NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE v. THE NORTH CAROLINA STATE BOARD OF ELECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINA A. PHILIP )

RANDOLPH INSTITUTE and )

ACTION NC, )

)

Plaintiff, )

)

v. ) 1:20CV876

)

THE NORTH CAROLINA STATE )

BOARD OF ELECTIONS; et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs’, North Carolina A. Philip A. Randolph

Institute (“NC APRI”) and Action NC (collectively “Plaintiffs”), Motion for Summary

Judgment pursuant to Federal Rule of Civil Procedure 56(a) and Local Rule 56.1. (Docket

Entry 85.) The Motion seeks a judgment on all claims asserted in the Amended Complaint

that North Carolina General Statute § 163-275(5) (sometimes referred to herein as “the

challenged statute” or the “old law”),1 which imposes criminal penalties on those who vote

while on parole, probation, or post-release supervisions for a felony conviction, violates the

Equal Protection and Due Process Clauses of the Fourteenth Amendment. (See Docket Entry

85 at 1.)2 Defendants, the North Carolina State Board of Elections (“NCSBE”), Damon

Circosta, Stella Anderson, Jeff Carmon, III, Karen Brinson Bell, Stacy “Four” Eggers IV,

1 Plaintiffs’ challenge is specifically to subsection 5 of N.C. Gen. Stat. § 163-275. Thus,

references herein to the “challenged statute” or the “old law” refer only to that subsection.

2 All citations in this recommendation to documents filed with the Court refer to the page

number located at the bottom right-hand corner of the documents as they appear on CM/ECF.

Tommy Tucker (collectively “NCSBE Defendants”), and North Carolina District Attorneys

(“DA Defendants”) (collectively “Defendants”), filed a Response. (Docket Entry 94.)

Plaintiffs thereafter filed a Reply. (Docket Entry 96.) On October 18, 2023, the NCSBE

Defendants filed a notice of legislative action, which stated that on October 10, 2023, the

North Carolina General Assembly enacted Senate Bill 747 (sometimes referred to as “the new

law”), which, among other things, amended the challenged statute to include a scienter

requirement. (See Docket Entry 103; see also Docket Entry 103-1.) On October 27, 2023, the

Court ordered the parties to file limited supplemental briefing to further assist the Court with

their positions and arguments in their Motion for Summary Judgment in light of Senate Bill

747, particularly Section 38, due to the possible implications for standing. (See Text Order

dated 10/27/2023.) The Court also ordered oral arguments, which were held on November

14, 2023. (Minute Entry dated 11/14/2023.) For the following reasons, the undersigned

recommends that the Motion for Summary Judgment be denied as moot, and the action be

dismissed for lack of subject matter jurisdiction because Plaintiffs lack standing to pursue their

claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2020, Plaintiffs commenced this action against the NCSBE

Defendants,3 along with North Carolina Attorney General Josh Stein (“AG”), alleging that

3 As later discussed, NCSBE members Stacy “Four” Eggers IV and Tommy Tucker were

added later in this action.

N.C. Gen. Stat. § 163-275(5) is unconstitutional.4 (See Docket Entry 1.) Plaintiffs also filed a

Motion for Preliminary Injunction on the same day. (Docket Entry 2.)

In October 2020, the NCSBE Defendants and AG filed a Motion to Dismiss for lack

of jurisdiction and failure to state a claim, alleging that (1) Defendants were entitled to

Eleventh Amendment Immunity, (2) the NCSBE Defendants and AG were improper parties,

and (3) Plaintiffs lacked standing because (a) they had not suffered an injury-in-fact that (b)

was traceable to Defendants and (c) had not proposed a remedy to address the alleged injuries.

(See Docket Entry 19 at 7-18.) They further argued that Plaintiffs’ claims should be dismissed

because Defendants had not taken any action to deprive Plaintiffs of their rights, and the

statute was not constitutionally vague. (See id. at 19-23.)

In November 2020, the undersigned recommended Plaintiffs’ Motion for Preliminary

Injunction be denied and further recommended that the AG be dismissed from the action.

(See Docket Entry 24.) The undersigned concluded that Plaintiffs had satisfied all three

elements to establish organizational injury as to the NCSBE Defendants. (See id. at 8-14.)

First, Plaintiffs had been “forced to divert resources to address fears surrounding the

enforcement of N.C. Gen. Stat. § 163-275(5)” thus satisfying the first injury-in-fact element

for standing. (Id. at 10.) Second, there was a clear causal connection between the injury and

the NCSBE Defendants’ actions, which satisfied the second standing element. (Id. at 11-12.)

However, the Court found that there was no causal connection between the AG and the

4 N.C. Gen Stat § 163-275(5) (amended by 2023 North Carolina Laws S.L. 2023-140 (S.B.

747)) made it a Class I felony “for 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.”

“prosecutions [Plaintiffs] assert caused their injuries,” and thus all claims against the AG were

dismissed. (Id. at 12-14, 20.) Third, the undersigned found that Plaintiffs had sufficiently

shown they would tangibly benefit were the Court to grant their requested relief, so the third

redressability element was satisfied for purposes of standing against the NCSBE Defendants.

