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, ) □

Plaintiffs,

ly, 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 Coutt on a motion to intervene by Philip E. Berger, President

Pro Tempore of the North Carolina Senate, and Timothy K. Moore, Speaker of the North

Catolina House of Representatives (collectively “Proposed Intervenors”), pursuant to Federal

of Civil Procedure 24. (Docket Entry 44.) Also before the Court is a motion by forty-

two individually named district attorneys (“DA Defendants”) seeking to dismiss Plaintiffs

North Carolina A. Philip Randolph Institute “NC APRI”) and Action NC’s (collectively

Plaintiffs”) Amended Complaint (Docket Entry 36) pursuant to Rules 12(b)(1) and (6) of the

Federal Rules of Civil Procedure. (Docket Entry 46.) After response and reply briefs were

filed to said motions (see Docket Entries 48, 49, 52, 53), the Court held a hearing on the matter

- January 12, 2022. (Minute Entry dated 1/12/2022.) For the following reasons, the Court

recommends that the motion to intervene be denied, and the DA Defendants’ motion to

dismiss be denied. .

I. BACKGROUND

On September 24, 2020, Plaintiffs commenced this action against the North Carolina

State Board of Elections (‘NCSBE”) and several of its officials (collectively “NCSBE

Defendants”), along with North Carolina Attorney General Josh Stein alleging that N.C. Gen.

Stat. § 163-275(5) (sometimes referred herein as “the challenged statute’’)’ is unconstitutional

under two theoties: (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 a motion for preliminary

injunction (Docket Batty 2), which the original defendants opposed (Docket Entry 16). While

filing theit opposition brief to the preliminary injunction request, those defendants also filed

a motion to dismiss for lack of jurisdiction and failure to state a claim. (See Docket Entry 18.)

In November 2020, the undersigned recommended Plaintiffs’ motion for preliminaty

injunction be denied and further recommended that North Carolina Attorney General Josh

Stein be dismissed from this action. (See Docket Entry 24.) The Court subsequently adopted

the Recommendation over Plaintiffs’ objections. (See Docket Entry 34.) Priot to the Coutt’s

adoption of the Recommendation, Plaintiffs filed a motion to amend the Complaint. (Docket

Entry 29.) The motion sought to amend Plaintiffs’ Complaint to name additional defendants

including North Carolina’s district attorneys and to make other changes, including adding

mote allegations concerning Defendants’ tole in the enforcement of the challenged statute.

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

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

9 .

(See id. at 4.2 On February 8, 2021, by stipulation of the patties 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.)°

Thereafter, summonses wete issued for the newly added Defendants. (Docket Entry

37.) On Match 9, 2021, the NCSBE Defendants filed an answer to the Amended Complaint

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

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

Intervenors filed theit motion on the same day. (Docket Entry 44.)

Plaintiffs’ Amended Complaint®

Plaintiffs are nonprofit, nonpattisan organizations whose missions ate, in patt, to

increase voter patticipation among Black and low-income communities in North Carolina.

(Am. Compl. ff] 14-15.) The NCSBE Defendants administer and investigate violations of

North Carolina election laws. (Id. 16-22.) The DA Defendants are responsible for

ptosecuting “all criminal actions” and ate also specifically empowered to “investigate ... and

2 Unless otherwise noted, all citations in this recommendation to documents filed with the

Coutt refer to the page numbers located at the bottom right-hand corner of the documents as they

appear on CM/ECF.

3 Plaintiff 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.

* The newly added Defendants also included two additional membets of the NCSBE, Stacy

“Four” Eggers IV and Tommy Tucker. (See Am. Compl. {ff 20-21; see a/so Docket Entry 37 at 17, 37.)

5 Plaintiffs reference and quote multiple sources that ate affixed as footnotes throughout the

Amended Complaint in electronic format. (See eg. Am. Compl. Footnote 8 (providing digital link to

1840-41 N.C. Sess. Laws 68-69).) Unless noted otherwise and for the sake of brevity, the

Recommendation herein excludes citations to those digital sources.

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 ot patole fot

a felony conviction.” (d.) □

As presently constructed, the challenged statute makes it a Class I felony, regardless of

intent, “[flor any person convicted of a ctime which excludes the person from the right of

suffrage, to vote at any primary or election without having been restored to the tight of

citizenship in due course and by the method provided by law.” (See ad. {| 42 (quoting N.C.

Gen. Stat. § 163-275(5) (alterations omitted)).) Violation of this statute while on parole,

probation ot post-telease 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 Karten

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 disptoportionately impact Black North Carolinians. (See Am. Compl. {ff] 24-60.) As such,

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

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

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

petson from the right of suffrage,” and not ptoviding information on testoration of citizenship

tights. (Id. J] 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

ptoviding notice to felons who ate ineligible to vote. (Id. J 68.) Plaintiffs also allege that the

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

ctiminal 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.)

Ultimately, Plaintiffs contend that the challenged statute impedes theit efforts to carty

out theit missions. (See id. JJ 93-95.) Thus, they seek a declaration that N.C. Gen. Stat. J 163-

275(5) is unconstitutional and to permanently enjoin Defendants from enforcement of said

statute. (Id. 7.)

II. DISCUSSION

1. Motion to Intervene

The Proposed Intervenots move to intervene as defendants in this matter permissively

pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. (Docket Entry 44.) Under

Rule 24(b), a court may permit intervention upon a timely motion of any party who “has a

claim or defense that shates with the main action a common question of law ot fact.” Fed. R.

Civ. P. 24(b)(1)(B). The decision to grant ot deny a motion for permissive intervention “Ties

within the sound discretion of the ttial court” although “some standards have been developed

to guide the courts in making intervention determinations.” Hillv. W. Elec. Co. Ine., 672 F.2d

381, 386 (4th Cir. 1982). “In exercising its discretion, the court must considet whether the

intervention will unduly delay or ptejudice the adjudication of the original parties’ rights.” Fed.

R. Civ. P. 24(b)(3). However, “findings on those factors are not determinative of or sufficient

to decide a permissive intervention motion.” McHenry v. Comm’r, 671 F.3d 214, 222 (4th Cir.

2012). “A court may grant or deny permissive intervention irrespective of what it concludes

in its discussion of delay and prejudice.” Students for Fair Admisstons Inc. v. Univ. of N. Carolina,

319 ERD. 490, 494 (M.D.N.C. 2017) (citation omitted). Ultimately, Rule 24(b) affords the

Court broad discretion and “a challenge to the court’s discretionary decision to deny leave to

intervene must demonstrate a car abuse of discretion in denying the motion.” McHenry, 677

F.3d at 219 (internal quotations and citations omitted).

