Cmty. Success Initiative v. Moore

IN THE SUPREME COURT OF NORTH CAROLINA

No. 331PA21

Filed 28 April 2023

COMMUNITY SUCCESS INITIATIVE; JUSTICE SERVED NC, INC; WASH

AWAY UNEMPLOYMENT; NORTH CAROLINA STATE CONFERENCE OF THE

NAACP; TIMOTHY LOCKLEAR; DRAKARUS JONES; SUSAN MARION;

HENRY HARRISON; ASHLEY CAHOON; and SHAKITA NORMAN

v.

TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina

House of Representatives; PHILIP E. BERGER, in his official capacity as President

Pro Tempore of the North Carolina Senate; THE NORTH CAROLINA STATE

BOARD OF ELECTIONS; DAMON CIRCOSTA, in his official capacity as

Chairman of the North Carolina State Board of Elections; STELLA ANDERSON,

in her official capacity as Secretary of the North Carolina State Board of Elections;

KENNETH RAYMOND, in his official capacity as Member of the North Carolina

State Board of Elections; JEFF CARMON, in his official capacity as Member of the

North Carolina State Board of Elections; and DAVID C. BLACK, in his official

capacity as Member of the North Carolina State Board of Elections

Appeal pursuant to N.C.G.S. § 7A-27(b) from a final judgment and order

entered on 28 March 2022 by a three-judge panel in Superior Court, Wake County,

following transfer of the matter to the panel pursuant to N.C.G.S. § 1-267.1. On 4

May 2022, pursuant to N.C.G.S. § 7A-31(a) and (b)(2), the Supreme Court allowed

plaintiffs’ petition for discretionary review prior to determination by the Court of

Appeals. Heard in the Supreme Court on 2 February 2023.

Forward Justice, by Daryl Atkinson, Whitley Carpenter, Kathleen F. Roblez,

Ashley Mitchell, and Caitlin Swain; Arnold & Porter Kaye Scholer LLP, by R.

Stanton Jones and Elisabeth S. Theodore; and Protect Democracy Project, by

Farbod K. Faraji, for plaintiff-appellees.

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Opinion of the Court

Cooper & Kirk, PLLC, by Nicole J. Moss, David Thompson, Peter A. Patterson,

Joseph O. Masterman, and William V. Bergstrom; and K&L Gates, by Nathan

A. Huff, for defendant-appellants Legislative Defendants.

Tin, Fulton, Walker & Owen, PLLC, by Abraham Rubert-Schewel, for Cato

Institute and Due Process Institute, amici curiae.

Poyner Spruill LLP, by Caroline P. Mackie; and Karl A. Racine, Attorney

General for the District of Columbia, by Caroline S. Van Zile, Solicitor General,

for the District of Columbia and the States of California, Connecticut,

Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan,

Nevada, New Jersey, New York, Rhode Island, and Washington, amici states.

Law Offices of F. Bryan Brice, Jr., by Anne M. Harvey; and Proskauer Rose

LLP, by Lloyd B. Chinn and Joseph C. O’Keefe, for Institute for Innovation in

Prosecution at John Jay College, amicus curiae.

North Carolina Justice Center, by Sarah Laws, Laura Holland, and Quisha

Mallette, for the North Carolina Justice Center and Down Home NC, amici

curiae.

Patterson Harkavy LLP, by Paul E. Smith and Burton Craige, for the

Sentencing Project, the Lawyers’ Committee for Civil Rights Under Law, and

the Southern Poverty Law Center, amici curiae.

ALLEN, Justice.

Our state constitution ties voting rights to the obligation that all citizens have

to refrain from criminal misconduct. Specifically, it denies individuals with felony

convictions the right to vote unless their citizenship rights are restored “in the

manner prescribed by law.” N.C. Const. art. VI, § 2(3). No party to this litigation

disputes the validity of Article VI, Section 2(3) of the North Carolina Constitution.

This case is therefore not about whether disenfranchisement should be a consequence

of a felony conviction. The state constitution says that it must be, and we are bound

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by that mandate.

This case involves instead challenges to N.C.G.S. § 13-1, the statute that sets

out the criteria that felons must satisfy to be eligible for re-enfranchisement. In the

early 1970s, the General Assembly embarked on a series of reforms to section 13-1

and related statutory provisions. The first round of reforms eliminated complicated

petition-and-hearing procedure that had long hindered attempts by eligible felons to

regain their rights. The second round left us with essentially the version of section

13-1 in effect today, under which felons automatically regain the right to vote once

they complete their sentences, including any periods of probation, parole, or post-

release supervision to which they are subject.1

Nearly fifty years after the legislature rewrote section 13-1 to make re-

enfranchisement automatic for all eligible felons, plaintiffs filed suit alleging equal

protection and other state constitutional challenges to the requirement that felons

complete their probation, parole, or post-release supervision before they regain their

voting rights. In particular, plaintiffs alleged that the legislators who imposed this

1 “Probation” refers to a term of court-ordered supervision that eligible offenders may

serve in the community instead of in confinement. See generally N.C.G.S. ch. 15A, art. 82

(2021) (Probation). The term “parole” refers to the early release, subject to conditions, of

persons serving sentences of imprisonment for convictions of impaired driving under

N.C.G.S. § 20-138.1. N.C.G.S. § 15A-1370.1 (2021); see generally N.C.G.S. ch. 15A, art. 85

(Parole). Certain inmates whose crimes occurred before the Structured Sentencing Act took

effect on 1 October 1994 are also eligible for parole. “Post-release supervision” refers to a

“period of supervised release, similar to probation, that an inmate serves in the community

upon release from prison.” James M. Markham, The North Carolina Justice Reinvestment

Act 5 (UNC School of Government 2012); see generally N.C.G.S. ch. 15A, art. 84A (2021) (Post-

Release Supervision).

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requirement intended to discriminate against African Americans. To prove this claim,

plaintiffs introduced statistical evidence to show that African Americans constitute a

disproportionate share of felons on probation, parole, or post-release supervision.

Plaintiffs also argued that the requirement perpetuates the racist intent behind

nineteenth century laws enacted to disenfranchise or suppress the votes of African

Americans.

The trial court ruled in plaintiffs’ favor and entered an order allowing all felons

not in jail or prison to register and vote. In so doing, the trial court misapplied the

law and overlooked facts crucial to its ruling. The statistical evidence relied on by the

court does not establish that requiring felons to finish their sentences prior to re-

enfranchisement disproportionately affects African American felons. Moreover, the

trial court wrongly imputed the discriminatory views of nineteenth century

lawmakers to the legislators who made it easier for eligible felons of all races to regain

their voting rights. The changes to section 13-1 appear to have been undertaken in

good faith.

The evidence does not prove that legislators intended their reforms to section

13-1 in the early 1970s to disadvantage African Americans, nor does it substantiate

plaintiffs’ other constitutional claims. It is not unconstitutional to insist that felons

pay their debt to society as a condition of participating in the electoral process. We

therefore reverse the trial court’s final order and judgment.

I. Background

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Laws prohibiting persons convicted of felonies from voting have long been

common features of the American legal system. When the Fourteenth Amendment to

the United States Constitution was ratified in 1868, twenty-nine of the nation’s then

thirty-seven states had provisions in their state constitutions that either denied

felons the right to vote or allowed their respective legislatures to enact legislation to

that effect. Richardson v. Ramirez, 418 U.S. 24, 48 (1974). “Today, almost all States

disenfranchise felons in some way, although the recent trend is toward expanding

access to the franchise.” Jones v. Governor of Fla., 975 F.3d 1016, 1029 (11th Cir.

2020) (en banc).

North Carolina’s 1776 constitution did not prohibit felons from voting. Rather,

“the 1776 constitution . . . granted the franchise indiscriminately to all ‘freemen’ who

met the property qualification, including free blacks.” John V. Orth and Paul Martin

Newby, The North Carolina State Constitution 14 (2d ed. 2013) [hereafter State

Constitution].

In 1835 the citizens of North Carolina ratified a group of extensive

amendments to the 1776 constitution regulating elections and office-holding. John V.

Orth, North Carolina Constitutional History, 70 N.C. L. Rev. 1759, 1771 (1992)

[hereafter Constitutional History]. One noted the loss of citizenship rights by “any

person convicted of an infamous crime” but authorized the General Assembly to “pass

general laws regulating” the restoration of such rights. N.C. Const. of 1776, amends.

of 1835, art. I, § 4, cls. 3–4. Another amendment deprived free African Americans of

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the right to vote. N.C. Const. of 1776, amends. of 1835, art. I, § 3, cl. 3.

In 1841 the General Assembly enacted legislation providing for the restoration

of citizenship rights for persons convicted of infamous crimes. An Act Providing for

Restoring to the Rights of Citizenship Persons Convicted of Infamous Crimes, ch. 36,

§§ 1–6, 1841 N.C. Sess. Laws 68, 68–69. The legislation instituted a lengthy and

burdensome petition-and-hearing procedure for rights restoration. A petitioner had

to wait a minimum of four years after his conviction to file his petition. Id. § 3.

Notwithstanding where the petitioner resided, he had to file the petition in the

superior court of the county where he had been indicted. Id. § 4. The petition had to

set out the petitioner’s “conviction and the punishment inflicted,” as well as his

current residence, his occupation since conviction, and the “meritorious causes”

justifying the restoration of his rights. Id. § 1. The clerk of court then had to advertise

the substance of the petition at the courthouse door for three months prior to the

petitioner’s proposed hearing date. Id. At the hearing, the petition’s contents had to

be “proved” by “five respectable witnesses” who had known the petitioner for the three

years immediately preceding the petition’s filing date and who could confirm “his

character for truth and honesty.” Id. If the five witnesses supplied the necessary

character evidence and the court was “satisfied of the truth of the facts set forth in

the petition,” the court was to “decree [the petitioner’s] restoration to the lost rights

of citizenship.” Id.