(Id. at 14-15.) Lastly, the Court held that the NCSBE Defendants were not immune under the

Eleventh Amendment because of the Ex parte Young exception for ongoing violations. (See

id. at 15-17.) The District Judge subsequently adopted the Recommendation over Plaintiffs’

objections. (See Docket Entry 34.)

Prior to the Court’s adoption of the Recommendation, Plaintiffs filed a Motion to

Amend the Complaint. (Docket Entry 29.) The Motion sought to name additional

defendants, including the DA Defendants and additional NCSBE members,5 and to make

other changes, including adding more allegations concerning Defendants’ role in the

enforcement of the challenged statute. (See id. at 4.) On February 8, 2021, by stipulation of

the parties in the action at said time, the previously filed motion to dismiss was withdrawn and

the Amended Complaint was filed. (See Stipulation, Docket Entry 35; Am. Compl., Docket

Entry 36.)6

After the Amended Complaint was filed, summonses were issued for the newly added

Defendants. (Docket Entry 37.) On March 9, 2021, the NCSBE Defendants filed an answer

5 The two additional members of the NCSBE were Stacy “Four” Eggers IV and Tommy

Tucker. (See Am. Compl. ¶¶ 20-21; see also Docket Entry 37 at 17, 37.)

6 Plaintiffs filed a notice explaining that the exhibits to the original Complaint were

inadvertently excluded when the Amended Complaint was filed. (See Docket Entry 50.) As a result,

each of the exhibits cited in the Amended Complaint refers to the correspondingly numbered exhibit

to the original Complaint.

to the Amended Complaint. (Docket Entry 39.) On April 19, 2021, the DA Defendants filed

a motion to dismiss in response to the Amended Complaint. (Docket Entry 46.) In addition,

Phillip E. Berger, President Pro Tempore of the North Carolina Senate, and Timothy K.

Moore, Speaker of the North Carolina House of Representatives, filed a motion to intervene.

(Docket Entry 44.) The District Judge adopted the undersigned’s recommendation that the

Proposed Intervenors’ motion to intervene and the DA’s motion to dismiss be denied. (See

Docket Entries 60, 66.) The DA Defendants filed an answer to the Amended Complaint and

discovery commenced. (Docket Entries 75-77.) Plaintiffs then filed the pending Motion for

Summary Judgment, and other filings including the notice of legislative action by the NCSBE

Defendants, followed.

a. Amended Complaint

According to the Amended Compliant, Plaintiffs are nonprofit, nonpartisan

organizations whose missions are, in part, to increase voter participation among Black and

low-income communities in North Carolina. (Am. Compl. ¶¶ 14-15.) The NCSBE

Defendants administer and investigate violations of North Carolina election laws. (Id. ¶¶ 16-

22.) The DA Defendants are responsible for prosecuting “all criminal actions” and are also

specifically empowered to “investigate . . . and prosecute any violations” of certain voting-

related criminal statutes. (Id. ¶ 23 (quoting N.C. Gen. Stat. §§ 7A-61, 163-278).) The Amended

Complaint further alleges that at least two of the DA Defendants have brought criminal

charges pursuant to the challenged statute against individuals “who mistakenly voted in the

2016 election while still on probation or parole for a felony conviction.” (Id.)

The challenged statute made it a Class I felony, regardless of intent, “[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.” (See id. ¶ 42 (quoting N.C. Gen. Stat. § 163-275(5)

(alterations omitted)).) Violation of this statute while on parole, probation, or post-release

supervision for a felony conviction may result in imprisonment for up to two years. (Id. ¶ 46

(citing N.C. Gen. Stat. § 15A-1340.17 and Deposition of Karen Brinson Bell at 127:4-9,

Docket Entry 1-1 at 34).)

Plaintiffs allege that the challenged statute was originally enacted with racially

discriminatory intent, its key features have never been substantively amended, and it continues

to disproportionately impact Black North Carolinians. (See Am. Compl. ¶¶ 24-60.) As such,

Plaintiffs claim that it violates the Equal Protection Clause of the Fourteenth Amendment.

(Id. ¶¶ 105-113.) In addition, the Amended Complaint alleges that the challenged statute fails

to provide fair notice of criminal liability by failing to define which crimes “exclude[ ] the

person from the right of suffrage,” and not providing information on restoration of citizenship

rights. (Id. ¶¶ 61-78.) Moreover, Plaintiffs allege that there is confusion caused by North

Carolina’s voting material which is “exacerbated by the State’s inadequate procedures” for

providing notice to felons who are ineligible to vote. (Id. ¶ 68.) Plaintiffs also allege that the

vagueness of the law, along with recent prosecutions, “have caused eligible individuals with

criminal convictions to refrain from voting, for fear of unintentionally violating the law and

triggering criminal charges.” (Id. ¶ 79 (emphasis in original).) As a result, Plaintiffs claim that

the challenged statute is void for vagueness in violation of the Due Process Clause of the

Fourteenth Amendment. (Id. ¶¶ 96-104.)

