.
See infra Section 11.B; see also NAACP Legal Defense and Educational Fund and The
Sentencing Project, Free the Vote: Unloc!dngDemocracy in the Cells and on the Streets,
December 19, 2016, available at https://www.sentencingproject.org/publications/4669/ (noting
that"[f]elony disenfranchisement affects more than individual voters themselves-it diminishes
the voting strength of entire communities of color, which are too often already plagued with
concentrated poverty, substandard housing, limited access to healthcare services, failing public
schools, and environmental hazards. As a result, people in these communities have even less of
an opportunity to effect much-needed positive change through the political process").
3

 -6-

paragraph 4. Many people choose not to vote out of fear that there will be repercussions from
the government because of their criminal record. Others are fearful based on prosecutions of
fellow community members they have heard about, such as the Alamance 12. Ex.Bat paragraph
5. To them, the risk of voting is not worth any risk ofreceiving another conviction or going to
jail, even though they are now eligible. Id.
Ms. Smith has seen this fear when trying to register people to vote. Outside of the public
library in Graham, North Carolina, she spoke to a man in his 60s about registering to vote. Ex. B
at paragraph 8. He infonned her that he had never voted because he thought he was ineligible
because of a misdemeanor juvenile charge he received when he was 16 years old. Id. He said
that his fear of voting was confinned by the recent prosecution of the Alamance 12. Id. Ms.
Smith tried her best to reassure the man that he was eligible to vote and to get him registered, but
his fear was too entrenched and profound. Id. Fear of prosecution can effectively strip people of
their fundamental right and prevent them from contributing to the civic process of this country.
Ms. Smith is even more discouraged when she talks to voters who have been prosecuted
under the disenfranchisement laws. She vividly remembers how a member of the Alamance 12
had moved away from Alamance county right before he was charged with felony voting. Ex. B at
paragraph 7. He moved to Wilmington with his family for a new job opportunity and to plant
roots for a new beginning. Id. It was only shortly after he moved that he was charged for voting
while on probation. Id. He subsequently lost his job. Id.
Ms. Smith's experiences are not an anomaly.4 Felony disenfranchisement laws have a
profound effect on real people, and its impact is more than a number. Each individual affected

4

See "Eligible Eight" Best Practice Responses, You Can Vote, available at
https://static l .squarespace.com/static/5c6493 eetb 18207f452082 ! 9/t/5e 1363 94e7b77fl 99544 7be

 -7represents a loss to our democracy. Furthermore, each individual story must be understood in the
overarching context of an enforcement scheme that effectively targets the African-American
vote.
II. Enforcement of Felony Disenfranchisement Laws Suppress the African-American

Vote.
Each story of a felony disenfranchisement prosecution occurs in a historical and societal
context. First, the criminalization of voting while on probation and parole is disproportionately
punitive, heightening the fear instilled by its enforcement, which is both racialized and
politicized. Second, the study of voting patterns reveals that the enforcement of felony
disenfranchisement laws not only harms individuals by separating them from the franchise, but it
harms entire communities by diluting and deterring the eligible African-American vote. The
negative effect of felony disenfranchisement laws and their enforcement on potential African
American voters is clear.

A.

Felony Disenfranchisement Laws Are Unduly Harsh and Their Application
Has Racial and Political Components

The 1901 General Assembly's express purpose for allowing prosecution of people who vote
while under felony supervision was to keep African Americans from voting. 5 The law, both then
and in its current form, provides that anyone serving a sentence for a felony conviction, in most
cases entirely unrelated to elections or voting, is barred from voting in North Carolina. NC Gen.

8/1578328981359/The+Eligible+S+.pdf (highlighting eight common scenarios volunteers
encounter when registering voters).
5
Criminal prosecutions as a tactic for voter suppression is consistent with our nation's history.
The criminal legal system, which was built, honed and finnly established during the Jim Crow
era is rife with racism. Historically the system has been used as a tool to preserve racial order
and keep communities of color is an inferior socio-economic status. See Michael Wines, How
Charges of Voter Fraud Became a Political Strategy, The New York Times (Oct. 21, 2016),
available at https://www.nytimes.com/2016/l 0/22/us/how-charges-of-voter-fraud-became-apolitical-strategy.html.