Following the Civil War, North Carolinians ratified a new state constitution

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drafted by a convention held in compliance with federal Reconstruction legislation.

State Constitution at 19. The 1868 constitution removed all property qualifications

for voting and extended voting rights to all male citizens, regardless of race, who had

reached the age of twenty-one and satisfied certain residency requirements. N.C.

Const. of 1868, art. I, § 22 (eliminating property qualifications for voting); id. art. VI,

§ 1 (designating as an “elector” every male aged twenty-one or older who fulfilled

specified residency requirements). Although the 1868 constitution did not expressly

prohibit felons from voting, it repeated the “infamous crimes” language that had been

added to the 1776 constitution in 1835. Id. art. II, § 13.

In 1875 the General Assembly called a convention to propose amendments to

the 1868 constitution. An Act to Call a Convention of the People of North Carolina,

ch. 222, 1874–75 N.C. Sess. Laws 303, 303–05. Ratified by voters in 1876, the thirty

amendments approved by the convention contained several racially discriminatory

measures. One amendment banned interracial marriage between whites and African

Americans, N.C. Const. of 1868, amend. XXX of 1875, while another mandated

racially segregated schools, id. amend. XXVI. Other amendments that did not

mention race had the deliberate effect of reducing the political influence of African

Americans. One such amendment restored the General Assembly’s power to appoint

local government officials. See id. amend. XXV. “[A]s was well understood,” the

purpose of that amendment “was to block control of local government in the eastern

counties by blacks who were in the majority there.” State Constitution at 26.

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The 1875 amendments contained the state’s first constitutional provision

expressly denying the franchise to individuals convicted of felonies. Under that

provision, “no person . . . adjudged guilty of [a] felony, or of any other crime infamous

by the laws of this State” could vote without first having been “restored to the rights

of citizenship in a mode prescribed by law.” N.C. Const. of 1868, amend. XXIV of 1875.

In 1877 the General Assembly criminalized voting by felons whose rights had not

been restored.2 An Act to Regulate Elections, ch. 275, §§ 10, 62, 1877 N.C. Sess. Laws

516, 519–20, 537. The 1877 law did not articulate the steps that felons had to follow

to have their citizenship rights restored, so the procedures set out in the 1841 rights

restoration legislation remained in place, including the four-year waiting period and

the petition-and-hearing requirements.

Between 1897 and 1941, the General Assembly enacted legislation that relaxed

some of the rules for petitions filed by felons seeking restoration of their citizenship

rights. See, e.g., An Act to Amend Section 2940 of the Code in Reference to Restoration

of Citizenship, ch. 110, § 1, 1897 N.C. Sess. Laws 155, 155–56 (allowing a petitioner

to file in the county of indictment or county of residence). Some of the enactments

reduced the waiting period for felons in designated categories. See, e.g., An Act to

Amend Section Two Thousand Nine Hundred and Forty-One of the Code, and to

Facilitate the Restoration to the Rights of Citizenship in Certain Cases, ch. 44, § 1,

2 It remains a crime for any felon whose rights have not been restored to vote in a

primary or general election. N.C.G.S. § 163-275(5) (2021).

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1899 N.C. Sess. Laws 139, 139 (shortening to one year the waiting period after

conviction when the petitioner (1) had not been sentenced to a term of imprisonment

and (2) had been pardoned by the Governor); An Act to Amend Chapter 44, Acts of

1899, and to Facilitate the Restoration to the Rights of Citizenship in Certain Cases,

ch. 547, § 2, 1905 N.C. Sess. Laws 553, 554 (allowing a petitioner to file at any time

after conviction and without alleging or proving a pardon if the court suspended

judgment); An Act to Provide for the Return of Rights of Citizenship to Offenders

Committed to Certain Training Schools, ch. 384, § 1, 1937 N.C. Sess. Laws 713, 713

(reducing to one year after discharge the waiting period for felons committed to

certain “training schools”). In 1933, the legislature replaced the requirement that

felons wait four years after conviction to file their petitions with a requirement that

they wait two years after being discharged. An Act to Amend Consolidated Statutes

with Reference to Restoration to Citizenship, ch. 243, § 1, 1933 N.C. Sess. Laws 370,

370.

By 1969 the General Assembly had codified the rules for the restoration of

felons’ citizenship rights as Chapter 13 of our General Statutes. N.C.G.S. § 13-1

(1969) (repealed 1971). On 2 July 1969, the General Assembly passed legislation to

submit what became our current state constitution to the electorate for approval. An

Act to Revise and Amend the Constitution of North Carolina, ch. 1258, 1969 N.C.

Sess. Laws 1461. Voters ratified the new constitution in the 1970 general election,

and it went into effect on 1 July 1971.

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The 1971 constitution continues our state’s general prohibition against voting

by felons:

No 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, shall be permitted to vote unless that person

shall be first restored to the rights of citizenship in the

manner prescribed by law.

N.C. Const. art. VI, § 2(3). The text of Article VI, Section 2(3) tracks that of the

corresponding 1876 amendment, though there are differences. Article VI, Section 2(3)

does not refer to infamous crimes. It encompasses not just individuals convicted of

felonies under our state’s laws but also persons convicted of felonies under federal

law or, if the conduct would have been felonious here, convicted of felonies in other

states. Id.

During the 1971 legislative session, Representatives Joy Johnson of Robeson

County and Henry Frye of Guilford County3—then the only African American

members of the General Assembly—introduced a bill to amend Chapter 13 of the

General Statutes.4 In its original form, the bill provided for the automatic restoration

of citizenship rights for any felon “upon the full completion of his sentence or upon

[his] receiving an unconditional pardon.” A legislative committee amended the bill to

3 Representative Henry Frye subsequently served as an Associate Justice and then as

Chief Justice of this Court.

4 The trial court’s final judgment and order states that Representatives Johnson and

Frye both introduced the bill to amend Chapter 13. However, the copy of the bill in the record

names only Representative Johnson as a sponsor.

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remove the word “automatically” and to clarify that the phrase “full completion of his

sentence” included “any period of probation or parole.” The final form of the bill

passed into law by the legislature in 1971 repealed Chapter 13 “in its entirety” and

enacted “a new Chapter 13.” An Act to Amend Chapter 13 of the General Statutes to

Require the Automatic Restoration of Citizenship to Any Person Who Has Forfeited

Such Citizenship Due to Committing a Crime and has Either Been Pardoned or

Completed His Sentence, ch. 902, § 1, 1971 N.C. Sess. Laws 1421, 1421.

The new Chapter 13 did not make rights restoration automatic, but it did

dramatically streamline the process, largely by eliminating the petition-and-hearing

requirements. Under N.C.G.S. § 13-1, anyone convicted of a felony became eligible for

rights restoration if (1) the Department of Correction recommended restoration at the

time of release, (2) the individual received an unconditional pardon, or (3) “two years

ha[d] elapsed since [the person’s] release by the Department of Correction, including

probation or parole.” Id. Once any of the three conditions was met, the eligible felon

could regain his citizenship rights by going “before any judge of the General Court of

Justice in Wake County or in the county where [the felon] reside[d] or in which [the

felon] was last convicted” and taking an oath verifying compliance with section 13-1

and pledging loyalty and obedience to “the Constitution and laws of the United States,

and the Constitution and laws of North Carolina not inconsistent therewith.” Id.

In 1973 Representatives Johnson and Frye, joined by a new African American

legislator, Representative (later Senator) Henry Michaux Jr., tried again to make the

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restoration of citizenship rights automatic for some felons. Their bill as introduced

amended section 13-1 to make rights restoration automatic “[u]pon the unconditional

discharge of an inmate by the Department of Correction or Department of Juvenile

Correction, of a probationer by the Probation Commission, or of a parolee by the

Board of Paroles[,] . . . [o]r upon [a felon’s] receiving an unconditional pardon.” The

version of the bill ultimately passed by the General Assembly did not differ materially

from the initial bill. See An Act to Provide for the Automatic Restoration of

Citizenship, ch. 251, § 1, 1973 N.C. Sess. Laws 237, 237–38.

The few changes that the legislature has made to section 13-1 since 1973 have

no bearing on the issues raised in this litigation. In its current form, section 13-1

reads as follows:

Any person convicted of a crime, whereby the rights of

citizenship are 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, or of a parolee by the agency of the

State having jurisdiction of that person or of a

defendant under a suspended sentence by the

court.

(2) The unconditional pardon of the offender.

(3) The satisfaction by the offender of all conditions

of a conditional pardon.

(4) With regard to any person convicted of a crime

against the United States, the unconditional

discharge of such person by the agency of the

United States having jurisdiction of such person,

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the unconditional pardon of such person or the

satisfaction by such person of a conditional

pardon.

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

another state, the unconditional discharge of

such person by the agency of that state having

jurisdiction of such person, the unconditional

pardon of such person or the satisfaction by such

person of a conditional pardon.

N.C.G.S. § 13-1 (2021). The parties to this litigation agree that subsection (1) of

section 13-1 renders persons convicted of felonies in our state courts ineligible for

rights restoration until they have finished any applicable period of probation, parole,

or post-release supervision (collectively, felony supervision).

Plaintiffs consist of four nonprofit organizations (plaintiff-organizations) that

work with or advocate for persons involved with the criminal justice system and six

individuals with felony convictions (plaintiff-felons) who are unable to vote while on

felony supervision. On 20 November 2019, plaintiffs filed suit against defendants in

their official capacities challenging section 13-1 as facially unconstitutional under

various provisions of our state constitution.5 Specifically, plaintiffs alleged that

section 13-1 is unconstitutional in that it violates (1) the Equal Protection Clause in

Article I, Section 19 by discriminating against African Americans in intent and effect;

5 Defendants Timothy K. Moore, Speaker of the North Carolina House of

Representatives, and Philip E. Berger, President Pro Tempore of the North Carolina Senate,

are pursuing this appeal. Plaintiffs’ lawsuit also named as defendants the North Carolina

State Board of Elections and members of the same, but none of those defendants appealed

the trial court’s order.