A central tenet of the Plaintiffs’ argument in the Amended Complaint is that the

challenged statute lacks a scienter requirement, making it “an outlier in North Carolina’s

election laws.” (Id. ¶¶ 44-45.) They allege that “[v]irtually every other election crime

punishable as a Class I felony in North Carolina requires intent . . . . But ‘felon voting is a

strictly liability offense.’” (Id. ¶ 3.) The resulting risk of “inadvertent violations” causes them

to “divert time, money, and resources . . . to educate volunteers on the potential risks of

registering an individual with a felony conviction, and to caution community members of the

potential risks of voting after a felony conviction before sentence completion.” (Id. ¶ 14.)

Plaintiffs assert that violations of the law “are almost always unintentional and

‘education and understanding of the state law appear to be the primary problem.’” (Id. ¶ 3

(quoting the Post-Election Audit Report: General Election 2016, North Carolina State Board of

Elections (Apr. 21, 2017) (Exhibit 2), at 3, Docket Entry 1-2.).) Ultimately, Plaintiffs contend

that the challenged statute impedes their efforts to carry out their missions. (See id. ¶¶ 93-95.)

They allege that the “risk of criminal prosecution . . . has rendered it practically impossible for

Plaintiffs to continue their efforts to engage in voter registration and get-out-the-vote activities

with respect to individuals with felony convictions.” (Id. ¶ 95.) “Moreover, Plaintiffs are not

able to assist many individuals with felony convictions with registering to vote because of these

risks.” (Id.) Thus, they seek a declaration that N.C. Gen. Stat. § 163-275(5) is unconstitutional

and to permanently enjoin Defendants from enforcement of said statute. (Id. ¶ 7.)

II. DISCUSSION

a. Plaintiffs’ Motion for Summary Judgment

In June 2023, Plaintiffs filed a Motion for Summary Judgment on all claims in their

Amended Complaint and for declaratory and permanent injunctive relief that would enjoin

Defendants from enforcing the challenged statute. (Docket Entry 85.) First, Plaintiffs argue

that the statute violates the Equal Protection Clause because it was enacted with discriminatory

intent in 1877, and none of the minor alterations made to the law in 1899, 1931, 1968, or 1971

cleansed the law of the discriminatory taint. (See Docket Entry 86 at 8-12, 22-24.) Specifically,

they note that the 1877 law did not require intent, which “set [it] apart from other offenses

adopted in the 1877 law” and all later reiterations were also devoid of a scienter requirement.

(Id. at 10, 12.) Plaintiffs contend that this lack of a “scienter or mens rea requirement” is one

of the “key features” that has allowed the taint of discriminatory intent to follow the law

through its various reiterations. (Id. at 23-24.) They also argue that the law continues to

disproportionally impacts Black voters. (Id. at 25.)

Next, Plaintiffs assert that the challenged statute is vague, in violation of the Due

Process Clause, because it contains undefined terms and fails to provide sufficient notice of

what criminal activity is prohibited. (Id. at 26-27.) Specifically, they argue the challenged

statute “criminalizes voting before an individual has been restored to the rights of citizenship

but does not provide any guidance on when or how an individual regains those rights.” (Id. at

28.) Instead, they contend that the only guidance offered is that citizenship is restored upon

“unconditional discharge,” but fails to define what is meant by the term. (Id.)

Additionally, Plaintiffs claim that the challenged statute also violates the Due Process

Clause because it “fails to provide clear standards to prevent arbitrary enforcement.” (Id. at

29.) Plaintiffs note that some District Attorneys read an implicit scienter requirement into

the law, while others do not. The NCSBE has also refused to refer cases for prosecution in

some instances but not others. (Id at 30.) Plaintiffs claim these discrepancies have “generated

starkly disparate outcomes.” (Id.) Lastly, Plaintiffs reiterate that those who have faced charges

have been disproportionately Black. (Id. at 31.)

Defendants filed a joint response to Plaintiffs’ Motion. (Docket Entry 94.) Defendants

do not dispute that the challenged statute was originally adopted with discriminatory intent in

1877. (See id. at 2.) However, they claim that the adoption of a new state Constitution in 1971

cleansed the statute of its discriminatory taint. (See id. at 4.) They contend that in order to

adopt the new constitution, the “General Assembly and the people of North Carolina

approved new language defining the scope of person subject to exclusion from the right of

suffrage,” which worked to broaden the scope of the challenged statute to include felonies

from out of state and also federal felonies. (Id. at 4-6.) This revision, they claim, substantively

altered the challenged statute. (Id.) Thus, since the challenged statute has been purged of its

discriminatory taint, they contend that there is no equal protection violation. (See id. at 10.)