Here, the Proposed Intetvenors have attached theit proposed Answer to the Amended

Complaint (see Docket Entry 45-1). ‘They contend that theit motion is timely and that their

defenses shate common factual and legal issues with those of the current defendants. (Docket

Entry 45 at 4-5.) The Proposed Intetvenors also argue that the intervention sought will not

delay nor prejudice the patties given the matter is still in early proceedings and they are not

seeking to pursue ctoss-claims nor add counterclaims. (Id. at 5-6.) They further contend that

the intervention will also have no effect on the Coutt’s subject-matter jurisdiction in this case.

(Id. at 6.)

Plaintiffs first oppose the motion as untimely. (Docket Entry 49 at 7-8.) They contend

that the Proposed Intervenors delayed filing their motion until nearly seven months after this

action commenced. (Id. at 8.) In addition, Plaintiffs argue that since this publicly known

action was filed and considering the procedural events thus far, the Proposed Intervenors had

not been involved, have no reason as to why they did not seek intervention sooner, and

provide no explanation for the sudden need for intervention at this juncture. (Id.) Plaintiffs

further atgue that the intervention sought will unduly delay and prejudice their tights as the

- Proposed Intervenors seek to raise some “unique defenses” delaying resolution of this matter.

(Id. at 9.) Lastly, Plaintiffs contend that the Proposed Intervenors’ rights ate adequately

represented by the cutrent Defendants and denial of this motion does not foreclose the

Proposed Intervenots of the opportunity to express views through submission of amicus briefs.

(Id. at 11-13.)

Having considered the parties’ arguments and relevant law, the Court concludes that

the intervention sought should be denied. Fitst, regarding timeliness, “[a] reviewing coutt

should look at how fat the suit has progressed, the prejudice which delay might cause other

patties, and the reason for the tardiness in moving to intervene.” Gould v, Alleco, Inc., 883 F.2d

281, 286 (4th Cir. 1989). Here, although the action had been pending for nearly seven months,

the Proposed Intervenors’ request was sought just weeks after learning of the filing of the

Amended Complaint. Procedurally, some meaningful activity has taken place in this matter,

but it thus remains in the pleadings stage.

For the same teason, thete is no prejudice related to the timing of the Proposed

Intervenots’ motion in light of the procedural postute of this action. See Obio Valley Env't

Coal., Inc. v. McCarthy, 313 F.R.D. 10, 17 (S.D.W. Va. 2015) (“[Blecause the proceeding is in its

infancy, no existing patty has been prejudiced by the time it took for [movant] to file its motion

to intervene.”). As to the third factor, the procedural posture of this case again weighs in favor

of a timeliness intervention motion. See United States v. Virginia, 282 F.R.D. 403, 405 (E.D. Va.

2012) (“Where a case has not progtessed beyond the initial pleading stage, a motion to

intetvene is timely.”). As such, the Court concludes that the motion is timely.

. Despite the Court’s conclusion that the motion to intervene is timely, the motion □

should nevertheless be denied because permitting the intervention sought will unduly delay

the adjudication of Plaintiffs’ rights and unnecessarily burden judicial resources. While the

Proposed Intetvenors have a “statutorily-vested, strong interest in being heard as to the

constitutionality of the General Assembly’s duly enacted statutes,” they concede that the

“current defendants in this action ate fully able to defend” the statutory provision at issue.

(Docket Entry 45 at 3.) Indeed, the NCSBE Defendants, who ate already represented by the

North Carolina Department of Justice, have been vigorously defending this action since it

commenced, and the DA Defendants have filed the pending motion to dismiss. The Proposed

Intervenots, also represented by the North Carolina Department of Justice, ultimately want to

show that the challenged statute was not enacted with discriminatory intent, nor that it is

unconstitutionally vague. However, it is simply unclear, particularly considering the Proposed

Intervenors’ own concession, how the current defendants have not, and ate not currently,

“zealously pursuing the same ultimate objectives” as the movants. Start v. Huff, 706 F.3d 345,

355 (4th Cir. 2013) (internal quotations and citation omitted).

Given such, the undersigned concludes that allowing the intervention sought in this

action “will hinder, rather than enhance, judicial economy, and will unnecessarily complicate

delay the vatious stages of this case.” N. Carolina State Conf. of NAACP v. Cooper, 332

F.R.D. 161, 172-73 (M.D.N.C. 2019) (internal quotations and citation omitted); see also □□□□□□

of Charleston v. Adams, No. 2:21-CV-1093, 2021 WL 3146027, at *4 (D.S.C. July 26, 2021)

(unpublished) (“[I]ntervention would unnecessarily complicate the case, hinder judicial

economy, and detract from the timely resolution of the weighty issues implicated by this

matter.”). As the Foutth Circuit has stated, “[a]dditional patties can complicate routine

scheduling orders, prolong and inctease the burdens of discovery and motion practice, thwart

settlement, and delay trial.” Start, 706 F.3d at 350. Moreover, “[a]s for the Court’s resoutces,

dealing with .. . extra patt[ies] by its very nature requites additional coutt resoutces.” McCarthy,

313 E.R.D. at 31. Patticularly in this case, where the Proposed Intervenors themselves have

conceded that the North Carolina Department of Justice is already zealously representing the

interests of Defendants, “the Coutt fails to see any benefit that permitting intervention would

ptovide which allowing the Proposed Intervenors the opportunity to participate as □□□□

curiae would not.” Lee v. Virginia Bd. of Elections, No. 3:15CV357-HEH, 2015 WL’5178993, at

*5 (E.D. Va. Sept. 4, 2015) (unpublished). Indeed, “[w]hile a would-be intervenor may prefer

patty status to that of a friend-of-coutt, the fact remains that amici often make useful

contributions to litigation.” Siwart, 706 F.3d at 350.

Overall, at the Court’s discretion the request for permissive intervention pursuant to

Rule 24(b) should be denied. However, the Proposed Intervenots should be allowed, if they

so desite, to present their views in support of the challenged statute through submission of an

amicus btief at the approptiate time. Sve ¢.g., Adams, 2021 WL 3146027, at *4 (unpublished)

(“[T]he Court concludes that Proposed Intervenors’ participation as amici would satisfy their

assetted need for intervention”) ; Cooper, 332 F.R.D. at 173 (“To the extent that Proposed

Intervenots have special expertise they believe that they bring to the defense of [the challenged

law], such expertise can be provided through the submission of amicus briefs.”); Lee, 2015 WL

5178993, at *5 (allowing proposed intervenots to participate as amici curiae).