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(2) the Equal Protection Clause in Article I, Section 19 and the Property

Qualifications Clause in Article I, Section 11 by conditioning the restoration of

citizenship rights on the ability to pay court costs, fines, or restitution; (3) the Equal

Protection Clause in Article I, Section 19 by depriving convicted felons of the

“fundamental right” to vote on “equal terms” and with “substantially equal voting

power”; and (4) the Free Elections Clause in Article I, Section 10 by producing

elections that do not reflect the will of the people.6

Pursuant to N.C.G.S. § 1-267.1, the Chief Justice assigned the case to a three-

judge panel in the Superior Court, Wake County. With one judge dissenting in part,

the trial court granted partial summary judgment and a preliminary injunction in

favor of plaintiffs, finding that section 13-1 “condition[s] the restoration of the right

to vote on the ability to make financial payments” in violation of the Equal Protection

Clause and the Property Qualifications Clause. On 28 March 2022, following a trial

on the remaining claims, the court in another two-to-one decision issued a final

judgment and order ruling that section 13-1 discriminates against African Americans

and deprives felons of the fundamental right to vote in violation of the Equal

Protection Clause and results in elections that do not reflect the will of the people

contrary to the Free Elections Clause. The trial court issued a permanent injunction

6 Plaintiffs likewise challenged section 13-1 under Article I, Sections 12 (right of

assembly and petition) and 14 (freedom of speech and press). The trial court granted

summary judgment in favor of defendants on those claims, and plaintiffs did not appeal that

ruling.

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under which any person otherwise eligible to vote and “not in jail or prison for a felony

conviction . . . may lawfully register and vote in North Carolina.” Defendants timely

appealed.

On 26 April 2022, a split panel of the Court of Appeals issued a partial writ of

supersedeas, staying the trial court’s injunction for the “elections on 17 May 2022 and

26 July 2022.” The panel also ordered the State Board of Elections “to take actions to

implement” the trial court’s order “for subsequent elections.” On 4 April 2022, and in

accordance with N.C.G.S. § 7A-31, plaintiffs filed in this Court a petition for

discretionary review prior to a determination by the Court of Appeals. This Court

allowed the petition on 4 May 2022.

II. Jurisdiction

Defendants argue that plaintiffs lack standing to dispute the constitutionality

of section 13-1. “Standing refers to whether a party has a sufficient stake in an

otherwise justiciable controversy such that he or she may properly seek adjudication

of the matter.” Am. Woodland Indus. v. Tolson, 155 N.C. App. 624, 626, 574 S.E.2d

55, 57 (2002). “A plaintiff must establish standing in order to assert a claim for relief.”

United Daughters of the Confederacy v. City of Winston-Salem, 383 N.C. 612, 625, 881

S.E.2d 32, 44 (2022). We must therefore address defendants’ standing arguments

before we may reach the substance of the trial court’s rulings.

Defendants contend that plaintiffs lack standing because (1) plaintiffs have

“challenged the wrong law” and (2) plaintiffs’ claims are not judicially redressable. In

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support of their first argument, defendants point out that plaintiffs have been

disenfranchised by Article VI, Section 2(3) of the North Carolina Constitution, not by

section 13-1, which merely sets out the “manner prescribed by law” for felon re-

enfranchisement. With respect to their redressability argument, defendants maintain

that, since only the legislature has the power to define the rights restoration process

for persons disenfranchised under Article VI, Section 2(3), a final judgment striking

down section 13-1 would not open the door to voting by individuals on felony

supervision; rather, it would “close[ ] off the sole avenue by which a felon may regain

the franchise while leaving in place the constitutional provision that strips it away in

the first place.” Hence, as defendants see things, the real impact of a final judgment

in plaintiffs’ favor would be to deny to all felons whose rights have not yet been

restored any path to regaining the franchise.

Plaintiffs insist that they do have standing to challenge the constitutionality

of section 13-1 because that statute “prevents people from registering and voting as

long as they are on felony probation, parole, or post-release supervision.” Plaintiffs

argue that any rights restoration legislation enacted by the General Assembly

pursuant to Article VI, Section 2(3) “must comport with all other provisions of the

North Carolina Constitution.” They further contend that the remedy ordered by the

trial court falls within the judiciary’s broad discretion to fashion equitable remedies

for constitutional violations. Plaintiffs cite decisions in which the Supreme Court of

the United States has ordered federal agencies to extend benefits to classes of persons

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that federal law unconstitutionally excluded. See, e.g., Califano v. Westcott, 443 U.S.

76, 92–93 (1979) (affirming a lower court’s order that a federal benefits program offer

the same financial support to dependent children of unemployed mothers that the

law provided for dependent children of unemployed fathers).

The standing requirements articulated by this Court are not themselves

mandated by the text of the North Carolina Constitution. See Comm. to Elect Dan

Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 599, 853 S.E.2d 698, 728 (2021)

(“[T]he ‘judicial power’ provision [in Article IV] of our Constitution imposes no

particular requirement regarding ‘standing’ at all.”). This Court has developed

standing requirements out of a “prudential self-restraint” that respects the

separation of powers by narrowing the circumstances in which the judiciary will

second guess the actions of the legislative and executive branches. Id.

When a plaintiff challenges the constitutionality of a statute, “[t]he ‘gist of the

question of standing’ is whether” the plaintiff “has ‘alleged such a personal stake in

the outcome of the controversy as to assure that concrete adverseness which sharpens

the presentation of issues upon which the court so largely depends for illumination of

difficult constitutional questions.’ ” Stanley v. Dep’t of Conservation and Dev., 284

N.C. 15, 28, 199 S.E.2d 641, 650 (1973) (quoting Flast v. Cohen, 392 U.S. 83, 99

(1968)). To ensure the requisite concrete adverseness, “a party must show they

suffered a ‘direct injury.’ The personal or ‘direct injury’ required in this context could

be, but is not necessarily limited to, ‘deprivation of a constitutionally guaranteed

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personal right or an invasion of his property rights.’ ” Forest, 376 N.C. at 607–08, 853

S.E.2d at 733 (citations omitted).

“[T]he rule requiring direct injury to challenge the constitutionality of a statute

is based on the rationale ‘that only one with a genuine grievance, one personally

injured by a statute, can be trusted to battle the issue.’ ” Id. at 594, 853 S.E.2d at 724.

(quoting Stanley, 284 N.C. at 28, 199 S.E.2d at 650). The direct injury criterion

applies even where, as here, a plaintiff assails the constitutionality of a statute

through a declaratory judgment action. See United Daughters, 383 N.C. at 629, 881

S.E.2d at 46–47 (“[P]laintiff is still required to demonstrate that it has sustained a

legal or factual injury arising from defendants’ actions as a prerequisite for

maintaining the present declaratory judgment action.”).

Defendants make plausible arguments in urging us to throw out plaintiffs’

lawsuit on standing grounds. The amended complaint repeatedly mischaracterizes

section 13-1 as “North Carolina’s felony disenfranchisement statute.” Section 13-1

does not disenfranchise anyone. Like other felons, plaintiff-felons had their right to

vote eliminated by Article VI, Section 2(3). Had the General Assembly not enacted

section 13-1 or some other statute providing for the restoration of their citizenship

rights, plaintiff-felons and all other felons in this state would be disenfranchised

permanently. See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that the

federal constitution’s Equal Protection Clause did not bar California from denying

the vote to felons who had completed their sentences and periods of parole).

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Moreover, the trial court may well have exceeded the bounds of its remedial

powers by ordering that all felons not in jail or prison be allowed to register and vote.

In depriving felons of the right to vote unless their citizenship rights have been

restored “in the manner prescribed by law,” Article VI, Section 2(3) unquestionably

assumes that the General Assembly—not the courts—will set the conditions for

rights restoration, and as discussed above, the legislature has declined to extend

automatic rights restoration to persons on felony supervision.

Despite the force of defendants’ standing arguments, we hold that plaintiff-

felons have standing to bring their claims against defendants. While it is true that

section 13-1 confers a statutory benefit that the General Assembly was under no legal

obligation to grant, it is also true that the legislature may not condition eligibility for

a statutory benefit on criteria that violate the North Carolina Constitution. See, e.g.,

Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (“Even a statutory benefit can

run afoul of the Equal Protection Clause . . . if it confers rights in a discriminatory

manner . . . . For instance, a state could not choose to re-enfranchise voters of only

one particular race . . . .”).

The amended complaint alleges that the General Assembly has imposed

unconstitutional conditions on the restoration of felons’ voting rights. For example,

the law makes payment of any court-ordered costs, fines, and restitution a condition

of probation. N.C.G.S. § 15A-1343(b)(9) (2021). If a felon is found to have violated this

condition, his time on probation—and thus his ineligibility to vote—can be extended.

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N.C.G.S. §§ 15A-1342(a) (2021), 15A-1344(a), (d) (2021). The amended complaint

asserts that, by tying a felon’s eligibility to vote to the completion of probation, section

13-1 “condition[s] the right to vote on whether people have a type of property—

money.” According to the amended complaint, this condition violates Article I, Section

11 of the state constitution, which provides that “no property qualification shall affect

the right to vote or hold office.” N.C. Const. art. I, § 11. We ultimately reject this

claim, but it does not follow that plaintiff-felons lacked standing to bring it or their

other constitutional claims. The amended complaint alleges that plaintiff-felons are

on felony supervision and subject to the allegedly unconstitutional re-

enfranchisement conditions of which they complain. Plaintiff-felons thus have been

“personally injured by [the] statute” and “can be trusted to battle the issue.” Stanley,

284 N.C. at 28, 199 S.E.2d at 650.

Furthermore, the constitutional violations alleged in the amended complaint

are redressable. The question of redressability turns not on whether a plaintiff can

obtain her preferred form of relief but on whether the law provides a remedy for the

plaintiff’s injury. See Lozano v. City of Hazleton, 620 F.3d 170, 192 (3d Cir. 2010)

(“Redressability . . . does not require that a court be able to solve all of a plaintiff’s

woes. Rather, [it] need only be able to redress, to some extent, the specific injury

underlying the suit.”), vacated and remanded for further consideration, 563 U.S. 1030

(2011), aff’d in part and rev’d in part on other grounds, 724 F.3d 297 (3d Cir. 2013).