They further contend that Plaintiffs are unable to produce any evidence that

demonstrates the 1971 Constitution was adopted with racial intent. (See id. at 13.) Defendants

claim that Plaintiffs cannot show that racial discrimination was a substantial or motivating

factor for the adoption of the 1971 Constitution, which is necessary to prove discriminatory

intent. (See id. at 9.) Instead, Defendants assert that a version of a felony disenfranchisement

law exists in almost every state, and thus there is an “obvious alternative explanation” that

supports “the propriety of the 1971 Constitution’s felony-based disenfranchisement provision

and the enforcement thereof by a criminal statute.” (Id. at 12 (quoting Hayden v. Paterson, 594

F.3d 150, 167 (2d Cir. 2010).)

Next, they argue that summary judgment must be denied because Plaintiffs’ vagueness

argument also fails. (See id. at 13.) First, they argue that a plain reading of the statute provides

“ample notice” of when an individual’s rights have been restored, noting that Plaintiff’s

argument that a prospective voter would be required to reference two statutes does not equate

to a due process violation. (Id. at 14.) They further claim that the restoration process provides

sufficient notice because both “unconditional” and “discharge” have plain meanings. (Id at

15.) Specifically, Defendants contend that a plain reading of “unconditional discharge” clearly

means that a felon has been released with no conditions and discharged “by the State agency

or court with jurisdiction over them before their rights are restored.” (See id. at 15-16.) They

further argue that former felons are already provided sufficient notice that their rights have

been restored because state law dictates that whichever agency or court had jurisdiction over

the former felon “must ‘immediately issue a certificate or order in duplicate evidencing the

offender’s unconditional discharge and specifying the restoration of his rights of citizenship.’”

(Id. at 17 (citing N.C.G. S. § 13-2(a).)

Lastly, they argue that the inconsistent enforcement by the state’s District Attorneys

does not equate to arbitrary enforcement. (Id. at 19-20.) Rather, they contend that the broad

discretion afforded to prosecutors is an integral part of the American justice system. (Id. at

22.) They also note that there is no constitutional requirement for “strict uniformity in the

execution of the law.” (Id. at 23.)

b. Senate Bill 747

Importantly, after both parties filed respective briefs in support of and against summary

judgment, the NCSBE Defendants filed the notice of the North Carolina legislature’s

enactment of Senate Bill 747, which amended the challenged statute so that it now includes a

scienter requirement. (See Docket Entry 103; see also NC LEGIS 2023-140 (2023), 2023 North

Carolina Laws S.L. 2023-140 (S.B. 747).) Shortly thereafter, this matter was set for a hearing.

(Text Order dated 10/27/2023.) In addition to the arguments presented in their summary

judgment briefs, the Court requested that both parties file supplemental briefs prior to the oral

arguments “to further assist the Court with Plaintiffs’ position of their claims and arguments

in their summary judgment motion in light of Senate Bill 747, particularly Section 38.” (See

id.) Both parties filed their supplemental briefs, and oral arguments were held on November

14, 2023. (See Docket Entries 105, 106; see Minute Entry dated 11/14/2023.) This matter was

taken under advisement.

In their supplemental brief, Plaintiffs argue that because Section 38 of Senate Bill 747

does not go into effect until 1/1/24 and is not retroactive, the challenged statute will continue

to violate the Constitution. (See Docket Entry 105 at 2.) Next, they contend that the case is

not moot because the standard for satisfying mootness is high. (See id. at 3.) They cite United

States v. Springer, 715 F.3d 535 (4th Cir. 2013), in which the Fourth Circuit held that “[a] case

becomes moot only when it is impossible for a court to grant any effectual relief whatever to

the prevailing party.” (Id. at 540; Docket Entry 105 at 3.) Therefore, Plaintiffs argue that

because “North Carolina voters will continue to face the threat of prosecution under the Law

in its current form even after [Senate Bill] 747 becomes effective,” they retain a concrete

interest in the matter. (Id. at 3-4.)

Lastly, Plaintiffs argue that the passage of Senate Bill 747 “has no impact on [their]

standing, which is determined solely based on the facts at the time the complaint was filed.”

(Id. at 6 (citing Wild Va. V. Council on Env’t Quality, 56 F.4th 281, 293 (4th Cir. 2022).) In

conclusion, they contend that because the Court “can still prevent ongoing and future harm

by permanently enjoining an indisputably racist law,” the Court should grant their Motion for

Summary Judgment. (Id. at 6.)

In Defendants’ supplemental brief, they argue that Plaintiffs no longer retain a concrete

interest in the litigation, and the case should be dismissed as moot. (See Docket Entry 106 at

2-3.) Defendants argue that Plaintiffs’ interest in the litigation was rooted in their need “to

divert time, money, and resources to provide education” to prospective voters in future

elections regarding the risk of criminal prosecution because of the challenged statute. (See id.

at 2-3.) With the addition of a scienter requirement, “Plaintiffs can no longer claim . . . [they]

must divert resources which would otherwise be used for other voter-education purposes”

because “there is no longer ‘a risk of criminal prosecution of prospective voters.’” (Id. at 2

(quoting Am. Compl. ¶ 95).) They further state that “[f]or the Court to accept Plaintiffs’

reasoning, it would also have to accept the illogical proposition that Plaintiffs will retain a

concrete interest in the action in perpetuity, even though their specific interest in education

prospective voters will no longer be impeded by this law.” (Id. at 3.) Lastly, they argue that

because Plaintiffs brought the action on behalf on themselves and not a prospective voter, the

Court can no longer grant any effectual relief and thus, the case should be dismissed as moot.