2. DA Defendants’ Motion to Dismiss

Also before the Court is a motion to dismiss Plaintiffs’ Amended Complaint on behalf

of the forty-two individually named DA Defendants in this action. (Docket Entry 46.) Asa

threshold issue, the DA Defendants raise Article IIT standing and Eleventh Amendment

immunity arguments invoking inquities into this Coutt’s subject-matter jurisdiction over this

action. (See Docket Entry 47 at 3-11.) Mote specifically, the DA Defendants argue that

Plaintiffs lack standing regarding the enforcement of the challenged statute because they have

not suffered any injuty-in-fact, have not alleged any injury traceable to the DA Defendants,

and allege a remedy that does not address the alleged injuries. (See #4.) The DA Defendants

also atgue that this action is barred under the Eleventh Amendment. (/d. at 10-11.) For the

reasons stated herein, the Court concludes that Plaintiffs have established standing to. bring

this suit against the DA Defendants.

Standing

Federal district courts exercise limited jutisdiction in that the court “possess only the

jurisdiction authorized .. . by the United States Constitution and by federal statute.” United

States ex rel. Vignuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citation omitted). Article ITI

of the United States Constitution outlines the federal court’s jurisdictional limits, which

implicates certain docttines including standing and ripeness. See U.S. Const., att. IIL, § 2; Susan

B, Anthony List v. Driehaus, 573 US. 149, 157-58 & n.5 (2014). For any case ot controversy to

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

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

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

10

458 (4th Cir. 2005) (quoting Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 789 (Ath Cit. 2004)).

Atticle ITI standing is “an integral component of the case of controversy tequitement.” CGM,

LLC v, BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011) (quoting Mier v. Brown, 462

F.3d 312, 316 (4th Cir. 2006)). “[C]hallenges to constitutional standing are [generally]

addtessed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because Article HI

gives federal coutts jutisdiction only ovet cases and conttoversies.” Midget v. Cooper, No. 1:20-

CV-00941, 2021 WL 4973634, at *3 (M.D.N.C. Oct. 26, 2021) (unpublished) (internal

quotations and citation omitted).

When assessing motion to dismiss under Rule 12(b)(1) for lack of subject-matter

jutisdiction, the court may consider evidence outside the pleadings and should grant the

motion “only if the material jurisdictional facts ate not in dispute and the moving patty is

entitled to prevail as a matter of law.” Evans B.F. Perkins Co., a Div. of Standex Int'l Corp., 166

F.3d 642, 647 (4th Cir. 1999) (internal quotations and citation omitted). The burden of

satisfying Article IIT’s standing requirement lies with the party secking to invoke the federal

coutt’s jurisdiction. Miller, 462 F.3d at 316. To establish constitutional standing, “(1) the

plaintiff is required to have sustained an injury in fact; which (2) must be causally connected

to the complained-of conduct undertaken by the defendant; and (3) will likely be redtessed if

the plaintiff prevails.” Labertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).

Organizations may establish standing to bring suit on their own behalf and for injuries on

behalf of their members. See White Tail Park, 413 F.3d at 458. Plaintiffs NC APRI and Action

NC ate both otganizations bringing suit on behalf of themselves. (See Am. Compl. {fff 14-15.)

To bring suit on its own behalf an organization must meet the same standing requirements

11

that apply to individuals. See S. Walk at Broadlands Homeowner’s Ass'n, Inc. v. OpenBand at

Broadlands, LLC, 713 F.3d 175, 182 (4th Cir. 2013). The Court address each standing

requirement in turn as it relates to the DA Defendants.

1. Injury-In-Fact

Injury in fact, the first component of standing, requires Plaintiffs to allege an actual ot

threatened injury. Valley Forge Christian Coll. v. Americans United for Separation of Church & State,

Inc, 454 U.S. 464, 472 (1982). The DA Defendants contend that Plaintiffs cannot establish

injuty in fact because as organizations whose core missions include voter education, “it would

necessatily follow that allocating resources to know and understand North Carolina’s voting

laws, and educate voters of the same, would be inherent in that mission, and not an

impediment.” (Docket Entty 47 at 6.) The undersigned finds this argument unpetsuasive.

The Amended Complaint alleges that Plaintiffs’ ability to carry out their mission of

registering and encouraging Aftican-Americans to vote has been substantially impeded by the

“specter of prosecution” under N.C. Gen. Stat. § 163-275(5). (See Am. Compl. {| 6.) More

specifically, it has “chilled countless e4gible voters with criminal convictions from exetcising

their tight to cast a ballot.” (Id. 4 (emphasis in original).) ‘he Amended Complaint further

alleges that time, money and resources have been diverted from voter registration activities to

educate volunteers on the potential risks of registering a felon to vote, and “to caution

community membets on the potential risks of voting after a felony conviction before sentence

completion.” (Id. J] 14.)

‘The undersigned pteviously addressed the issue of standing earlier in this action as to

sevetal other defendants. (See Docket Entry 24 at 8-15.) As previously stated regarding □□□□□□

12

in fact, “[t]he Supreme Court has held that if a defendant’s practices have hampered an

otganization’s stated objectives causing the organization to divert its resources as a result, then

‘there can be no question that the organization has suffered injury in fact. ” Acton NC ».

Strach, 216 F. Supp. 3d 597, 616 (M.D.N.C. 2016) (quoting Havens Realty Corp. v. Coleman, 455

U.S. 363, 379 (1982)); see also Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (“An organization

may suffer an injuty in fact when a defendant’s actions impede its efforts to catty out its

mission.”). Here again, as Plaintiffs have alleged that their efforts to carry out their missions

have been impeded, and because resources have been diverted to address fears surrounding

the enforcement of N.C. Gen. Stat. § 163-275(5), the Court finds that Plaintiffs have

established otganizational injury for the purposes of standing at this junctute.6 See Democracy

N. Carolina v. N. Carolina State Bd. of Elections, 476 F. Supp. 3d 158, 182 (M.D.N.C. 2020)

(“Organizational standing requires impaired ability to provide its intended services, including

a dtain of tesoutces.”), reconsideration denied, No. 1:20CV457, 2020 WL 6591396 (M.D.N.C.

Sept. 30, 2020).