The essence of the amended complaint’s claims is that section 13-1 attaches

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conditions to the restoration of citizenship rights that unlawfully distinguish between

felons based on race or wealth. A court order that simply struck down section 13-1

would leave plaintiff-felons and all other felons whose rights had not already been

restored in precisely the same position regardless of race or wealth: disenfranchised

without any avenue for re-enfranchisement. This outcome would not give plaintiff-

felons what they want, but it would halt the alleged violations of the North Carolina

State Constitution.

Although plaintiff-felons have standing, some plaintiff-organizations clearly do

not. For a legal entity other than a natural person to have standing, it or one of its

members “must suffer some immediate or threatened injury.” River Birch Assocs. v.

City of Raleigh, 326 N.C. 100, 129, 388 S.E.2d 538, 555 (1990). “An association may

have standing in its own right to seek judicial relief from injury to itself and to

vindicate whatever rights and immunities the association itself may enjoy.” Id.

(quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). Standing exists for an association

to bring a lawsuit on behalf of its members when “(a) its members would otherwise

have standing to sue in their own right; (b) the interests it seeks to protect are

germane to the organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.” Id.

at 130, 388 S.E.2d at 555 (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432

U.S. 333, 343 (1977)).

The amended complaint alleges that plaintiff-organizations Community

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Success Initiative, Justice Served N.C., Inc., and Wash Away Unemployment have

standing because they work to reintegrate into society “people who find themselves

entangled in the criminal justice system” and that section 13-1 forces them to redirect

some of their resources “to educate people, including people disenfranchised under

[section] 13-1, about their voting rights (or lack thereof).” Such vague allegations of

resource reallocation do not evince the kind of direct injury necessary for an

association acting in its own right to attack the constitutionality of a statute, nor do

they offer grounds to believe that section 13-1 infringes on any rights or immunities

that these three plaintiff-organizations may possess. Additionally, inasmuch as the

amended complaint does not allege that Community Success Initiative, Justice

Served N.C., Inc., and Wash Away Unemployment have any members who could

challenge section 13-1, they lack standing to sue on behalf of their members. See id.

Similarly, the amended complaint’s allegations concerning plaintiff-

organization North Carolina State Conference of the NAACP do not establish that it

has standing in its own right to dispute the validity of section 13-1. In language that

echoes the descriptions of “harm” allegedly suffered by other plaintiff-organizations,

the amended complaint alleges that the North Carolina NAACP “is currently forced

to divert organizational resources away from activities core to its mission in

furtherance of education and voter engagement efforts required to assist potential

voters . . . in understanding North Carolina’s felony-based disenfranchisement laws.”

Again, this vague allegation of resource reallocation does not identify a direct injury

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for standing purposes.

The amended complaint’s factual allegations are sufficient, however, to show

that the North Carolina NAACP qualifies under River Birch to sue on behalf of its

members. The amended complaint alleges that some of those members are ineligible

for re-enfranchisement under section 13-1. It ties the interest of those members in

regaining the franchise to the North Carolina NAACP’s “fundamental mission of . . .

advanc[ing] and improv[ing] . . . the political, civil, educational, social, and economic

status of minority groups.” Finally, because plaintiffs brought a declaratory judgment

action, it appears that the North Carolina NAACP can obtain relief for its members

without their participation in the lawsuit. See id. (“When an organization seeks

declaratory or injunctive relief on behalf of its members, ‘it can reasonably be

supposed that the remedy, if granted, will inure to the benefit of those members of

the association actually injured.’ ” (quoting Warth, 422 U.S. at 515)).

Plaintiff-felons and one plaintiff-organization have standing to pursue the

claims alleged in the amended complaint. Accordingly, we now take up defendants’

legal challenges to the merits of the trial court’s ruling.

III. Standard of Review

Whether made at summary judgment or at trial, a trial court’s ruling on the

constitutionality of a statute receives de novo review on appeal. State v. Whittington,

367 N.C. 186, 190, 753 S.E.2d 320, 323 (2014); Hart v. State, 368 N.C. 122, 130–31,

774 S.E.2d 281, 287 (2015). Under de novo review, this Court “ ‘considers the matter

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anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v.

Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of

Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). When the

trial court has conducted a trial without a jury, we examine whether the trial court’s

findings of fact support its conclusions of law. Blanton v. Blanton, 40 N.C. App. 221,

225, 252 S.E.2d 530, 533 (1979). “[T]he trial court’s findings of fact have the force and

effect of a jury verdict and are conclusive on appeal if there is competent evidence to

support them, even though the evidence could be viewed as supporting a different

finding.” In re Estate of Skinner, 370 N.C. 126, 139, 804 S.E.2d 449, 457 (2017)

(quoting Bailey v. State, 348 N.C. 130, 146, 500 S.E.2d 54, 63 (1998)).

We review permanent injunctions for abuse of discretion. See Roberts v.

Madison Cnty. Realtors Ass’n, 344 N.C. 394, 399, 474 S.E.2d 783, 787 (1996) (“When

equitable relief is sought, courts claim the power to grant, deny, limit, or shape that

relief as a matter of discretion.”). “A [trial] court by definition abuses its discretion

when it makes an error of law.” State v. Rhodes, 366 N.C. 532, 536, 743 S.E.2d 37, 39

(2013) (alteration in original) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

IV. Analysis

Given the number and complexity of the legal issues raised by the parties to

this appeal, we briefly review the fundamental principles that guide our inquiry when

an appeal squarely presents a state constitutional challenge to the validity of a

statute. One such principle is that we defer to legislation enacted by the General

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Assembly. See State ex rel. Martin v. Preston, 325 N.C. 438, 448, 385 S.E.2d 473, 478

(1989) (“Since our earliest cases applying the power of judicial review under the

Constitution of North Carolina, . . . we have indicated that great deference will be

paid to acts of the legislature . . . .”).

We defer to legislative enactments for at least two reasons. The first is the

status of legislative enactments in our constitutional order. In this state, “[a]ll

political power is vested in and derived from the people; all government of right

originates from the people, is founded upon their will only, and is instituted solely for

the good of the whole.” N.C. Const. art. I, § 2. Ordinarily, the people exercise this

sovereign power through their elected representatives in the General Assembly. State

ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21 S.E. 787, 787 (1895). This Court therefore

looks upon laws enacted by our General Assembly as expressions of the people’s will.

Preston, 325 N.C. at 448, 385 S.E.2d at 478. It follows that we may not strike down a

law unless it violates federal law or the supreme expression of the people’s will, the

North Carolina Constitution. See id. at 448–49, 385 S.E.2d at 478; see also State v.

Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944) (“The will of the people as

expressed in the Constitution is the supreme law of the land.”).

The second reason for deference is more practical. Almost by definition,

legislation involves the weighing and accommodation of competing interests, and “it

is the role of the legislature, rather than this Court, to balance disparate interests

and find a workable compromise among them.” Beaufort Cnty. Bd. of Educ. v.

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Beaufort Cnty. Bd. of Comm’rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009). When

a statute constitutes a permissible exercise of legislative authority, we must uphold

the statute regardless of whether we agree with the General Assembly’s public policy

choices. See In re Appeal of Philip Morris U.S.A., 335 N.C. 227, 231, 436 S.E.2d 828,

831 (1993) (“[T]he determination of whether a particular policy is wise or unwise is

for determination by the General Assembly.”); Martin v. N.C. Hous. Corp., 277 N.C.

29, 41, 175 S.E.2d 665, 671 (1970) (“[Q]uestions as to public policy are for legislative

determination.”). Put differently, “[t]his Court will only measure the balance struck

in the statute against the minimum standards required by the constitution.” Beaufort

Cnty. Bd. of Educ., 363 N.C. at 502, 681 S.E.2d at 280–81.

Consistent with the deference owed to legislative enactments, when this Court

is called upon to decide the constitutionality of a statute, we start with a strong

presumption of the statute’s validity. Am. Equitable Assurance Co. v. Gold, 249 N.C.

461, 462–63, 106 S.E.2d 875, 876 (1959); see also Hart, 368 N.C. at 131, 774 S.E.2d

at 287 (“We therefore presume that a statute is constitutional . . . .”). The burden is

on the party challenging the statute to demonstrate its unconstitutionality. Raleigh

Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 669, 174 S.E.2d 542, 548 (1970).

To prevail, the challenger must demonstrate that the law is unconstitutional beyond

a reasonable doubt. See Hart, 368 N.C. at 126, 774 S.E.2d at 284; see also Glenn v.

Bd. of Educ., 210 N.C. 525, 529–30, 187 S.E. 781, 784 (1936) (“If there is any

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reasonable doubt [as to a law’s constitutionality], it will be resolved in favor of the

lawful exercise of their powers by the representatives of the people.”).