(Id. at 4-5.)

c. Standard of Review

Plaintiffs request that the Court grant summary judgment in their favor. (See Docket

Entry 85.) Summary judgment is appropriate when there exists no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Zahodnick v. Int'l Bus. Machs. Corp., 135 F. 3d 911, 913 (4th Cir. 1997). The party seeking

summary judgment bears the initial burden of coming forward and demonstrating the absence

of a genuine issue of material fact. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th

Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met

its burden, the non-moving party must then affirmatively demonstrate that there is a genuine

issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring

the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817

(4th Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative

evidence or by demonstrating that the non-moving party's evidence is insufficient to establish

his claim. Celotex, 477 U.S. at 331 (Brennan, dissenting).

When making a summary judgment determination, the Court must view the evidence,

and all justifiable inferences from the evidence, in the light most favorable to the non-moving

party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191,196 (4th Cir.

1997). However, the party opposing summary judgment may not rest on mere allegations or

denials, and the court need not consider “unsupported assertions” or “self-serving opinions

without objective corroboration.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th

Cir. 1996); see also Anderson, 477 U.S. at 248-49; see Rogers v. N. Carolina Dep't of Pub. Safety, No.

1:19CV417, 2022 WL 3283990, at *3 (M.D.N.C. Aug. 11, 2022), report and recommendation

adopted, No. 1:19CV417, 2022 WL 4472958 (M.D.N.C. Sept. 26, 2022).

d. Standing

Defendants claim that the passage of Senate Bill 747 has eliminated any concrete

interest held by Plaintiffs in the action, and thus they do not have standing to bring a claim,

so the case should be dismissed as moot. (See Docket Entry 106 at 1.) Federal district courts

exercise limited jurisdiction in that the courts “possess only the jurisdiction authorized . . . by

the United States Constitution and by federal statute.” United States ex rel. Vuyyuru v. Jadhav,

555 F.3d 337, 347 (4th Cir. 2009) (citation omitted). Article III of the United States

Constitution outlines the federal court’s jurisdictional limits. See U.S. Const., art. III, § 2; Susan

B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 & n.5 (2014). Relief is only appropriate when

there is an actual case or controversy under Article III. See Volvo Const. Equip. N. Am,. Inc. v.

CLM Equip. Co., Inc. 386 F.3d 581, 592 (4th Cir. 2004). For any case or controversy to be

justiciable in federal court, a plaintiff must allege “such a personal stake in the outcome of the

controversy as to warrant his invocation of federal court jurisdiction and to justify exercise of

the court’s remedial powers on his behalf.” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458

(4th Cir. 2005) (quoting Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 789 (4th Cir.

2004)). Because standing is a threshold jurisdictional requirement, it may be attacked at any

time, including summary judgment.7 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

There are three elements required to establish standing.

First, the plaintiff must have suffered an ‘injury in fact’—an invasion

of a legally protected interest which is (a) concrete and particularized,

and (b) ‘actual or imminent, not conjectural or hypothetical.’”

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)) (internal citations

omitted). “A ‘concrete’ injury must be ‘de facto’; that is, it must

actually exist.” The adjective “concrete” in this context, “convey[s]

the usual meaning of the term—‘real,’ and not ‘abstract.’” Spokeo, Inc.

v. Robins, 578 U.S. 330, 340 (2016) (internal citation omitted). Second,

the injury must be fairly traceable to the defendant's actions, rather

than the result of independent action of a third party not before the

court. Lujan[], 504 U.S. [at 560]. “Third, it must be ‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be ‘redressed by

a favorable decision.’”

Singh v. Univ. of N. Carolina at Chapel Hill, No. 1:22-CV-294, 2023 WL 2329857, at *8 (M.D.N.C.

Mar. 2, 2023), appeal dismissed sub nom. Singh v. Univ. of N. Carolina Health Care Sys., No. 23-1350,

2023 WL 6374188 (4th Cir. June 20, 2023); see also Libertarian Party of Va. v. Judd, 718 F.3d 308,

313 (4th Cir. 2013) (citing Lujan, 504 U.S. at 560-61; see also Bethel, No. 1:20CV330, 2022 WL

4585809, at *3). Every element must be proven “in the same way as any other matter on

which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation.” Lujan, 504 U.S. at 561; see also Wikimedia

Found. v. Nat'l Sec. Agency/Cent. Sec. Serv., 427 F. Supp. 3d 582, 600 (D. Md. 2019), aff'd but

7 In their supplemental brief, Plaintiffs allege that standing is “determined solely based on the

facts at the time the complaint was filed.” (See Docket Entry 105 at 6.) This is a mischaracterization

of the law. If superseding legislative action or other events render it impossible for the Court to grant

relief, it is fully within the jurisdiction of the Court to dismiss Plaintiffs’ claims as moot. See Brusznicki

v. Prince George’s Cnty, 42 F.4th 413, 419 (4th Cir. 2022) (“[A] legislative amendment will moot a

challenge . . . when it significantly alters the posture of the case.” (quotations and brackets omitted).

criticized, 14 F.4th 276 (4th Cir. 2021). Thus, “at the summary judgment stage . . . a party can

no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence

‘specific facts.’” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 411–12 (2013) (citing Lujan, 504

U.S. at 561).