 -8State §163-55(a)(2) (2017). Anyone who votes or attempts to vote while barred by the felony
disenfranchisement law is subject to prosecution for a felony. Id.
In contrast, many people who engage in unlawful election behavior under North Carolina
criminal laws are subject to prosecution at the misdemeanor level only, and, even if convicted,
are not statutorily barred from voting in future elections. For example, such crimes as voter
intimidation by a public official or interference with elections are classified as Class 2
misdemeanors. See N.C. Gen. Stat.§ 163-273.
Since the days of early felony disenfranchisement laws in North Carolina criminal
prosecutions for voting while on felony probation or parole have been used as a political tactic to
discourage and legally prevent communities of color from voting. 1 See, e.g. See, e.g. PIPPA
HOLLOWAY, A History of Stolen Citizenship, 12 Origins: Current Events in Hist. Perspective
9, -June 2019 at 13
Over the past few years, criminal prosecutions for alleged voter fraud have increased in
the US. Sam Cleveland, SLAPPing Down Discriminatory Voter Fraud Prosecutions, 103 MINN.
L. REV. (2019), available at https://minnesotalawreview.org/2019/02/11/slapping-downdiscriminatory-voter-fraud-prosecutions/. To date, there have been criminal indictments for
voting while felony supervision in at least 15 counties in North Carolina that stem from the 2016
general election. Bob Hall and Isela Gutierrez, The Deceit of Voter Fraud, Democracy North
Carolina (2017), available at https://democracync.org/wpcontent/uploads/2017/05/FraudReport.pdf. In 2016, then Alamance County District Attorney Pat
Nadolski prosecuted twelve individuals for voting on felony probation, including Mr. Holman
and Mr. Haith, to "maintain the integrity of the voting system." Jack Healy, Arrested,jailed and

charged with a Felony, For Voting, The News & Observer (Aug. 2, 2018), available at

 -9-

https://www.newsobserver.com/news/politics-government/article216009105 .html. While
prosecutors cite to voter fraud or attacks on the integrity of the electoral system when they
discuss prosecution, it is evident that most people who vote while on probation or parole do not
do so with intent to sway elections or to break the law. In 2018, when Gaston County district
attorney, Locke Bell, prosecuted twelve people who voted while disqualified in the 2016
election, he acknowledged that the individuals he was prosecuting were unaware they were not
able to vote. Adam Lawson, Gaston residents take pleas for illegal votes, Gaston Gazette (July
26, 2019), available at https://www.gastongazette.com/news/20190726/gaston-residents-takepleas-for-illegal-votes. He prosecuted them anyway, because "you're not allowed to vote
illegally." Dashiell Coleman, Prosecution possible in Gaston voting cases, Gaston Gazette (Aug.
24, 2018), available at https://www.gastongazette.com/news/20180824/prosecution-possible-ingaston-voting-cases. The accused, who were mostly African-American, and mostly Democrats, 6
overwhelmingly maintained that they did not know they were disqualified from voting when
they cast their vote. Since the statute that criminalizes voting while on felony probation has been
interpreted as a strict liability statute, a felony conviction is possible even when the voter did not
knowingly or intentionally violate the law.

The context of felony disenfranchisement prosecutions therefore renders them effective,
not to preserve the integrity of elections, but rather to prevent communities of color from voting.

6

According to the 2018 State Board of Elections Report, 68% of the people who voted while on
felony probation were African American and 66% were registered with the Democratic party.
North Carolina State Board of Elections, Post-Election Audit Report (2017), available at
https :// s3 .amazonaws. com/dl.ncsbe. gov/ sboe/PostElection %20Audi t%2 0Report_ 20 l 6%20General %20Election/Post-Election_Audit_Report.pdf.

 -10-

B. Felony Disenfranchisement Laws Suppress the African-American Vote Beyond
Those They Explicitly Disenfranchise.
The active enforcement of felony disenfranchisement laws-including criminal
prosecution-not only suppresses the vote of those directly targeted, but suppresses the vote of
fellow community members. In a national study, researchers concluded that "eligible African
American voters who live in states where a greater percentage of the voting age African
American population is barred from voting due to a felony conviction are less likely to vote."
Bridgett A. King and Laura Erickson, "Disenfranchising the Enfranchised: Exploring the
Relationship Between Felony Disenfranchisement and African American Voter Turnout,"
JOURNAL OF BLACK STUDIES, Vol. 47, No. 8, Nov. 2016, 799-821, Page 812, 815 (noting effect
holds true even when controlling for socioeconomic status). The profundity of the effect is such
that it reaches the behavior of voters with no felony record and who have never been justiceinvolved. See Aman McLeod, Ismail K. White, and Amelia R. Gavin, "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), available at
http://polisci.osu.edu/sites/polisci.osu.edu/files/11 _ Va._J._Soc._Pol'y_%26 _ L._66,_%5B 1%5D.
pdf ( concluding "the probability of voting declines at a greater rate for African Americans
compared to Caucasian Americans, when they live in states with restrictive criminal
disenfranchisement laws, even for those who have never been convicted of a crime") (emphasis
added); Melanie Bowers and Robert R. Preuhls, "Collateral Consequences of a Collateral
Penalty: The Negative Effect of Felon Disenfranchisement Laws on the Political Participation of
Nonfelons," SOCIAL SCIENCE QUARTERLY, Vol. 90, Issue 3 at 738 (Sept. 2009).