Notwithstanding our deference to legislative enactments, when a challenger

proves the unconstitutionality of a law beyond a reasonable doubt, this Court will not

hesitate to pronounce the law unconstitutional and to vindicate whatever

constitutional rights have been infringed. Glenn, 210 N.C. at 529, 187 S.E. at 784; see

also Roller v. Allen, 245 N.C. 516, 518, 96 S.E.2d 851, 854 (1957) (“An Act will be

declared unconstitutional and its enforcement will be enjoined when it clearly

appears either that property or fundamental human rights are denied in violation of

constitutional guarantees.”); N.C. Real Est. Licensing Bd. v. Aikens, 31 N.C. App. 8,

11, 228 S.E.2d 493, 495 (1976) (“[T]he courts of this State have not hesitated to strike

down regulatory legislation [that is] repugnant to the State Constitution.” (citing

Roller, 245 N.C. 516, 96 S.E.2d 851; State v. Ballance, 229 N.C. 764, 51 S.E.2d 731

(1949); State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940))).

Plaintiffs have brought a facial challenge to section 13-1. In contrast to an as-

applied challenge, which “represents a plaintiff’s protest against how a statute was

applied in the particular context in which plaintiff acted or proposed to act,” Town of

Beech Mountain v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 460, 786

S.E.2d 335, 347 (2016) (quoting Frye v. City of Kannapolis, 109 F. Supp. 2d 436, 439

(M.D.N.C. 1999)), a facial challenge “is an attack on a statute itself as opposed to a

particular application,” Holdstock v. Duke Univ. Health Sys., Inc., 270 N.C. App. 267,

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272, 841 S.E.2d 307, 311 (2020) (quoting City of L.A. v. Patel, 576 U.S. 409, 415

(2015)). “[A] facial challenge to the constitutionality of an act . . . is the most difficult

challenge to mount successfully.” Hart, 368 N.C. at 131, 774 S.E.2d at 288. To

establish the unconstitutionality of a statute beyond a reasonable doubt on a facial

challenge, “[a] party must show that there are no circumstances under which the

statute might be constitutional.” Beaufort Cnty. Bd. of Educ., 363 N.C. at 502, 681

S.E.2d at 280 (emphasis added). “The fact that a statute ‘might operate

unconstitutionally under some conceivable set of circumstances is insufficient to

render it wholly invalid.’ ” State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282

(1998) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

Of course, this Court cannot properly evaluate a challenge to the

constitutionality of a statute without understanding the meaning of the

constitutional provision at issue. Our interpretive endeavor begins with the text of

the provision. “[W]here the meaning is clear from the words used, we will not search

for a meaning elsewhere.” Preston, 325 N.C. at 449, 385 S.E.2d at 479. If the text does

not resolve the matter, we examine the available historical record in an effort to

isolate the provision’s meaning at the time of its ratification. See Sneed v. Greensboro

City Bd. of Educ., 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980) (“Inquiry must be

had into the history of the questioned provision and its antecedents, the conditions

that existed prior to its enactment, and the purposes sought to be accomplished by its

promulgation.”). We also seek guidance from any on-point precedents from this Court

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interpreting the provision. Elliott v. State Bd. of Equalization, 203 N.C. 749, 753, 166

S.E. 918, 921 (1932). With these fundamental principles in mind, we now direct our

attention to the constitutional issues raised by this appeal.

A. Racial Discrimination

The trial court concluded that “[s]ection 13-1’s denial of the franchise to people

on felony supervision” unconstitutionally discriminates against African Americans in

“intent and effect” and “denies [them] substantially equal voting power on the basis

of race” in violation of our state constitution’s Equal Protection Clause. Defendants

argue that this Court should reverse the trial court because “[s]ection 13-1’s historical

background demonstrates definitively that the law as it currently stands was not

motivated by racial discrimination.” Plaintiffs urge us to affirm the trial court,

contending that section 13-1 is the successor to earlier felon voting legislation

designed to discriminate against African Americans; that the passage of time did not

purge section 13-1 of that racially discriminatory intent; and that the General

Assembly’s refusal in the 1970s to extend the franchise to individuals on felony

supervision “was independently motivated by racism.”

“The civil rights guaranteed by the Declaration of Rights in Article I of [the

North Carolina] Constitution are individual and personal rights entitled to protection

against state action . . . .” Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276,

289 (1992). Article I, Section 19 reads in part: “No person shall be denied the equal

protection of the laws; nor shall any person be subjected to discrimination by the

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State because of race, color, religion, or national origin.” N.C. Const. art I, § 19.

Because the text of this provision does not tell us how to analyze plaintiffs’ claims of

racial discrimination, we turn to the provision’s historical context and pertinent

caselaw for assistance.

Unlike most other provisions in Article I, which “may be traced back through

[this state’s] 1868 constitution to [its] Revolutionary Constitution of 1776[,]” State

Constitution at 45, the Equal Protection Clause and the Nondiscrimination Clause in

Article I, Section 19 did not become part of our fundamental law until 1971, when the

current state constitution went into effect. The drafters of the two clauses based their

work on the Equal Protection Clause in the Fourteenth Amendment to the United

States Constitution and on federal nondiscrimination laws. Id. at 68. Accordingly,

“[t]his Court’s analysis of the State Constitution’s Equal Protection Clause generally

follows the analysis of the Supreme Court of the United States in interpreting the

corresponding federal clause.” Blankenship v. Bartlett, 363 N.C. 518, 522, 681 S.E.2d

759, 762 (2009). “However, in the construction of the provision of the State

Constitution, the meaning given by the Supreme Court of the United States to even

an identical term in the Constitution of the United States is, though highly

persuasive, not binding upon this Court.”7 Bulova Watch Co. v. Brand Distribs. of N.

Wilkesboro, Inc., 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974).

7 Of course, this Court must follow Supreme Court precedent when we interpret

provisions of the United States Constitution.

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Section 13-1 makes no reference to race and thus appears to be race neutral.

Yet even an apparently race-neutral statute can violate equal protection if enacted

with a racially discriminatory purpose. See Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or

purpose is required to show a violation of the Equal Protection Clause.”).

Decisions by the Supreme Court of the United States describe a burden-

shifting framework that federal courts must employ when a plaintiff alleges that an

apparently race-neutral law was motivated by a racially discriminatory purpose

contrary to the Fourteenth Amendment’s Equal Protection Clause. Under that

framework, “the burden of proof lies with the challenger, not the State.” Abbott v.

Perez, 138 S. Ct. 2305, 2324 (2018). Moreover, the court must approach any evidence

introduced by the plaintiff with a presumption that the legislature acted in good faith.

See Miller v. Johnson, 515 U.S. 900, 915 (1995) (“[T]he good faith of a state legislature

must be presumed . . . .”).

To overcome the presumption of good faith and carry the burden of proof, the

plaintiff must almost always do more than show that the statute “produces

disproportionate effects along racial lines.”8 Hunter v. Underwood, 471 U.S. 222, 227

8 In rare cases, statistical evidence alone can establish discriminatory intent.

McCleskey v. Kemp, 481 U.S. 279, 293–94 (1987) (“[S]tatistical proof normally must present

a ‘stark’ pattern to be accepted as the sole proof of discriminatory intent under the

Constitution . . . .” (quoting Arlington Heights, 429 U.S. at 266)). Here, however, plaintiffs do

not argue that the statistical evidence presented at trial suffices to prove an equal protection

violation.

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(1985); see also Arlington Heights, 429 U.S. at 264–65 (“[O]fficial action will not be

held unconstitutional solely because it results in a racially disproportionate impact.”).

In its Arlington Heights decision, the Supreme Court identified other, nonexclusive

factors that can support federal equal protection challenges to ostensibly race-neutral

government actions: (1) the historical background of an action; (2) the legislative or

administrative history of an action; and (3) deviations from normal procedures.

Arlington Heights, 429 U.S. at 267–68.

If the plaintiff proves that racial discrimination motivated the legislature, “the

burden shifts to the law’s defenders[,]” Hunter, 471 U.S. at 228, and “judicial

deference [to the legislature] is no longer justified[,]” Arlington Heights, 429 U.S. at

266. To avoid defeat on the plaintiff’s federal equal protection claim at that point, the

defenders must show that the statute would have been enacted even if the legislature

had not intended to discriminate on racial lines. Hunter, 471 U.S. at 228.

Here, the parties and the trial court assumed that the Supreme Court’s

burden-shifting framework applies to plaintiffs’ racial discrimination claims. We are

not bound by their assumption, however. See Baxley v. Nationwide Mut. Ins. Co., 104

N.C. App. 419, 422, 410 S.E.2d 12, 14 (1991) (“Generally, parties may stipulate as to

matters which involve individual rights and obligations of the parties but may not

stipulate as to what the law is.”), aff’d, 334 N.C. 1, 430 S.E.2d 895 (1993). When

resolving claims that a facially neutral law discriminates against persons of a

particular race in violation of our state Equal Protection Clause, we are free to depart

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from the federal burden-shifting framework if we deem it incompatible with the

principles that guide our review of state constitutional challenges to the validity of

statutes. Nonetheless, applying that framework to this case solely for the sake of

argument, we hold that the trial court erred in ruling that section 13-1 unlawfully

discriminates based on race. The court misapplied the framework to the evidence by

ignoring Supreme Court precedent that should have informed its approach.

Furthermore, and contrary to the court’s findings of fact and conclusions of law, the

available evidence does not show that racial discrimination inspired the General

Assembly to require that felons complete their felony supervision before they regain

the right to vote.

1. Trial Court’s Findings of Discriminatory Intent not Binding

The trial court committed legal error by failing to apply the presumption of

legislative good faith to the General Assembly’s 1971 enactment of a new section 13-

1 and 1973 amendments to the same. That presumption applied notwithstanding the

lamentable catalogue of measures adopted by legislators in times past for the purpose

of disenfranchising African Americans. See Abbott, 138 S. Ct. at 2324 (“The allocation

of the burden of proof and the presumption of legislative good faith are not changed

by a finding of past discrimination.”). Rather than presuming good faith, the trial

court assumed that past discrimination infected the 1971 and 1973 felon voting

legislation because “[t]he legislature cannot purge through the mere passage of time

an impermissibly racially discriminatory intent.” As explained below, this is precisely

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the kind of error criticized by the Supreme Court of the United States in Abbott.