The DA Defendants contend that because Plaintiffs’ core missions include educating

voters, “it would necessarily follow that allocating resources to know and understand North

° Tn support of their motion for preliminary injunctive relief, Plaintiffs previously supported

these same allegations as alleged in the Original Complaint with declarations by their executive

directors. (See Melvin Montford Declaration ¥ 11, Docket Entry 3-22; Pat McCoy Declatation {| 10,

Docket Entry 3-23.) The undersigned notes that even considering the Amended Complaint standing

alone, the broad allegations of diverting resources are sufficient to establish organizational injury. See

Nat? Council of La Raza v. Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015) (citation omitted) (“The

[Supreme] Court has . . . made clear that a diversion-of-resoutces injury is sufficient to establish

organizational standing at the pleading stage, even when it is ‘broadly alleged.’ ”); see also Lujan v. Defs.

of Wildlife, 504 U.S. 555, 561 (1992) (internal citations and quotations omitted) (“At the pleading stage,

general factual allegations of injuty resulting from the defendant’s conduct may suffice, for on a

motion to dismiss we presum|e] that general allegations embrace those specific facts that ate necessary

to support the claim.”).

13

Catolina’s voting laws, and educate voters of the same, would be inherent in that mission, and

not an impediment.” (Docket Entry 47 at 6.) This argument is unpersuasive. “[H]aving

genetal get-out-the-vote activities and votet-education programs as part of each Plaintiffs’

mission does not undermine the Plaintiffs’ ability to demonstrate standing.” Pair Fight Action,

Inc. v. Raffensperger, 413 F. Supp. 3d 1251, 1267 (N.D. Ga. 2019). Ultimately, the time and

tesoutces used to address fears suttounding the enforcement of the challenged statute is time

away from Plaintiffs’ get-out-the-vote activities. See eg, Fla. State Conf. of NAACP. □□

Browning, 522 F.3d 1153, 1165-66 (11th Cir. 2008) (finding that the plaintiff organizations

reasonably anticipated diversion of time and resources to educating volunteers and voters on

compliance with the challenged law and concluding that “resources would otherwise be spent

on registration drives and election-day education and monitoring”).

Further, the DA Defendants point out that Plaintiffs have not asserted any cases in

which eligible voters have been prosecuted undet N.C. Gen. Stat. § 163-275(5), nor are there

any known record of any persons actually being convicted under the statute. (Docket Entry

53 at 3.) This argument overlooks Plaintiffs’ allegations of impediments to theit cote missions

of registering and encouraging Blacks to vote, and the diversion of resources to address feats

surrounding the enforcement of the challenged statute, which is sufficient to establish

otganizational injuty in fact. Democracy, 476 F. Supp. 3d at 182; Havens Realty, 455 U.S. at 379.

In sum, the undersigned concludes that the first prong of standing has been satisfied.

2. Traceability

The DA Defendants next argue that Plaintiffs do not meet the standing requirements

because they cannot show that the organizational injury is traceable to an action by each

14

individually named DA Defendant. (Docket Entry 47 at 6-8.) The DA Defendants’ position

is based on the contention that Plaintiffs’ allegations acknowledge that: (1) only two district

attorneys (Hoke and Alamance counties) have ever brought charges under the challenged

statute in the sixteen cases referenced in the Amended Complaint (see éd. at 6 (citing Am.

Compl. { 23); see also. Am. Compl. {ff 51, 54); and (2) many district attorneys have summarily

declined to bring charges under the challenged statute after concluding that there was

insufficient evidence to prove that the individuals were ever notified regarding their ineligibility

to vote (see Docket Entry 47 at 6 (citing Am. Compl. {[ 50).) The DA Defendants further

contend that there are no allegations that the remaining DA Defendants have previously

prosecuted ot ate threatening to prosecute under the statute, nor any allegations that they

“prosecuted ot threatened to prosecute Plaintiffs.” (Docket Entry 47 at 6-7.) Moteover, as

Plaintiffs are organizations, the DA Defendants argue that they face no credible threat of

prosecution. (Id. at 7-8.)

The causation element of standing requires “a causal connection between the injury

and the conduct complained off[.]” Cooksey v. Futrell, 721 F.3d 226, 234 (4th Cir. 2013) (citation

omitted). Furthermore, “the injury has to be faitly 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). “[T]he ‘fairly traceable’ standard is not equivalent to

a requirement of tort causation.” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204

F.3d 149, 161 (4th Cir. 2000). However, there must be a “genuine nexus” between the

defendant’s conduct and the plaintiffs injury. Kade/v. Fohvell, 446 FP. Supp. 3d 1, 10 (M.D.N.C.

2020) (citing Friends of the Earth, 204 F.3d at 161). “[A}t the pleading stage, general factual

15

allegations of injury resulting from the defendant’s conduct may suffice to establish

traceability.” Jd (internal quotations and citation omitted).

Here, there is a causal connection between Plaintiffs’ injury and the DA Defendants’

conduct. As the Amended Complaint alleges, the DA Defendants have been conferred

specific statutoty authority to prosecute under N.C. Gen. Stat. § 163-275(5) (see Am. Compl.

23 (quoting N.C. Gen. Stat. § 163-278)), and at least two DA Defendants have brought

criminal charges pursuant to the challenged statute (sce Am. Compl. {] 23). Though many of

the DA Defendants have summarily declined to bring charges under the challenged statute (2d.

{{ 50), it does not negate their ability to do so. Indeed, the decisions were not based on a

generally disclaimed authority to prosecute, but rather allegedly on a lack of sufficient evidence

“to ptove that the defendant [in those cases] was evet notified of his or her ineligibility to

vote” (id. (citing Ex. 5 to Am. Compl., Docket Entry 1-5)).

In addition, although the DA Defendants point to the undetsigned’s previous finding

that Plaintiffs as organizations face no threat of prosecution under the challenged statute (see

Docket Entry 53 at 5), Plaintiffs allege that the fear of prosecution remains for those

prospective eligible voters with felony convictions, frustrating Plaintiffs’ core missions. (Am.

Comp. {ff 4, 14-15 ,79-95.) And this is despite the September 4, 2020 decision from the Wake

County Superior Court which enjoined the NCSBE and others “from preventing a person

convicted of a felony from registering to vote and exercising their right to vote if that person’s

only remaining battier to” sentence completion is payment of monetary fees. (See Am. Compl.

{ 5.) Plaintiffs allege that “[dJespite this injunction, . . . individuals with only outstanding

financial obligations in connection with a felony conviction might and indeed will opt not to

16

vote because of the fear of criminal prosecution under” the challenged statute. □□□□

Ultimately, because Plaintiffs’ core missions are impeded, and resoutces diverted, by the

possibility of the DA Defendants exercising their authority to enforce the challenged statute

against eligible voters with criminal convictions, the traceability requitement is met.

3. Redressability

Finally, the DA Defendants argue that Plaintiffs do not have standing because the

injunction Plaintiffs seek does not tedress their alleged injuries. (Docket Entry 47 at 8-10.)