In Clapper v. Amnesty Int'l USA, the Supreme Court addressed a constitutional challenge

to a law that allowed the U.S. Government to intercept the international communications of

noncitizens. 568 U.S. 398 (2013). Amnesty International argued that they had organizational

standing to bring their claims because some of their international communications were likely

to be intercepted. See id. at 401. However, the Supreme Court held that the organization had

not established standing because their claims of injury were too speculative. 8 Id. In doing so,

the Court analyzed the “imminence” requirement, stating that

“[a]lthough imminence is concededly a somewhat elastic concept,

it cannot be stretched beyond its purpose, which is to ensure that

the alleged injury is not too speculative for Article III purposes—

that the injury is certainly impending.” Defenders of Wildlife, 504 U.S.

at 565, n. 2 (internal quotation marks omitted). Thus, we have

repeatedly reiterated that “threatened injury must be certainly

impending to constitute injury in fact,” and that “[a]llegations of

8 The Clapper Court stated that

[R]espondents' argument rests on their highly speculative fear that: (1)

the Government will decide to target the communications of non-U.S.

persons with whom they communicate; (2) in doing so, the

Government will choose to invoke its authority under § 1881a rather

than utilizing another method of surveillance; (3) the Article III judges

who serve on the Foreign Intelligence Surveillance Court will conclude

that the Government's proposed surveillance procedures satisfy §

1881a's many safeguards and are consistent with the Fourth

Amendment; (4) the Government will succeed in intercepting the

communications of respondents' contacts; and (5) respondents will be

parties to the particular communications that the Government

intercepts.

Clapper, 568 U.S. at 410.

possible future injury” are not sufficient. Whitmore, 495 U.S., at 158,

[](emphasis added; internal quotation marks omitted); see also

Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3,[]; see

DaimlerChrysler Corp., supra, at 345 []; Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000);

Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979).

Id. at 409. In sum, because the Court was required to make several logical leaps to satisfy a

finding of injury, and plaintiffs had failed to “demonstrate[]e” any “specific facts,” the Court

held that the organization’s threatened fear was too speculative to satisfy the imminence

requirement. See id. at 410; see also Bauer v. Shepard, 620 F.3d 704, 708-09 (7th Cir 1984) (holding

that when “a series of events must happen” for an injury to occur, the court cannot “justify

constitutional adjudication”).

Additionally, the bar to satisfy a finding of standing is higher for organizational

plaintiffs. Lujan 504 U.S. at 562. When an organizational plaintiff “is not himself the object

of the government action or inaction he challenges, standing is not precluded, but it is

ordinarily ‘substantially more difficult’ to establish.” Id. (citing Allen v. Wright, 468 U.S. 737,

758 (1984). Similarly, an organization claiming that their injury lies in being forced to divert

resources to address an issue also faces a heightened standard. See Whitmore, 495 U.S. at 155-

56.

“Organizational injury, properly understood, is measured against

a group's ability to operate as an organization, not its theoretical

ability to effectuate its objectives in its ideal world . . . . Resource

reallocations motivated by the dictates of preference, however

sincere, are not cognizable organizational injuries because no

action by the defendant has directly impaired the organization's

ability to operate and to function. [See id.]

CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 239 (4th Cir. 2020). The Ninth Circuit has

held that a diversion of 15% or more of an organization’s resources is sufficient to establish

standing. See Doe #1 v. Trump, 984 F.3d 848, 860-81 (9th Cir. 2020).

Accordingly, absence of “one of the three required elements of Article III standing: (1)

injury-in-fact, (2) causation, or (3) redressability,” renders a case moot. Action NC v. Strach,

216 F. Supp. 3d 597, 612 (M.D.N.C. 2016); see also Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam) (“A case becomes

moot—and therefore no longer a ‘case’ or ‘controversy’ for the purposes of Article III—‘when

the issues presented are no longer “live” or the parties lack a legally cognizable interest in the

outcome.’” ); see also Carver v. Valliere, No. 1:17CV986, 2019 WL 6529448, at *2 (M.D.N.C.

Dec. 4, 2019), report and recommendation adopted, No. 1:17CV986, 2020 WL 364791 (M.D.N.C.

Jan. 22, 2020), aff'd as modified, 811 F. App'x 856 (4th Cir. 2020).