Inasmuch as the trial court did not presume legislative good faith, its findings

of fact concerning the discriminatory intent allegedly infecting section 13-1 are not

binding on appeal. See id. at 2326 (“[W]hen a finding of fact is based on the application

of an incorrect burden of proof, the finding cannot stand.” (citing Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984) (referring to “an appellate

court’s power to correct errors of law, including those that may infect a so-called

mixed finding of law and fact, or a finding of fact that is predicated on a

misunderstanding of the governing rule of law”))).

2. Arlington Heights Factors

Serious defects in its treatment of the Arlington Heights factors led the trial

court to the erroneous conclusion that section 13-1 embodies an unconstitutional

legislative intent to suppress the votes of African Americans. The evidence

corresponding to each factor should have led the trial court to render judgment in

favor of defendants.

a. Disproportionate Impact

“Determining whether invidious discriminatory purpose was a motivating

factor demands a sensitive inquiry into such circumstantial and direct evidence of

intent as may be available. The impact of the official action—whether it bears more

heavily on one race than another—may provide an important starting point.”

Arlington Heights, 429 U.S. at 266 (internal quotation marks and citation omitted).

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According to the trial court, the statistical evidence presented by plaintiffs

reveals that “North Carolina’s denial of the franchise [to those] on felony . . .

supervision disproportionately affects African Americans by wide margins.” At the

statewide level, “African Americans comprise 21% of North Carolina’s voting-age

population, but over 42% of those denied the franchise due to felony . . . supervision

from a North Carolina state court conviction alone. . . . In comparison, White people

comprise 72% of the voting-age population, but only 52% of those denied the

franchise.” Moreover, “[i]n total, 1.24% of the entire African American voting-age

population in North Carolina are denied the franchise due to felony . . . supervision,

whereas only 0.45% of the White voting-age population are denied the franchise.” The

result is that African Americans are “denied the franchise at a rate 2.76 times as high

as the rate of the White population.”

The trial court likewise found that “[e]xtreme racial disparities in denial of the

franchise to persons on [felony] supervision also exist at the county level.” For

instance, “[i]n 77 counties, the rate of African Americans denied the franchise due to

felony . . . supervision is high (more than 0.83% of the African American voting-age

population), whereas there are only 2 counties where the rate of African American

disenfranchisement is low (less than 0.48% of the African American voting-age

population).” On the other hand, “the rate of White disenfranchisement is high in

only 10 counties, while the rate of White disenfranchisement is low in 53 counties.”

Indeed, “[a]mong the 84 counties where there is sufficient data for comparison,

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African Americans are denied the franchise due to felony . . . supervision at a higher

rate than White people in every single county.” With respect to felony convictions in

our state courts, “the percentage [in 44 counties] of the African American voting-age

population that is denied the franchise due to [felony] supervision . . . is more than

three times greater than the comparable percentage of the White population.” Taken

together, in the trial court’s view, the statewide data and county-level data show that

“North Carolina’s denial of the franchise to persons on felony . . . supervision has an

extreme disparate impact on African American people.”

The trial court’s disparate impact analysis suffers from at least two major

flaws. First, the court incorrectly held section 13-1 responsible for the

disenfranchisement of individuals on felony supervision. Like other felons, felons in

that category have been disenfranchised by Article VI, Section 2(3) of the state

constitution, not by section 13-1. If the General Assembly were to repeal section 13-1

tomorrow, Article VI, Section 2(3) would still exclude anyone on felony supervision

from the electoral process. Affording the trial court the benefit of the doubt, we

assume it meant that the criteria imposed by section 13-1 for felon re-enfranchisement

operate to the peculiar disadvantage of African Americans.

Second, the trial court erred by not making any findings concerning the racial

makeup of the overall felon population. Absent such findings, the court could not

determine whether section 13-1 affects African American felons differently than

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white felons.9 Defendants’ expert witness, Dr. Keegan Callanan, stated that African

Americans constitute forty-two percent of the total felon population. The trial court

found that, despite his expertise in the “broad field of political science,” Dr. Callanan

lacked expertise in the “particular issues” presented by this case and thus that his

opinions were entitled to “no weight.” The percentage of felons who are classified as

African Americans is not a matter of opinion, however, and none of plaintiffs’ experts

disputed the forty-two percent figure.

On its face, the fact that African Americans make up about forty-two percent

of the felon population seems to account for the disproportionate share (forty-two

percent) of African Americans on felony supervision. In other words, the trial court’s

findings provide no reason to believe that section 13-1 re-enfranchises African

American felons at a rate that differs from the re-enfranchisement rate for white

felons.10

9 The dissent contends that our reasoning could have been employed by defenders of

the poll tax to argue that, since “African Americans were disproportionately poor . . . wealth

inequality, rather than laws implementing poll taxes, was to blame for the disproportionate

number of African Americans barred from voting.” The dissent misapprehends our position.

We do not hold that a court must refuse to credit a plaintiff’s disparate impact showing unless

the plaintiff can also prove that race alone accounts for the disparity. Rather, we point out

that the trial court should have compared the percentages of African American felons and

white felons ineligible for re-enfranchisement under section 13-1 with the racial makeup of

the total felon population because, unlike the poll tax that all would-be voters had to pay,

section 13-1’s scope is limited to individuals with felony convictions.

10 Our disparate impact analysis might have come out differently if, for instance, the

evidence had shown that African American felons are significantly more likely than white

felons to be placed on felony supervision and thus to be ineligible for re-enfranchisement

under section 13-1. On those facts, plaintiffs would have had a credible argument that section

13-1 disproportionately affects African American felons.

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Interestingly, if the statistics cited by the trial court amount to proof of

disparate impact, the court’s own remedy becomes vulnerable to equal protection

objections. Since a disproportionately large percentage of felons are African

American, it stands to reason that African Americans constitute a disproportionate

share of felons currently incarcerated. Thus, if we accept the trial court’s logic,

extending the franchise to persons on felony supervision but not to felons in jail or

prison would almost certainly have a disparate impact on African Americans. It may

be that the only practical way to avoid this kind of “disparate impact” is to allow all

felons to vote. Were we to construe the Equal Protection Clause in Article I, Section

19 to require such a solution, we would essentially hold that the felon voting

prohibition in Article VI, Section 2(3) violates Article I, Section 19. Because we must

give effect to both provisions, we may not adopt that interpretation. See Leandro v.

State, 346 N.C. 336, 352, 488 S.E.2d 249, 258 (1997) (“Plaintiffs are essentially

reduced to arguing that one section of the North Carolina Constitution violates

another. It is axiomatic that the terms or requirements of a constitution cannot be in

violation of the same constitution—a constitution cannot violate itself.”).

The trial court’s findings of fact do not support its ultimate finding that section

13-1 has a disproportionate impact on African Americans. Undisputed evidence in

the record but ignored by the trial court undermines the court’s position. Accordingly,

the trial court’s disparate impact finding cannot be relied upon to sustain its

conclusion that the General Assembly enacted a new section 13-1 in 1971 and then

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amended it in 1973 with the intent of discriminating against African Americans.

b. Historical Background

The “historical background” of a legislative enactment is relevant to

discriminatory motive determinations, “particularly if it reveals a series of official

actions taken for invidious purposes.” Arlington Heights, 429 U.S. at 267. The trial

court’s order contains extensive findings about the efforts of many white North

Carolinians in the nineteenth century to manipulate the legal system to exclude

African Americans from the political process. For example, the order discusses an

“extensive campaign” in the late 1860s by “White former Confederates” to “convict[ ]

African American men of petty crimes en masse and whip[ ] them to disenfranchise

them ‘in advance’ of the Fifteenth Amendment.” (At the time, receiving an “infamous

punishment,” such as a public whipping, could disqualify someone from voting.)

According to the trial court’s order, an 1867 article in the National Anti-Slavery

Standard reported that “in all country towns the whipping of Negroes is being carried

on extensively,” the motive being “to guard against their voting in the future.”

Regarding the 1876 constitutional ban on felon voting and the corresponding 1877

felon voting legislation, the trial court found that “[t]he goal of the felony

disenfranchisement regime established in 1876 and 1877, including the 1877

expansion of the onerous 1840 [sic] rights restoration regime to apply to all felonies,

was to discriminate against and disenfranchise African American people.”

Far from denying the incontrovertible record of racism that mars the history

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just described, defendants’ legal counsel conceded at trial:

The plaintiffs here presented a lot of evidence; much of it,

if not all of it, all of it, troubling and irrefutable. You can’t

— I can’t say anything about a newspaper report that says

what it says. I can’t say anything about the history that is

in the — in the archives. What I can say is that the

evidence . . . presented certainly demonstrates a shameful

history of our state’s use of laws, and with regard to voting

in particular, to suppress the African American population.

That I can’t — I can’t contest that. We never tried to contest

that.

The trial court’s historical findings say little about the period between 1877

and 1971, the year in which Representatives Johnson and Frye introduced their first

proposal to reform the procedures for the restoration of felons’ citizenship rights.

According to the trial court, “[b]etween 1897 and 1970, the legislature made various

small adjustments to the procedure for restoration of rights and recodified that law

at N.C.G.S. § 13-1, but the substance of the law was largely unchanged.” The court’s

order does remark that, while “the requirements for rights restoration were slightly

relaxed . . . during th[e] period [between 1877 and 1971], none of those changes were

likely to help African American people, who had been ‘effectively’ disenfranchised by

this time ‘by other means,’ including North Carolina’s poll tax and literacy test

established in 1899.”

The pre-1971 events recounted in the trial court’s order, along with much of

the history summarized at the beginning of this opinion, paint a profoundly troubling

portrait of a legal system used time and again to deny African Americans a voice in

government by banning or restricting their participation in elections. Yet it is not

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those deplorable measures that are in dispute. Plaintiffs have challenged section 13-

1 as enacted in 1971 and amended in 1973. The question therefore is whether the

trial court rightly understood the relevance of the pre-1971 history to its deliberations

on the constitutionality of section 13-1.