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

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

citation omitted). The Fourth Circuit has recognized that a plaintiff “need not show that a

favorable decision will relieve [theit] every injury.” Szerra Club v. United States Dep't of the Intertor,

899 F.3d 260, 284 (4th Cir. 2018) (citing Larson v, Valente, 456 U.S. 228, 242-44 & n.15 (1982).

Instead, Plaintiffs here “need only show that they ‘personally would benefit in a tangible way

from the coutt’s intetvention.’” Id. (quoting Friends of the Earth, 204 F.3d at 162). See also Deal

v. Mercer Cty. Bd. of Edue., 911 F.3d 183, 189-90 (4th Cir. 2018) (same).

Hete, enjoining the DA Defendants along with the NCSBE Defendants from

enforcement of the challenged statute would necessarily prohibit investigation and ultimate

prosecutions of any violation of the statute, and substantially reduce the resources that

Plaintiffs expend in their focus on eligible voters with criminal convictions who fear

prosecution. The DA Defendants argue that Plaintiffs’ missions will still demand that they

educate volunteers and potential voters of criminal disenfranchisement in North Carolina, the

NCSBE Defendants will still have statutorily mandated investigatory duties, and individuals

17

with felony convictions who vote before sentence completion would still be subject to

prosecution putsuant to other North Carolina voting statutes, which theit ignorance of the

law does not give way to unlawful conduct. (Docket Entry 47 at 8-9.) However, these

atguments miss the point. As the undersigned has previously noted, enjoining the NCSBE

Defendants would be a tangible benefit to Plaintiffs as it would necessarily prohibit them from

investigating ot referting for prosecutions any violation of the statute. (See Docket Entry 24

at 14.) While the NCSBE Defendants would maintain investigatory duties in the

administtation of elections laws, the challenged statute would not be one of them. Further,

enjoining the DA Defendants from investigating ot prosecuting violations under N.C. Gen.

Stat. § 163-275(5) would be a benefit to Plaintiffs as it would substantially reduce the resoutces

that Plaintiffs must expend to educate and reassute eligible voters with criminal convictions

who fear prosecution under the challenged statute. Thus, redressability is met.

Eleventh Amendment Immunity

The DA Defendants also contend that they ate immune from suit pursuant to the

Eleventh Amendment. (Docket Entry 47 at 10-11.) Pursuant to the Eleventh Amendment,

sovereign immunity prohibits actions in fedetal court by individuals against a state unless the

state has consented to suit or unless Congress has lawfully abrogated the states’ Eleventh

Amendment immunity. Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003). “However,

the Supreme Court has also long recognized an exception to this general rule: state officials

ate sttipped of immunity and subject to lawsuits for declaratory ot injunctive relief, when these

suits ate based on the act of enforcing an allegedly unconstitutional state statute.” NC RSOL

v. Boone, 402 F. Supp. 3d 240, 255 (M.D.N.C. 2019) (citing Ex parte Young, 209 U.S. 123 (1908)).

18

However, this “exception does not permit federal courts to entertain claims secking

tetrospective telief, either compensatory or other, for completed, not presently ongoing

violations of federally protected tights.” A/+Deen v. Trustees of Univ. N.C., Wilmington, 102 F.

Supp. 3d 758, 764-65 (E.D.N.C. 2015) (quoting Republic of Paraguay v. Allen, 134 F.3d 622, 627

(4th Cir. 1998)). Rather, to determine whether the Ex parte Young exception applies, the Court

“need only conduct a sttaightforward inquity into whether the complaint [(1)] alleges an

ongoing violation of federal law and [(2)] seeks relief properly chatacterized as prospective.”

Constantine v. Rectors ¢» Visitors George Mason Univ. 411 F.3d 474, 496 (4th Cir. 2005) (quoting

Verizon Mad., Inc. v. Pub. Serv. Comm'n Md., 535 U.S. 635, 645 (2002)). “The requitement that

the violation of federal law be ongoing is satisfied when a state officer’s enforcement of an

allegedly unconstitutional state law is threatened, even if the threat is not yet imminent.” Waste

Mgmt. Holdings, Inc. v. Gilmore, 252. F.3d 316, 330 (4th Cir. 2001) (citation omitted).

Here, Plaintiffs have alleged that N.C. Gen. Stat. § 163-275(5) is unconstitutional and

ate seeking to permanently enjoin Defendants from enforcement of the statute. The DA

Defendants argue that there is no special relationship that supports implication of the Ex parte

Young exception because Plaintiffs do not allege ongoing ptosecutions of threats of

prosecutions by the DA Defendants undet the challenged statute, only that there are past

prosecutions in two counties which did not result in convictions. (Docket Entry 47 at 11.)

The undersigned disagrees. “Where a state law is challenged as unconstitutional, a defendant

must have ‘some connection with the enforcement of the act’ in order to properly be a party

to the suit.” South Carolina Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008)

(quoting Lyte v. Griffith, 240 F.3d 404, 409 (4th Cir. 2001)). This “special relation”

19

“sequites proximity to and responsibility for the challenged state action.” Wright v. North Carolina,

787 F.3d 256, 261-62 (4th Cir. 2015) (quotation omitted) (emphasis in original). Here, though

two DA Defendants have initiated prosecutions under the challenged statute in past elections,

all of them ate statutorily authorized to do so and none have disclaimed intent. See Does 1-5 v.

Cooper, 40 F. Supp. 3d 657, 674 (M.D.N.C. 2014) (holding that “District Attorneys each have

the authority to prosecute individuals for violating the challenged statute” despite only one

evet having “explicitly threatened any Plaintiffs with prosecution”). ‘Thus, this sufficiently

establishes a special relation required to invoke the Ex parte Young exception.

Rule 12(b)(6) — Failure to State a Claim

The DA Defendants also argue that dismissal of Plaintiffs’ Amended Complaint is

wattanted under Rule 12(b)(6) for failure to state a claim. .A motion to dismiss for failure to

state a claim pursuant to Rule 12(b)(6) raises the question of whether the plaintiffs complaint

or pleadings ate legally sufficient. Francis v. Giacomellt, 588 F.3d 186, 192 (4th Cir. 2009). “To

sutvive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

to “state a claim to relief that is plausible on its face.” Ashcroft v. Igbal, 556 U.S. 662, 678

(2009) (quoting AWantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint may watrant

Rule 12(b)(6) dismissal “by failing to state a valid legal cause of action, z¢., a cognizable claim,

ot... by failing to allege sufficient facts to support a legal cause of action.” Joe Hand Promotions,

Ine. v. Hayes, No. LA8CV531, 2019 WL, 4246646, at *2 (M.D.N.C. Sept. 6, 2019) (unpublished)

(internal citations omitted).