 -11CONCLUSION

Voter disenfranchisement laws in North Carolina explicitly suppress the vote of people
on probation or parole, who are disproportionately African-American. Enforcement of these
laws effectively broadens the suppression effect by instilling fear not only in the people
prosecuted beyond the time they become eligible to vote, but by significantly impacting other
co1nmunity members who are impacted by the enforcement of the laws as well. Not only does
the enforcement of felony disenfranchisement laws reduce Black communities' political clout by
removing voters from the rolls, therefore, but it further penalizes those same communities by
chilling all Black voters' participation in our democracy. 7 For these reasons, the North Carolina
Justice Center and Down Home NC urges the Court to rule in favor of the Plaintiff in this matter.

7

Pamela S. Karlan, "Convictions and Doubts: Retribution, Representation, and the Debate Over
Felon Disenfranchisement," Research Paper No. 75 at 17, Stanford Public Law and Legal Theory
Working Paper Series, available at https://papers.ssm.com/sol3/papers.cfrn?abstract_id=484543
(last visited 13 July 2020) (; see also King and Erickson at 8 I 5-16 ("[T]he removal of the right to
vote [] affects not only the political power of the individual but also the collective political power
of[] communities.").

 -12-

NORTH CAROLINA JUSTICE CENTER

~~attw.>

Jo~n
NC State Bar No. 54949
Laura Holland
NC State Bar No. 50781
Quisha Mallette
NC State Bar No. 55186
Emily Turner
NC State Bar No. 49578
Post Office Box 28068
Raleigh, NC 27611
Telephone: (919) 856-2164
Facsimile: (919) 856-2175
Email: jonathan@ncjustice.org
laura@ncjustice.org
quisha@ncjustice.org
emilyt@ncjustice.org

 EXHIBIT

j ___,_A..L--_
STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOIR COURT DIVISION
19-cv-15941

COMMUNITY SUCCESS INITIATIVE;
JUSTICE SERVED NC, INC.; WASH
AWAY UNEMPLOYMENT; NORTH
CAROLINA STATE CONFERENCE OF
THE NAACP; TIMOTHY LOCKLEAR;
DRAKARUS JONES; SUSAN MARION;
HENRY HARRISON; ASHLEY
CAHOON; SHAKITA NORMAN,
Plaintiffs,
V.

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

AFFIDAVIT OF ANTHONY HAITH

 BLACK, IN HIS OFFICIAL CAPACITY
AS MEMBER OF THE NORTH
CAROLINA STATE BOARD OF
ELECTIONS,
Defendants.

Anthony Haith, being duly sworn, declares the following:
1.

My name is Anthony Haith, I am over 18 years of age, and I am fully

competent to make this declaration.
2.

I live in Alamance county and have previously been charged with

voting while on probation for a felony.
3.

I live in Alamance county and work as a dishwasher at a local

restaurant. I have done some volunteer work with Down Home NC, which is a
community led organization focusing on raising the voices of working people and
fixing issues affecting our democracy, by attending meetings and handing out flyers.
4.

I was prosecuted in Alamance County for voter fraud in 2018, along

with 11 other people. We are sometimes known as the "The Alamance 12."
5.

When I voted in the 2016 election, I was still on probation for a

previous conviction. I did not know I was unable to vote, or I would not have voted.
When I was put on probation, I was informed of many things that I could not do or
have. However, no one ever told me that I could not vote.
6.

When I arrived at the polls, no one told me I could not vote. I was only

directed to a polling station to cast my ballot.

 7.

In 2018, the police came to my house looking for me with a warrant. I

was shocked, because I thought I was just exercising my rights when I voted.
8.

Throughout the prosecution and being charged, I was thinking of the

many people that had died and fought for us to vote. I had always thought that you
were cheating yourself and society if you did not vote.
9.

