N.C. A. Philip Randolph Institute v. N.C. State Bd. of Elections

NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE and ACTION NC, Plaintiffs, v. THE NORTH CAROLINA STATE BOARD OF ELECTIONS; DAMON CIRCOSTA,in his official capacity as CHAIR OF THE STATE BOARD OF ELECTIONS; STELLA ANDERSON,in her official capacity as SECRETARY OF THE STATE BOARD OF ELECTIONS; JEFF CARMON, III,in his official capacity as MEMBER OF THE STATE BOARD OF ELECTIONS; KAREN BRINSON BELL,in her official capacity as EXECUTIVE DIRECTOR OF THE STATE BOARD OF ELECTIONS;and JOSH STEIN, in his official capacity as ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA, Defendants.

1:20CV876

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

November 4, 2020

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs North Carolina A. Phillip Randolph Institute ("NC APRI") and Action NC (collectively "Plaintiffs") Motion for Preliminary injunction (Docket Entry 2)¹ pursuant to Federal Rule of Civil Procedure 65(a)(1). Defendantsthe North Carolina State Board of Elections ("NCSBE"), Damon Circosta, Stella Anderson, Jeff Carmon, III, Karen Brinson Bell (collectively "NCSBE Defendants"), and North Carolina Attorney General Josh Stein (collectively "Defendants") have filed a response to the motion. (Docket Entry 16.) Plaintiffs thereafter filed a reply. (Docket Entry 20.) The Court ordered a hearing on the matter on October 22, 2020 regarding Plaintiffs' Motion for Preliminary Injunction. (Minute Entry dated 10/22/2020.) For the following reasons, the Court recommends that the motion be denied.

I. BACKGROUND

On September 24, 2020, Plaintiffs commenced this action against Defendants alleging that N.C. Gen. Stat. § 163-275(5) (sometimes referred herein as "the challenged statute") is unconstitutional under two theories: (1) the statute is void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment; and (2) the statute constitutes intentional racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. (See generally, Complaint, Docket Entry 1.) Plaintiffs simultaneously filed the instant Motion for Preliminary Injunction. (Docket Entry 2.)

A. Parties

Plaintiffs are nonprofit, nonpartisan organizations whose missions are, in part, to increase voter participation among Black communities in North Carolina. (Compl. ¶¶ 15-16.) NCSBE Defendants administer and investigate violations of North Carolina election laws. (Id. ¶¶ 17-21.) Defendant Josh Stein, the North Carolina Attorney General ("AG"), is statutorily authorized to receive reports of "violations of the election laws" from the NCSBE "for further investigation and prosecution." (Id. ¶ 22 (citing N.C. Gen. Stat. § 163-22(d))). The AG is alsostatutorily required "[t]o consult with and advise" the State's District Attorneys "when requested by them, in all matters pertaining to the duties of their office." (Id. ¶ 22 (citing N.C. Gen. Stat. § 114-2(4))). Moreover, the AG may authorize attorneys in the Special Prosecution Division of the Office of the Attorney General "to prosecute or assist in the prosecution of criminal cases when requested to do so by a district attorney." (Id. ¶ 22 (citing N.C. Gen. Stat. § 114-11.6.))

B. Construction of N.C. Gen. Stat. § 163-275(5)

Under the North Carolina Constitution, a person convicted of a felony cannot vote "unless that person shall be first restored to the rights of citizenship in the manner prescribed bylaw." N.C. Const. art. VI, § 2(3). This provision is enforced through N.C. Gen. Stat. § 163-275(5), which makes it a Class I felony "[f]or any person convicted of a crime which excludes the person from the right of suffrage, to vote at any primary or election without having been restored to the right of citizenship in due course and by the method provided by law." N.C. Gen. Stat. § 163-275(5). A separate statute describes what constitutes a restoration of the rights of citizenship. See N.C. Gen. Stat. § 13-1. This statute ("Citizenship Restoration Law") restores the rights of citizenship automatically upon the occurrence of any of the following conditions:

(1) The unconditional discharge of an inmate, of a probationer, or of a parolee by the agency of the State having jurisdiction of that person or of a defendant under a suspended sentence by the court. . . .

(4) With regard to any person convicted of a crime against the United States, the unconditional discharge of such person by the agency of the United States having jurisdiction of such person . . . .

(5) With regard to any person convicted of a crime in another state, the unconditional discharge of such person by the agency of that state having jurisdiction of such person . . . .

Id. (emphases added).

The term "unconditional discharge" is not defined in this statute nor is it defined in any other North Carolina statute. In a recent North Carolina state court action challenging the Citizenship Restoration Law, the Wake County Superior Court interpreted the Citizenship Restoration Law to "preclude[ ] the restoration of citizenship rights until the completion of the sentence, including any period of parole, post-release supervision or probation." (Summary Judgment Order, Comty. Success Initiative v. Moore, No. 19-CVS-15941 (N.C. Super. Ct. Sept. 4, 2020), Ex. 13 to Pls.' Br., Docket Entry 3-13 at 6.)