The conclusions of law in the trial court’s order indicate that the pre-1971

history of felon voting laws in North Carolina was a substantial factor in the outcome.

The order asserts that “[t]he legislature cannot purge through the mere passage of

time an impermissibly racially discriminatory intent.” As legal authority for the

importance that it assigns to pre-1971 events, the order cites the 1985 decision of the

Supreme Court of the United States in Hunter v. Underwood, 471 U.S. 222 (1985).

There, the plaintiffs brought an equal protection challenge to a provision in the 1901

Alabama Constitution that disenfranchised persons convicted of certain crimes, some

of them minor offenses. Id. at 226–29. The evidence overwhelmingly showed that the

constitutional convention at which the provision had been adopted “was part of a

movement that swept the post-Reconstruction South to disenfranchise blacks.” Id. at

229. In his opening remarks, the convention’s president publicly announced that the

goal of the 1901 convention was “to establish white supremacy” in Alabama “within

the limits imposed by the Federal Constitution.” Id. Additionally, “the crimes selected

for inclusion in [the 1901 felon voting provision] were believed by the delegates to be

more frequently committed by blacks.” Id. at 227. Influenced by those facts and the

provision’s ongoing discriminatory impact on African Americans, the Supreme Court

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held that the provision violated the federal Equal Protection Clause. Id. at 233. The

Court expressly declined to decide, though, whether the provision “would be valid if

enacted today without any impermissible motivation.” Id.

The Hunter decision is plainly not on point. Unlike Hunter, this case does not

concern the constitutionality of a now 122-year-old provision adopted at a proceeding

held for the avowed purpose of ensuring white supremacy. As previously observed,

the General Assembly in 1971 repealed Chapter 13 of the General Statutes “in its

entirety” and enacted “a new Chapter 13” with a new section 13-1. An Act to Amend

Chapter 13 of the General Statutes to Require the Automatic Restoration of

Citizenship to Any Person Who Has Forfeited Such Citizenship Due to Committing a

Crime and has Either Been Pardoned or Completed His Sentence, ch. 902, § 1, 1971

N.C. Sess. Laws 1421, 1421. The new Chapter 13 was much friendlier to felons than

its predecessor legislation. It replaced the onerous petition-and-hearing procedure

with a simple oath requirement. Id. It also eliminated the waiting period for “[a]ny

person convicted of a [felony when] . . . the Department of Correction at the time of

release recommend[ed] restoration of citizenship.” Id. The legislature’s amendments

to Chapter 13 in 1973 terminated the oath requirement altogether, making the

restoration of citizenship rights automatic upon a felon’s unconditional discharge. An

Act to Provide for the Automatic Restoration of Citizenship, ch. 251, § 1, 1973 N.C.

Sess. Laws 237, 237–38. In short, the Hunter decision does not apply to a case such

as this one, where the legislature repealed allegedly discriminatory laws and replaced

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them with a substantially different statutory scheme.

The trial court should have looked to the Supreme Court’s more recent decision

in Abbott v. Perez, 138 S. Ct. 2305 (2018), which arose from the Texas legislature’s

adoption in 2011 of new maps for state legislative and congressional districts. Id. at

2313. Litigation immediately ensued over claims that the 2011 maps improperly took

race into account, and a federal district court in Texas drew up interim maps for the

state’s upcoming primaries without deferring to the maps enacted by the legislature.

Id. at 2315–16. Texas challenged the interim maps, and the Supreme Court reversed

and remanded, directing the district court to start with the 2011 maps drawn by the

Texas legislature and modify them as necessary to comply with federal law. Id. at

2316. In 2013 the Texas legislature repealed the original 2011 maps and enacted the

interim maps as modified by the district court. Id. at 2317. Litigation again ensued,

and the district court struck down the 2013 maps, reasoning that (1) the 2011

legislature had intended the original maps to discriminate on the basis of race and

(2) the 2011 legislature’s discriminatory intent should be attributed to the 2013

legislature because the latter “had failed to engage in a deliberative process to ensure

that the 2013 plans cured any taint from the 2011 plans.” Id. at 2318 (internal

quotation marks and citations omitted).

Texas appealed again, and the Supreme Court reversed the district court a

second time, primarily because the maps adopted by the 2013 legislature were not

the original 2011 maps. Id. at 2325. “Under these circumstances,” said the Court,

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“there can be no doubt about what matters: It is the intent of the 2013 Legislature.”

Id. Furthermore, the Court explained, a finding of past discrimination did not alter

the burden of proof or the presumption of legislative good faith. Id. at 2324–25 (“[P]ast

discrimination cannot, in the manner of original sin, condemn governmental action

that is not itself unlawful.” (alteration in original) (quoting City of Mobile v. Bolden,

446 U.S. 55, 74 (1980) (plurality opinion))). The district court thus erred by

“revers[ing] the burden of proof” and “impos[ing] on the State the obligation of

proving that the 2013 Legislature had experienced a true ‘change of heart’ and had

‘engage[d] in a deliberative process to ensure that the 2013 plans cured any taint

from the 2011 plans.’ ” Id. at 2325 (third alteration in original) (quoting Perez v.

Abbott, 274 F. Supp. 3d 624, 649 (D.C. Cir. 2017)). The district court should have held

the plaintiffs “to their burden of overcoming the presumption of [legislative] good

faith and proving discriminatory intent.” Id. Examining the available evidence, the

Supreme Court held that it was “plainly insufficient to prove that the 2013

Legislature acted in bad faith and engaged in intentional discrimination.” Id. at 2327.

The “direct evidence” of intent in the record revealed that the 2013 legislature

adopted the modified interim maps for the acceptable purpose of shortening any

redistricting litigation that might follow. Id. Inasmuch as those maps had already

been approved by the district court in earlier litigation, the 2013 legislature had “good

reason to believe that [they] were legally sound.” Id. at 2328.

When applied to this case, Abbott leads us to conclude that the trial court erred

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as a matter of law by requiring the General Assembly to prove that it had purged

past discriminatory intent prior to its enactment of a new section 13-1 in 1971. While

it would be an overstatement to say that the trial court should have ignored the pre-

1971 history recounted in its order, plaintiffs’ claims must finally rise or fall on

whether their evidence overcomes the presumption of legislative good faith and

proves that discriminatory intent motivated the legislators who voted in the early

1970s to reduce the barriers to felon re-enfranchisement. See id. at 2327 (“[W]e do

not suggest . . . that the intent of the 2011 Legislature is irrelevant . . . . Rather, . . .

the intent of the 2011 Legislature . . . [is] relevant to the extent that [it] naturally

give[s] rise to—or tend[s] to refute—inferences regarding the intent of the 2013

Legislature.”).

Before proceeding, we observe that the trial court’s order omits a major historic

development close in time to the General Assembly’s 1971 and 1973 rewrites of

section 13-1: the legislature’s approval in 1969 of what became our current state

constitution. As noted above, that document incorporated equal protection and

nondiscrimination guarantees that had not appeared in our previous state

constitutions. State Constitution at 45, 68. In other words, not long before it took

action to dismantle procedural obstacles to the restoration of eligible felons’

citizenship rights, the General Assembly adopted a draft constitution that explicitly

prohibited government discrimination based on race, color, religion, or national

origin. The trial court should have considered the relevance of this event to plaintiffs’

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racial discrimination claims.

c. Legislative History

For a court conducting an Arlington Heights inquiry, “[t]he legislative or

administrative history may be highly relevant, especially where there are

contemporary statements by members of the decisionmaking body, minutes of its

meetings, or reports.” Arlington Heights, 429 U.S. at 268. The principal findings of

fact in the trial court’s order that chronicle the events of 1971 and 1973 read as

follows:

42. In 1971, Reps. Joy Johnson and Henry Frye

proposed a bill amending section 13-1 to eliminate the

petition and witness requirement and to “automatically”

restore citizenship rights to anyone convicted of a felony

“upon the full completion of his sentence.” But their

proposal was rejected. Their proposed bill was amended to

retain section 13-1’s denial of the franchise to people living

in North Carolina’s communities. In particular, the African

American legislators’ 1971 proposal was successfully

amended in committee to specifically require the

completion of “any period of probation or parole”—words

that had not appeared in Rep. Johnson and Frye’s original

proposal—and then successfully amended again to require

“two years [to] have elapsed since release by the

Department of Corrections, including probation or parole.”

The amendments also deleted the word “automatically”

and added a requirement to take an oath before a judge to

obtain rights restoration. The 1971 revision to section 13-1

passed as amended. It thus required people with felony

convictions to wait two years from the date of the

completion of their probation or parole, and then to go

before a judge and take an oath to secure their voting

rights.

43. Rep. Frye explained on the floor of the North

Carolina House of Representatives in July 1971 that “he

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preferred the bill’s original provisions which called for

automatic restoration of citizenship when a felon had

finished his prison sentence, but he would go along with

the amendment if necessary to get the bill passed.”

44. In 1973, the three African American

legislators were able to convince their 167 White colleagues

to further amend the law to eliminate the oath requirement

and to eliminate the two-year waiting period after

completion of probation and parole, but they were not able

to reinstate voting rights upon release from incarceration.

Senator Michaux explained, with respect to the 1973

revision, that “[o]ur aim was a total reinstatement of

rights, but we had to compromise to reinstate citizenship

voting rights only after completion of a sentence of parole

or probation.” “To achieve even that victory, we vehemently

argued and appealed to our colleagues that if you had

served your time, you were entitled to your rights.

Ultimately, what we achieved was a compromise.”