After talking with other Alamance 12 members, a lot of us are scared

to vote now. It was very difficult dealing with the process of getting prosecuted for
something that I did not even know was a crime, and dealing with the fallout
afterwards.
10.

I am still fearful of voting now. I do not want to go to jail for voting. I

vividly remember how the judge looked at me standing in the courtroom, as if I had
knowingly committed a grave wrong, and I will never forget it.
11.

I told them in court that I was unaware that what I was doing was

wrong, but there was no change in how the State treated me or looked at me.
12.

Being prosecuted has affected my job search. Many employers will not

give me an interview or take me seriously as a candidate because of the charge.
13.

Even though I was ultimately not convicted for felony voting, I am still

fearful of voting until this day.
14.

I honestly do not know if I will ever vote again given everything that

went on and how I was treated throughout the prosecution process.

 '2.., day of July, 2020.
This, the ,1
.U:::...

.,/J,vt

~ f - e•

Anthony Haith

ALAMANCE COUNTY
NORTH CAROLINA

,.d

03

. h e7'\~ day of July, 2020.
hist

0Ctbttir J1 ;;;/o-Z;/

Notary Public
_ _
My Commission Exp1res.

 EXHIBIT

i _ . .B~-.
STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
19-cv-15941

COMMUNITY SUCCESS INITIATIVE;
JUSTICE SERVED NC, INC.; WASH
AWAY UNEMPLOYMENT; NORTH
CAROLINA STATE CONFERENCE OF
THE NAACP; TIMOTHY LOCKLEAR;
DRAKARUS JONES; SUSAN MARION;
HENRY HARRISON; ASHLEY
CAHOON; SHAKITA NORMAN,
Plaintiffs,
V.

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

AFFIDAVIT OF DEBORAH SMITH

 CAROLINA STATE BOARD OF
ELECTIONS,
Defendants.

Deborah Smith, being duly sworn, declares the following:
1.

My name is Deborah Smith, I am over 18 years of age, and I am fully

competent to make this Affidavit.
2.

I live in Alamance county and I volunteer with the local chapter of the

National Association for the Advancement of Colored People (NAACP) on different
issues affecting the local community.
3.

Through the NAACP's Political Action Committee, I work on voter

registration in and around the community. I have been involved with these types of
efforts for about 4-5 years now.
4.

In my volunteer role of encouraging people to register to vote, and

assisting them with the registration process, I have often been hampered in my
efforts when I encounter individuals with criminal records who have shared fears
about voting in fear of retaliation such as prosecution or even jail time. Many of
these people were eligible to vote at the time I was trying to assist them, however
they declined to register based on a risk of receiving a new charge.
5.

I worked on voter registration efforts in 2018. 12 voters were

prosecuted in Alamance county during that year ("The Alamance 12"), and the
prosecution was widely publicized. This made my job even more difficult. Many
people with criminal records cited this as a new source of fear regarding voting.

 They likened themselves to the people charged with felonies for voting, and feared
the same consequences if they were to try to vote.
6.

In my volunteer efforts, I have also encountered people who are

interested in voting, but cannot because they are still on probation or serving a
sentence.
7.

One of the members of the Alamance 12 had moved away from the

Alamance county area right before he was charged. After moving to Wilmington
with his family for a new job opportunity, he was charged with a felony for voting in
the 2016 election. He subsequently lost his job.
8.

For example, shortly after the Alamance 12 case received publicity, I

was volunteering to register voters outside of the public library in Graham, North
Carolina. I tried to persuade a man in his 60s to register to vote. He had never
registered to vote before, stating that he was not eligible based on

a convicted of a

juvenile offense that occurred when he was 16. The conviction was only for a
misdemeanor, however he still thought that he did not have the right to vote. The
prosecution of The Alamance 12 only further confirmed his fears of voting~

s·e@:r_:ld: ¥J:6t persuade hinr to xe~istor ta vote
9.

£> S

In my work, I try to convince people to register to vote so that they are

able to make a difference or change in their community. My job is made that much
harder when I am working with people who are disenchanted with the system of
voting and representation.,

 10.

When I first started voting, it made me feel like an important part of

society and like I was effecting change. I think that it gives you a chance to express
grievances and try to make things different through your efforts, regardless of the
outcome.
This, then day of July, 2020.

Deborah Smith

ALAMANCE COUNTY
NORTH CAROLINA

i-J.
,py,-v,.,,_,re me, this the~ day of July, 2020.

~aryPublic
My Commission Expires:

OM~ f:/3 26l/
1