Since “[m]ootness is a jurisdictional question, it may “be raised sua sponte by a federal

court at any stage of proceedings.” Springer, 715 F.3d at 540 (citing North Carolina v. Rice, 404

U.S. 244, 246 (1971)); see also McClary v. Shuman, No. 1:18CV959, 2019 WL 6918525, at *2

(M.D.N.C. Dec. 19, 2019), report and recommendation adopted, No. 1:18-CV-959, 2020 WL

13739856 (M.D.N.C. Jan. 17, 2020). “Even when a plaintiff satisfies the requirements of

standing doctrine when litigation commences, a federal court may cease to have jurisdiction

when subsequent events render a claim moot.” N. Carolina State Conf. of NAACP v. N. Carolina

State Bd. of Elections, 283 F. Supp. 3d 393, 405 (M.D.N.C. 2017). Applicable subsequent events

include “a change in the facts or a change in the law.” See Great W. Cas. Co. v. Packaging Corp.

of Am., 444 F. Supp. 3d 664, 670 (M.D.N.C. 2020).9 The Court will now address each element

required to satisfy standing.

1. Injury-in-fact

The first standing element requires Plaintiffs to allege a concrete and imminent injury.

See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S.

464, 472 (1982). In Plaintiffs’ Amended Complaint, they allege that the threat of prosecution

for prospective voters under the challenged statute made it “practically impossible” for them

to carry out their mission. (See Am. Compl. ¶¶ 6, 14.) Specifically, they claim that they have

been forced to divert substantial resources from other get-out-the-vote measures to educate

prospective voters who had previously been convicted of a felony of their voting eligibility

satisfied the injury-in-fact analysis. (See id. ¶ 14.) Earlier in this action, the undersigned found

that this significant diversion of resources was sufficient to establish injury-in-fact. (See Docket

Entry 60 at 13.)

However, Senate Bill’s 747’s addition of a scienter requirement sets the violative bar

much higher, which substantially diminishes any prospective voter’s perceived threat of

prosecution and any resulting confusion. Under Senate Bill 747, a voter can only violate the

felony disenfranchisement statute if he or she already knows they are ineligible to vote,

intentionally disregards the law, and casts a ballot. If a voter knows he or she is ineligible and

9 Similar to the facts presently before the Court, in Citizens for Responsible Go’vt State Pol. Action

Comm. v. Davidson, several organizations and individuals brought suit to declare the Colorado Fair

Campaign Financing Act unconstitutional. During litigation, the Colorado legislature amended the

statute so that it was constitutionally compliant. Plaintiffs argued that the case was not moot because

prosecution under the pre-amendment statute could occur. The Tenth Circuit declared that the

superseding legislative action mooted their challenge. 236 F.3d 1174 (10th Cir. 2000).

will violate the law by voting, the voter has no need to seek out Plaintiffs’ advice regarding his

or her eligibility. Conversely, if a felon voter does not know he or she is ineligible to vote and

casts a ballot, they have not violated any law. As a result, Plaintiffs can no longer claim that

they must divert substantial resources to educate volunteers and prospective voters regarding

the new law because much of the confusion concerning one’s eligibility to vote has been

eliminated.

Instead, Plaintiffs now claim that their interest arises from the fact that the old,

challenged statute could be applied retroactively to violations from prior elections, which

could, in turn, cause confusion among prospective voters and force Plaintiffs to divert

resources to address that confusion. (See Docket Entry 105 at 4.) Like the alleged interest in

Clapper, to sufficiently allege injury, multiple, logical leaps need to be made. First, a felon voter

would need to be prosecuted under the old law. While this step alone is not dispositive, it

does require some speculation as to whether the DA Defendants would even choose to pursue

prosecution under the challenged statute.10 Next, other prospective voters would have to

learn about the prosecution under the old, challenged statute. Then, as a result of the

prosecution, a prospective voter would need to be sufficiently confused as to the applicability

10 While Defendants do not argue that it would be impossible for someone to be prosecuted

under the old law, neither party notes any prosecutions since 2016. (See Docket Entry 36 at 33-38; see

also Docket Entry 86 at 24.) Even then, Plaintiffs contend that only two district attorneys pursued

any type of prosecution and “most [Defendants] seem[ed] to have had no intent to break the law.”

(Id. at 34-35; see also Docket Entry 96 at 11.) Moreover, it appears all felony charges were dismissed.

(See id. at 30; see also Docket Entry 36 at 35; see also Docket Entry 94 at 21.) Given the scarcity of prior

prosecutions under the old law, the legislature’s acknowledgement that the law should be amended

moving forward, and because of the discriminatory intent of the original law, which is conceded by

the State, (see Docket Entry 94 at 2-3), the undersigned can think of no reason for any future

prosecutions under the old law to take place. If such should occur, it should only be pursued after

careful discernment, in good faith, and with a public explanation as to why prosecution is being

pursued.

of the old statute. Fourth, that confused prospective voter would need to approach one of

Plaintiffs’ organizations to ask for clarification. Finally, this would have to happen with such

frequency that Plaintiffs would be forced to divert “significant” resources from other get-out-

the-vote activities to address the confusion created by the prosecutions under the old,

challenged statute.

This possibility of a future injury is too speculative to establish a concrete and imminent

injury-in-fact. See Clapper, 568 U.S. at 418 (noting that a “theory of standing, which relies on

a highly attenuated chain of possibilities, does not satisfy the requirement that threatened

injury must be certainly impending.”); see also Beck v. McDonald, 848 F.3d 262, 272 (4th Cir.