A 12(b)(6) motion tests the sufficiency of a complaint and “does not resolve contests

suttounding the facts, the metits of a claim, or the applicability of defenses.” Republican Party

20

of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir, 1992). Accordingly, a court should “assume the

truth of all facts alleged in the complaint and the existence of any fact that can be proved,

consistent with the complaint’s allegations.” HE. Shore Mais. Ine. v. J.D. Assocs. Ltd. P’ship, 213

F.3d 175, 180 (4th Cir. 2000). Although the truth of the facts alleged is assumed, coutts ate |

not bound by the “legal conclusions drawn from the facts” and “need not accept as true

unwatranted inferences, unreasonable conclusions, or arguments.” Id. Further, a court should

not “coryure up questions never squately presented.” Beawcdett v. City of Hampton, T15 F.2d

1274, 1278 (4th Cir. 1985).

1. Void for Vagueness Doctrine

The DA Defendants argue that Plaintiffs have not adequately alleged that the

challenged statute is unconstitutionally vague in violation of the Due Process Clause. (Docket

Entty 47 at 15-19.) “The void for vagueness doctrine is tooted in the Due Process Clause of

the Fifth and Fourteenth Amendments.” Manning v. Caldwell for City of Roanoke, 930 F.3d 264,

272 (4th Cir. 201 9), It “addresses at least two connected but discrete due process concerns:

first, that regulated parties should know what is requited of them so they may act accordingly;

second, precision and guidance ate necessaty so that those enforcing the law do not act in an

atbittary or disctiminatory way.” FCC». Fox Television Stations, Inc. 567 U.S. 239, 253 (2012).

The Fourth Circuit has stated that “[a] statute is unconstitutionally vague under the Due

Process Clause if it ‘fails to provide a petson of ordinaty intelligence fair notice of what is

ptohibited, or is so standardless that it authorizes or encourages setiously discriminatory

enforcement. ” Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012) (quoting United States v.

Wiliams, 553 US. 285, 304 (2008)). In citcumstances where “criminal penalties may be

21 □

imposed for violations of a law, a stticter standard is applied in reviewing the statute for

vagueness.” Manning, 930 F.3d at 272-73 (citation omitted).

Plaintiffs’ Amended Complaint alleges that the challenged statute “does not define

which crimes ‘exclude[ ] the person ftom the right of suffrage,’ nor. does it provide any

information concerning how an individual may be ‘restored to the tight of citizenship.’” (Am.

Compl. {| 62.) Rather, Plaintiffs allege that a prospective voter must turn to N.C. Gen. Stat.

§ 163-55(a)(2) entitled, Qualifications to vote; exclusion from electoral franchise, to determine □□□

classes of petsons prohibited from voting. (/d.) It reads:

[T]he following classes of persons shall not be allowed to vote in

this State: ... Any person adjudged guilty of a felony against this

State or the United States, or adjudged guilty of a felony in

another state that also would be a felony if it had been committed

in this State, unless that person shall be first restored to the rights of

citizenship in the manner ptesctibed by law.

N.C. Gen. Stat. § 163-55(a)(2) (emphasis added). Plaintiffs allege that “[t]o determine how to

be ‘restored to the tights of citizenship,’ a ptospective voter must” then turn outside North

Catolina’s election code to Chapter 13 of the North Carolina’s General Statutes, entitled

Citizenship Restored, to discover that an individual “regains citizenship tights upon his or her

‘unconditional discharge.’ ” (Am. Compl. §] 63 (citing N.C. Gen. Stat. § 13-1 (“Citizenship

Restoration Law’’).) .

In its entirety, the Citizenship Restoration Law reads:

Any petson convicted of a crime, whereby the tights of

citizenship ate forfeited, shall have such rights automatically

restored upon the occurrence of any one of the following

conditions:

(1) The unconditional discharge of an inmate, of a probationer, ot of

a patolee by the agency of the State having jurisdiction of that

22

person ot of a defendant under a suspended sentence by the

court.

(2) The unconditional patdon of the offender.

(3) The satisfaction by the offender of all conditions of a

conditional pardon.

(4) With regard to any petson 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,

the unconditional pardon of such person ot the satisfaction by

such petson of a conditional pardon.

(5) With regard to any person convicted of a ctime in another

state, the unconditional discharge of such petson by the agency of -

that state having jurisdiction of such petson, the unconditional

pardon of such petson ot the satisfaction by such person of a

conditional pardon.

N.C. Gen. Stat. § 13-1 (emphasis added). It is further alleged that this statute “nor any other

North Carolina statute defines the term ‘unconditional discharge[,]’” nor does “[t]he NCSBE

_.. define the term ... anywhere in the state’s Voter Registration Application or on the section

of the NCSBE’s website entitled, Registering as a Person in the Criminal Justice System.” (Am.

Compl. { 64.)

Plaintiffs also allege that North Carolina state court has construed the Citizenship

Restoration Law as “preclud[ing] the restoration of citizenship rights until the completion of

the sentence, including any period of patole, post-telease supervision ot probation.” (Id. | 65

(citation omitted).) However, “[p]atole was abolished in North Carolina in 1994” and “post-

telease supetvision” was imposed for felons under the Structured Sentencing Act, though

votet tegistration applications allegedly failed to mention post-telease supervision “until a few

months” prior to the filing of the Amended Complaint. (Id) Moreover, “[t]he NCSBE’s

23

sctipt for poll workers to use when verifying voter eligibility also failed to mention post-telease

supetvision.” (Id. | 66.) Further, the Amended Complaint alleges that “[t]he confusion caused

by the State’s voting materials is exacerbated by the State’s inadequate procedures for notifying

individuals with felony convictions that they are ineligible to vote.” (Id. {| 68; see also id. {| 69-

74.) Plaintiffs have noted changes since the 2016 post-election audit, including some

imptovements in the voter forms and the North Carolina Department of Public Safety’s

revised probation brochure concetning information on loss of voting tights. (Id. {J 75.)

Nevertheless, they allege that “these changes still do not provide constitutionally-adequate

notice” nor “do nothing to protect from criminal liability the individuals who voted in the

2016 election before sentence completion.” (Id. | 76.)

_ After review of the patties’ arguments and relevant case law, the undersigned concludes

that the allegations ate sufficient to state a plausible claim under the void for vagueness.

docttine. “[T']he Due Process Clause does not trequite that a statute be drafted with ‘perfect

clatity and precise guidance.’ ” Litth pv. Dominion Transmission, Inc, 138 F. Supp. 3d 699, 705

(W.D. Va. 2015) (citing Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)). Indeed, “words

of a statute must be tead in theit context and with a view to their place in the overall statutory

scheme.” Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989). When “[a] statute that

contains undefined terms or fails to explicitly state a standard [it] is not unconstitutionally

vague per se; [rather,] where a statute fails to define a term, courts will simply give the terms

their ordinary meaning.” United States v. Clarkson, No. 5:18-CR-00026, 2020 WL 564039, at *2

(S.D.W. Va. Feb. 4, 2020) (citing See United States v. Day, 700 F.3d 713, 725 (4th Cir. 2012)).