C. Historical Background of N.C. Gen. § Stat. 163-275(5)

Plaintiffs' Complaint avers that North Carolina's history of racism, including the large-scale disenfranchisement of Black residents, is undisputed. Between 1875 and 1877, the North Carolina legislature amended the North Carolina Constitution and enacted the first iteration of N.C. Gen. Stat. § 163-275(5) with the goal of disproportionally impacting Black individuals. (Compl. ¶¶ 27-28; Centennial Article, Ex. 15 to Pls.' Br., Docket Entry 3-15.) The 1877 version of N.C. Gen. Stat. § 163-275(5) made it illegal for a released felon to vote without having been legally restored to the rights of citizenship. (Ex. 17 to Pls.' Br., Docket Entry 3-17.) In 1899, the State legislature reenacted the 1877 version of the challenged statute almost verbatim, (1899 Session Law Provisions at Ch. 507 § 72, Ex. 19 to Pls.' Br., Docket Entry 3-19), with the goal of "rescu[ing] the white people . . . from the curse of negro domination."(Compl. ¶¶ 32, 34-35; 1898 Democratic Party Handbook, Ex. 18 to Pls.' Br., Docket Entry 3-18 at 20.)

In 1931, the State legislature again reenacted the challenged statute, retaining strict felony-level criminal liability for voting after a felony conviction before their citizenship restoration. (Compl. ¶ 38; 1931 Session Law Provisions at Ch. 348 § 10(5), Ex. 21, Docket Entry 3-21.) Since 1931, the State legislature has essentially changed just one word in the challenged statute,² leaving the remainder of it unchanged. (Compl. ¶ 41.) Today, as Plaintiffs claim, the challenged statute is virtually the only election crime punishable as a Class I felony that does not require any fraudulent intent. (Id. ¶ 43; see, e.g., N.C. Gen. Stat. §§ 163-275(1, 3-4, 7-9).)

D. Prosecutions Stemming from the 2016 Election Audit

Following the 2016 presidential election, sixteen individuals were prosecuted under N.C. Gen. Stat. § 163-275(5). (Compl. ¶¶ 4, 47-50, 53.) Thirteen of those prosecuted are Black. (Id. ¶ 4.) The NCSBE's audit of the election determined that 441 individuals with felony convictions may have voted before their sentences were completed. (Id. ¶ 47; Post-Election Audit Report, Ex. 2 to Compl., Docket Entry 1-2 at 5.) Of that total, 68% were Black. (Compl. ¶ 47; Post-Election Audit Report Racial Breakdown, Ex. 4 to Compl., DocketEntry 1-4 at 2.) As required by N.C. Gen. Stat. § 163-22(d), the NCSBE referred the cases to the State district attorneys ("DAs"). (Compl. ¶ 48; August 12, 2018 NCSBE Letter, Ex. 3 to Compl., Docket Entry 1-3.) A majority of the district attorneys chose not to bring charges due to a lack of evidence that felon individuals were ever notified of their ineligibility to vote. (Compl. ¶ 49; August 9, 2017 NCSBE Letter, Ex. 5 to Compl., Docket Entry 1-5 at 1-2.) However, in 2018, the district attorney of Alamance County charged twelve individuals with violating N.C. Gen. Stat. § 163-275(5). (Compl. ¶ 50.) Nine of the twelve individuals charged were Black. (Id.) In 2019, the district attorney of Hoke County charged four individuals, all Black, with violating the same statute. (Id. ¶ 53.) Most of the individuals charged had no intent to violate the statute, and were in fact, unaware of it. (Id. ¶¶ 50-51, 54.) Plaintiffs further allege that some of the individuals charged with a violation of the challenged statute expressed "a deep-seated fear of voting in the future." (Id. ¶¶ 56-59.)

E. The Wake County Superior Court Preliminary Injunction

A recent ruling in the Wake County Superior Court action challenging the Citizenship Restoration Law temporarily enjoined the NCSBE and other state defendants "from preventing a person convicted of a felony from registering to vote and exercising their right to vote if that person's only remaining barrier" to the completion of their sentence "is the payment of a monetary amount." (Preliminary Injunction Order, Moore, Ex. 13 to Pls.' Br., Docket Entry 3-14 at 11.)

However, the Superior Court's preliminary injunction did not cover "persons convicted of a felony who are no longer incarcerated," but are subject to probation, parole, or post-release supervision. (Id. at 10.) Despite this injunction, however, Plaintiffs allege that"individuals with only outstanding financial obligations in connection with a felony conviction might and indeed will opt not to vote because of the fear of criminal prosecution under [N.C. Gen. Stat. § 163-275(5)]." (Compl. ¶ 5.)

F. Plaintiffs' Claims

In the instant case, Plaintiffs assert to claims: (1) the challenged statute is void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment; and...