2017). Plaintiffs provide no specific facts to substantiate that they will certainly need to divert

significant resources. They can only speculate as to whether this chain of events will occur at

all and cannot sustain any argument that it would occur with such frequency as to force

substantial diversion of resources. At the summary judgment phase, the Court needs more

than these abstractions and conjectures as to what might occur in the future. Given that an

injury must be so substantial that it threatens their very operation as an organization, rather

than merely impede their objectives, Plaintiffs have failed to establish a concrete interest in

the litigation.

2. Traceability

The second element requires, “a causal connection between the injury and the conduct

complained of.” Cooksey v. Futrell, 721 F.3d 226, 234 (4th Cir. 2013) (citation omitted). Any

injury must be “fairly traceable to the challenged action of the defendant, and not the result

of the independent action of some third party not before the court.” Id. at 234-35 (citation

omitted).

Given that Plaintiffs fail on the first step in the standing analysis, there is no need to

analyze their injury further. However, for reasons similar to those explained above, Plaintiffs’

alleged injury also fails to satisfy the traceability requirement. To satisfy the traceability

element, Plaintiffs’ injury i.e., the need to divert resources to address confusion under the old

law, would need to be causally connected to Defendants’ conduct i.e., the prosecution of felon

voters. As stated, Plaintiffs can only conjecture that such an organizational injury might occur

based on the speculative steps listed above. It is also somewhat speculative that Defendants

will choose to prosecute anyone under the old, challenged statute. Given that Plaintiffs’ injury

is conjectural, the traceability requirement is also too attenuated to satisfy standing.11

3. Redressability

` Lastly, Plaintiffs’ conjectural injury would also fail under a redressability analysis.

Redressability is satisfied “where there is non-speculative likelihood that the injury would be

redressed by a favorable judicial decision.” Cooksey, 721 F.3d at 238 (internal quotations and

citation omitted). Plaintiffs are required to “show that they ‘personally would benefit in a

tangible way from the court’s intervention’” Sierra Club v. United States Dep’t of the Interior, 899

F.3d 260, 284 (4th Cir. 2018) (quoting Friends of the Earth, 204 F.3d at 162); see also Deal v. Mercer

Cty Bd. Of Educ., 911 F.3d 183-90 (4th Cir. 2018) (same). “[I]t must be likely, as opposed to

11 Hypothetically, if, included among Plaintiffs, there was a felon voter who still faced a risk of

prosecution under the old, challenged statute, that individual’s injury might be sufficiently causally

connected to Defendants’ conduct. However, Plaintiffs have not brought their claims on behalf of

any felon voters and thus cannot attribute their injury to an independent third party.

merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S.

at 562.

Here, as stated above, Plaintiffs’ claims of injury are too speculative to show that

declaring the challenged statute unconstitutional would tangibly benefit them. See id. (finding

that standing is more difficult to show if the injury “arises from the government’s allegedly

unlawful regulation . . . of someone else”). Moreover, were the law to be declared

unconstitutional, Plaintiffs do not and could not argue that the proposed action would

eradicate all confusion regarding the current state of the law. Plaintiffs also do not claim injury

based on the need to address confusion resulting from the adoption of the new law. Nor do

they attack the new law as unconstitutional. As long as felony disenfranchisement statutes are

upheld as constitutional, there will necessarily be some level of confusion as to how they are

applied.12 It is entirely plausible that any declaration by the Court would have no effect on

Plaintiffs’ work because it is mere speculation that prosecutions under the old law would cause

confusion of such significance that Plaintiffs would be forced to substantially divert resources

to address the confusion. Thus, Plaintiffs fail to satisfy the third element of standing.

For the reasons stated above, in light of the legislature’s enactment of Senate Bill 747,

Section 38, which amends N.C.G.S. § 163-275(5) so that it now includes a scienter

requirement, Plaintiffs’ interest in the instant case has been altered in such a way that they can

no longer satisfy a finding of injury-in-fact. Plaintiffs no longer retain a concrete and imminent

injury that is fairly traceable to Defendants’ conduct and could be sufficiently redressed by a

12 Defendants state that nearly every state has adopted some sort of felony disenfranchisement

law. (See Docket Entry 94 at 12-13.)

favorable judicial action. Since Plaintiffs have failed to satisfy the three elements to establish

standing, the undersigned recommends that their claims be dismissed as moot for lack of

subject matter jurisdiction. See e.g., Citizens for Responsible Gov't State Pol. Action Comm., 236 F.3d

at 1200.

III. CONCLUSION

Accordingly, IT IS HEREBY RECOMMENDED that Plaintiffs’ Motion for

Summary Judgment be DENIED as moot, and the action be DISMISSED without

prejudice for lack of subject matter jurisdiction because Plaintiffs lack standing to pursue

their claims.

/s/ Joe L. Webster

United States Magistrate Judge

January 02, 2024

Durham, North Carolina