Ultimately, “the touchstone is whether the statute, either standing alone or as construed, made

24

it reasonably clear at the relevant time that the defendant’s conduct was ctiminal.” United S □□□□□

v. Lanier, 520 U.S. 259, 266 (1997).

Here, Plaintiffs’ allegations go beyond the claim that the challenged statute has

undefined terms. Essentially, it is the assettion that the challenged statute has undefined terms,

which implicitly incorporates another statute, the Citizenship Restoration Law, which also

itself has an undefined term, “unconditional discharge.” Coupled with the State’s construction

of the Citizenship Restoration Law and the alleged inadequate notification procedutes, these

allegations form the basis of Plaintiffs’ claim that a person of ordinaty intelligence lacks

adequate notice of his or het conduct in violation of N.C. Gen. Stat. § 163-275(5). (See Am.

Compl. 96-104.) Taken as true, the Coutt concludes that the allegations in the Amended

Complaint state a plausible claim under the void for vagueness doctrine of the Due Process

Clause. Thus, the DA Defendants’ motion should be denied as to this point.

2. Equal Protection Clause

The DA Defendants also move to dismiss Plaintiffs’ claim under the Equal Protection

Clause of the Fourteenth Amendment. (Docket Entry 47 at 19-22.) ‘he Equal Protection

Clause of the Fourteenth Amendment provides that no state shall prohibit “any person within

its jurisdiction the equal protection of the laws.” Fésher v. King, 232 F.3d 391, 399 (4th Cir.

2000) (quoting U.S. Const. amend. XIV, § 1). It “is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Cir, 473 US.

432, 439 (1985). Thus, no state can “putposely disctiminat[e] between individuals on the basis

of tace” without conflicting with the Fourteenth Amendment. Shaw v. Reno, 509 U.S. 630, 642

(1993) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)).

25

A facially-neuttral law is in violation of the Equal Protection Clause if it is adopted with

the intent to discriminate against a particular racial group. Washington v. Davis, 426 U.S. at 239.

“This includes a criminal disenfranchisement law enacted with the intent to deprive one racial

group of its tight to participate in the political process.” Jobnson v. Governor of State of Fla., 405

F.3d 1214, 1218 (11th Cir. 2005) (citation omitted). “Determining whether a statute was

enacted with discriminatoty intent is a factual question involving a two-step process.” N.

Carolina State Conf. of the NAACP v. Raymond, 981 F.3d 295, 303 (4th Cit. 2020) (citing Hunt v.

Cromartie, 526 U.S. 541, 549 (1999)). Plaintiffs must first demonstrate that racial discrimination

was a “ ‘substantial’ or ‘motivating’ factor behind enactment of the law[.]” Hunter v. Underwood,

471 US. 222, 228 (1985). In making that determination, the Supreme Court has set forth four

factors to consider: “(1) historical background; (2) the specific sequence of events leading to

the law’s enactment, including any departures from the normal legislative process; (3) the law’s

legislative history; and (4) whether the law ‘bears more heavily on one race than another.’ ”

Raymond, 981 F.3d at 303 (4th Cir. 2020) (citing Vill of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265-69 (1977)). “Once racial discrimination is shown to have been a

substantial or motivating factor behind the enactment of the law, the burden shifts to the law’s

defenders to demonstrate that the law would have been enacted without this

factor.” Hunter, 471 U.S. at 228 (internal quotation matks and citation omitted). “Only the

first step [of this process] is relevant at the Rule 12(b)(6) motion-to-dismiss stage, whete the

pleadings are under scrutiny.” Thompson v. Alabama, 293 F. Supp. 3d 1313, 1321 (M.D. Ala.

2017).

26

Hete, considering the DA Defendants’ arguments and taking the allegations in light

most favorable to Plaintiffs, the undetsigned concludes that the Amended Complaint states a

plausible claim for intentional discrimination under the Equal Protection Clause. Considering

the factors under Arlington Heights, as to the challenged statute’s disparate impact, Plaintiffs

allege that Aftican Americans have been disptoportionally flagged by the NCSBE and

subsequently charged for those violations. (See Am. Compl. ff] 48-49 (NCSBE’s audit of 2016

election determined that 441 individuals with felony convictions may have voted, 66% of

which wete Black; Am. Compl. {ff 4, 51, 54 (though comprising less than 21% of the county’s

population, 9 of 12 individuals (75%) charged under N.C. Gen. Stat. § 163-275(5) in Alamance

County in 2018 were Black; all 4 individuals charged in 2019 in Hoke County were Black).)

This indicates that the statute “beats more heavily on one tace than another.” Arkngton Heights,

429 US. at 266.

As to the historical background and events leading to the law’s original enactments,

Plaintiffs allege that before the Civil Wat, the North Catolina Constitution explicitly denied

voting tights to freed Black men in State-based elections. (Am. Compl {| 24 (citation

omitted).) After the Civil War, Plaintiffs allege that “North Carolinians seized on the State’s

criminal disenftanchisement law to limit Black suffrage” (¢d. J 26), and point to reports by

Reptesentative Thaddeus Stevens of Pennsylvania in 1867 who received information that in

North Carolina “where punishment at the whipping-post deprives the person of the right to

vote, they are now evety day whipping negtoes for a thousand and one trivial offenses.” (Id.

(citation omitted).) As further stated by Representative Stevens, in one county “they had

whipped evety adult male negto who they knew of. ‘They wete all convicted and sentenced at

27

once... for the putpose of preventing these negtoes from voting under the bills which have

been passed.” (Id. (citation omitted).)

Plaintiffs allege that North Carolina then adopted a new constitution in 1868 that

granted the right to vote, without regard to race, to all males, which did not include a criminal

disenfranchisement provision. (Id. § 27 (citation omitted).) “Black citizens participated in

government in previously unprecedented numbers and roles” until 1875 when North Carolina

amended its constitution to “frustrate and impede the influence of Black citizens.” (Id. {[§] 27-

28.) Plaintiffs allege that the “1875 constitutional amendments included a criminal

disenfranchisement provision” which “was widely understood . . . would disproportionately

impact Black North Carolinians.” (Id. §] 28 (citation omitted).) These allegations set forth the

historical perspective and events leading to the original enactment of N.C. Gen. Stat. § 163-

275(5).

After the 1875 constitutional amendments, Plaintiffs allege the North Carolina

Legislature enacted the first form of the challenged statute in 1877 through “a new law

imposing strict criminal liability on individuals convicted of disenfranchising offenses who

voted before they were testoted to the tights of citizenship.” (Am. Compl. {29 (citation

omitted.) There was no “intent requirement” at that time. (Id) Plaintiffs allege the North

Carolina Genetal Assembly teenacted the challenged statute with unequivocal discriminatory

intent. (Id. §§] 30-46.) Mote specifically, Plaintiffs point to the events leading up to the 1899

reenactment, including the actions of the State Democratic Executive Committee of North

Catolina (the “Committee”). (Id. fff 30-34.) As further alleged, “[t]he Committee claimed that

Black individuals engaged in widespread voting fraud, and specifically highlighted purported

28

voting by Black individuals with felony convictions.” (Id. 32.) Plaintiffs then point to the

Committee’s contention that “ ‘this is a white man’s country and white men must control and

govetn it’ ” and that “ ‘the special mission of the Democratic Party to rescue the white people

of the east from the curse of negro domination.” (Id. J 33 (citation omitted.)

Plaintiffs allege that in the November 1898 election, the Democtatic Patty turned to

the “threat of violence” and held rallies whereby large groups of men openly brandished

weapons while riding “through predominantly African American neighborhoods in an effort

to scate away potential Republican voters from the polls.” (Id. J] 34 (citation omitted).) “The

Democrats ‘won a majority of the seats in the legislature and quickly began work on legislation

that would effectively disenfranchise Aftican American voters for decades to come.’” (Id.

(citation omitted).) .

Plaintiffs allege that similar to the version enacted in 1877, the 1899 version of the

challenged statute was essentially verbatim and included no intent requirement. (Id. {] 36.)

Again in 1931, the North Carolina General Assembly teenacted many of the voting crimes to

include the challenged statute. (Id. { 39.) Plaintiffs allege that while changes “provided

uniform penalties for felony-level election crimes,” “streamlined the language of the 1899

version of the challenged statute,” and “specified that the law applied with equal force to

primary elections,” the “the key features of the 1931 version . . . were identical to the 1899 ..

. version.” (Id. J] 39-40.) As alleged in the Amended Complaint, those key featutes were

“voting while ineligible because of a ptior felony conviction was itself a felony under North

Carolina law, and one for which no intent element was requited to prove culpability.” □□□□ {

40.) Plaintiffs allege that because these key features of the challenged statute have never been

29

substantially amended, and it disproportionally impacts Black North Carolinians, it violates

the Equal Protection Clause. (Id. ] 111.)

As to the legislative history, it “may be highly relevant, especially where there are

contemporaty statements by members of_the decisionmaking body, minutes of its meetings,

ot tepotts.” Arhngton Heights, 429 U.S. at 268. Although Plaintiffs’ Amended Complaint is

bate as to allegations of specific documents or statements made by members of the General

Assembly at the time of the challenged statute’s original enactment, this Aréington Heights factor,

nor any other standing alone, is dispositive. Ariington Heights, 429 U.S. at 268 (“The foregoing

summaty identifies, without purporting to be exhaustive, subjects of proper inquity in

determining whether racially discriminatory intent existed.”); see also N. Carokna State Conf. of

NAACP v, McCrory, 831 F.3d 204, 229 (4th Cir. 2016) (noting that no Arlington Heights factor

is dipositive on its own).

Having considered the factors in Arlington Heights ‘in the totality of the circumstances,”

McCrory, 831 F.3d at 233, the undersigned concludes that Plaintiffs adequately allege that racial

disctimination was a substantial or motivating factor behind enactment of the challenged

statute. Plaintiffs further allege that such statute has been “reenacted almost verbatim” and

the General Assembly has never amended its key features. (Am. Compl. {| 107-08.) Having

assetted “that its original enactment was motivated by a desite to discriminate against blacks

on account of race and the section continues to this day to have that effect[,|” Hunter, 471 US.

at 233, the undersigned finds that the allegations are sufficient to nudge Plaintiffs’ Equal

Protection claim “across the line from conceivable to plausible,” Twombly, 550 U.S. at 570,

30

even if it appeats “that a recovety is very remote and unlikely,” 2. at 556, (citations and internal

quotation marks omitted). .

The DA Defendants argue that Plaintiffs make conclusory allegations that criminal

disenfranchisement under the North Carolina state constitution was enacted to frustrate the

influence of Blacks, yet Plaintiffs don’t challenge that provision of the state constitution.

(Docket Entty 47 at 21.) In addition, the DA Defendants contend that the information upon

which Plaintiff relies to evidence discriminatory intent is largely unconnected to the passage

of the challenged statute and not indicative of legislative intent. (Id. at 22; Docket Entry 53 at

11.) The undersigned finds these arguments unpetsuasive. First, while Plaintiffs make

allegations regarding criminal disenfranchisement under the North Carolina state constitution,

they do so in context to the narrowly focused challenge to N.C. Gen. Stat. § 163-275(5).

Second, to the extent the DA Defendants challenge the information presented in support of

Plaintiffs’ claims, the undersigned as mentioned above has already concluded that Plaintiffs’

allegations ate sufficient to survive Rule 12(b)(6) dismissal.

In concluding such, the Court makes no final determination on whether Plaintiffs will

be successful on either of their claims. Indeed, the Supreme Court has cautioned that

“fiJnquities into congressional motives or purposes ate a hazardous matter.” United States v.

O Brien, 391 U.S. 367 (1968); see also Hunter, 471 US. at 228 (“Proving the motivation behind

official action is often a problematic undertaking.”). ‘The determination of “whether invidious

discriminatory putpose was a motivating factor demands a sensitive inquity into such

circumstantial and direct evidence of intent as may be available.” Arkngton Heights, 429 U.S. at

266. At this stage, however, the inquiry is focused on the allegations as alleged in the Amended

31

Complaint, which are “enough to raise a tight to telief above the speculative level,” Twombly,

550 U.S. 544, 570. Thus, the DA Defendants’ motion to dismiss should be denied.

III. CONCLUSION □

_ For the reasons stated herein, IT IS HEREBY RECOMMENDED that Proposed

Intervenors’ Motion to Intervene (Docket Entry 44) be DENIED and that the Motion to

Dismiss by the forty-two individually named District Attorneys (Docket Entty 46) be

DENIED.

Qu Welato=

Joe L. Webster

United States Magistrate Judge

February 14,2022

Durham, North Carolina

32