45. The record evidence is clear and irrefutable

that the goal of these African American legislators and the

NC NAACP was to eliminate section 13-1’s denial of the

franchise to persons released from incarceration and living

in the community, but that they were forced to compromise

in light of opposition by their 167 White colleagues to

achieve other goals, such as eliminating the petition

requirement. Both Henry Frye’s statement on the House

floor and Senator Michaux’s affidavit make[ ] clear that the

African American legislators wanted disenfranchisement

to end at the conclusion of “prison” or “imprisonment.” But

as Senator Michaux explained: “We understood at the time

that we would have to swallow the bitter pill of the original

motivations of the law—the disenfranchisement at its core

was racially motivated—to try to make the system

practiced in North Carolina somewhat less discriminatory

and to ease the burdens placed on those who were

disenfranchised by the state.”

....

49. Rep. Jim Ramsey, who chaired the House

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Committee offering the committee substitute adding back

in the words “probation and parole,” openly acknowledged

in 1971 that the provision governing restoration of voting

rights was “archaic and inequitable.” Rep. Ramsey

provided no explanation for the Committee’s decision to

nonetheless preserve the existing law’s

disenfranchisement of people after their release from any

incarceration.

(First and second alterations in original) (citations omitted).

The only evidence cited by the trial court in the above findings to show that

racial discrimination motivated white legislators in 1971 and again in 1973 consists

of (1) committee amendments to the initial 1971 bill and (2) statements by three

legislators. It does not take much inspection to perceive the meagerness of this

evidence. We have already seen that, even as amended by committee, the 1971

legislation streamlined the rights restoration process for all eligible felons by, inter

alia, substituting an oath requirement for the time-consuming and complicated

petition-and-hearing procedure.

A closer examination of the contemporaneous records pertaining to the 1973

amendments to section 13-1 further undercuts the trial court’s findings. To begin

with, though the trial court ignored this fact, the automatic restoration bill

introduced by Representatives Johnson, Frye, and Michaux in 1973 did not cover

individuals on felony supervision; rather, it expressly excluded felons on probation or

parole. Moreover, the record shows that white legislators voted down attempts to

weaken the legislation. They rejected, for instance, an amendment that would have

retained the oath requirement. The final legislation enacted by the General Assembly

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in 1973 did not differ materially from the original bill. It ended the waiting period

and mandated automatic rights restoration for eligible felons. An Act to Provide for

the Automatic Restoration of Citizenship, ch. 251, § 1, 1973 N.C. Sess. Laws 237,

237–38.

With the enactment of the 1973 amendments to Chapter 13, Representatives

Johnson, Frye, and Michaux obtained everything they had sought, save automatic

restoration for individuals on felony supervision, and their 1973 bill did not even

propose automatic restoration for felons in that category. Especially when viewed

through the presumption of legislative good faith, the unwillingness of their white

colleagues to compromise on this one issue hardly substantiates a charge of racism.

As Senator Michaux himself testified during his deposition on 24 June 2020,

“everything that comes out of that legislature is a compromise.” See NLRB v. SW

Gen., Inc., 580 U.S. 288, 306 (2017) (“Passing a law often requires compromise, where

even the most firm public demands bend to competing interests.”).

Similarly, the legislators’ statements relied on by the trial court provide a

thoroughly inadequate foundation for its conclusion that racism drove the

legislature’s refusal to restore the rights of individuals on felony supervision. As the

Supreme Court has explained:

Inquiries into congressional motives or purposes are

a hazardous matter. When the issue is simply the

interpretation of legislation, the Court will look to

statements by legislators for guidance as to the purpose of

the legislature, because the benefit to sound decision-

making in this circumstance is thought sufficient to risk

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the possibility of misreading Congress’ purpose. It is

entirely a different matter when we are asked to void a

statute that is, under well-settled criteria, constitutional on

its face, on the basis of what fewer than a handful of

Congressmen said about it. What motivates one legislator

to make a speech about a statute is not necessarily what

motivates scores of others to enact it, and the stakes are

sufficiently high for us to eschew guesswork.

United States v. O’Brien, 391 U.S. 367, 383–84 (1968) (emphasis added) (footnote

omitted).

The statements by Representatives Frye and Ramsey are the only ones cited

by the trial court that were made during the General Assembly’s consideration of the

1971 legislation. They appeared in a brief 1971 newspaper article reporting on the

House’s debate. Significantly, there is no mention of race in the article, much less any

allegation that racism played a role in the legislation’s development.

The trial court’s order does not quote or reference any statements made by

legislators during the General Assembly’s consideration of the 1973 amendments to

Chapter 13. The statements by Senator Michaux quoted in Findings of Fact 44 and

45 come from an affidavit executed on 7 May 2020, roughly 50 years after the

legislative actions that plaintiffs challenge. While the affidavit broadly alleges that

many state legislators held racist views in 1973, it contains few details and speculates

a great deal about the motives of Senator Michaux’s white colleagues. In recounting

the defeat of a “Landlord-Tenant rights bill[,]” for instance, Senator Michaux opined,

“[The] bill . . . was ultimately defeated based, I believe, on bias in the legislative

body.”

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Taken at face value, the comments by Representatives Frye and Ramsey do

not so much as imply that racism had anything to do with amendments to the 1971

bill introduced by Representatives Johnson and Frye. In any case, “floor statements

by individual legislators rank among the least illuminating forms of legislative

history.” SW Gen., Inc., 580 U.S. at 307. The only statements by a legislator that

accuse the white legislators who voted to amend section 13-1 in 1973 of racially

discriminatory motives were made by Senator Michaux nearly half a century after

the fact. The probative value of those statements is diminished by the length of time

between the statements and the events they recount, as well as the general and

speculative quality of the statements. The trial court should have heeded the warning

in O’Brien against striking down a law based on the comments of a few legislators,

however respected and distinguished they may be. See O’Brien, 391 U.S. at 383–84.

Finally, the trial court’s inference of discriminatory intent from the legislative

history seems curiously at odds with the cumulative effect of the 1971 and 1973

legislation, which has been to restore automatically the citizenship rights of all felons,

whatever their race, who have completed their sentences. To the degree that African

Americans make up a disproportionate share of the felon population, this sea change

in the law may well have led to a disproportionate number of African American felons

regaining the right to vote. In light of the legislation’s impact and the absence of

reliable evidence of discriminatory intent, the legislative history in this case did little,

if anything, to help plaintiffs prove that racial prejudice motivated the white

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legislators who reformed our felon re-enfranchisement statutes in 1971 and 1973.

d. Procedural Sequence

“Departures from the normal procedural sequence might also afford evidence

that improper purposes are playing a role” in a government action. Arlington Heights,

429 U.S. at 267. In this case, there is no contention by plaintiffs or finding by the trial

court that the General Assembly deviated from its normal procedures during its

consideration and enactment of felon rights legislation in 1971 and 1973. Like the

other Arlington Heights factors, this one favors defendants.

e. Arlington Heights Conclusion

The trial court misapplied the Arlington Heights factors and relied on

manifestly insufficient evidence to bolster its conclusion that racial discrimination

prompted the General Assembly in 1971 and again in 1973 not to restore the

citizenship rights of persons on felony supervision. When viewed through the

presumption of legislative good faith, as it must be, the statistical and historical

evidence presented by plaintiffs does not show racial discrimination “to have been a

‘substantial’ or ‘motivating’ factor behind” the 1971 repeal and replacement of section

13-1 or the 1973 amendments to that statute. Hunter, 471 U.S. at 228. Consequently,

the burden of proof did not shift to defendants “to demonstrate that the law[s] would

have been enacted without this factor.” Id. The trial court should have rendered

judgment for defendants on plaintiffs’ claim that section 13-1 discriminates against

African Americans in violation of our state Equal Protection Clause.

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B. Wealth-Based Classification

State law makes the payment of court costs, fines, and restitution a condition

of probation, parole, and post-release supervision. N.C.G.S. §§ 15A-1343(b)(9) (2021)

(probation); 15A-1374(b)(11a)–(11b) (2021) (parole); 15A-1368.4(e)(11)–(12) (2021)

(post-release supervision). In its order granting partial summary judgment to

plaintiffs, the trial court offered an example of how this requirement can interact with

section 13-1 to postpone the restoration of a felon’s right to vote: “[P]robation may be

extended for up to five years, then an additional three with the consent of the

probationer, to allow time for the compliance with the financial obligation of

restitution. The impact is that a person remains disenfranchised for up to eight years

because he has been unable to pay . . . .” The court concluded that, “by requiring an

unconditional discharge that includes payments of all monetary obligations imposed

by the court, [section] 13-1 creates a wealth classification” in violation of the Equal

Protection Clause in Article I, Section 19.

Defendants argue that the trial court “relied on the . . . mistaken premise that

felons have a fundamental right to vote to apply strict scrutiny to [p]laintiffs’ claim

that [s]ection 13-1 creates an impermissible wealth classification.” Defendants

further contend that “[s]ection 13-1 does not create a wealth classification[,]” and

even if it did, the trial court erred in subjecting that classification to strict scrutiny.

Plaintiffs would have us affirm the trial court’s ruling, contending that equal

protection “ ‘bars a system which excludes’ from the franchise those unable to pay a

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fee[,]’ ” quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966), and

that the trial court rightly applied strict scrutiny to their wealth classification claim.

“The Equal Protection Clause necessarily operates as a restraint on certain

activities of the State that either create classifications of persons or interfere with a

legally recognized right.” Blankenship, 363 N.C. at 521–22, 681 S.E.2d at 762. For

most equal protection claims, this Court employs one of three tiers of scrutiny. “The

upper tier of equal protection analysis requiring strict scrutiny of a governmental

classification applies only when the classification impermissibly interferes with the

exercise of a fundamental right or operates to the peculiar disadvantage of a suspect

class.” White v. Pate, 308 N.C. 759, 766, 304 S.E.2d 199, 204 (1983). When a statute

draws such a classification, strict scrutiny “requires that the government

demonstrate that the classification it has imposed is necessary to promote a

compelling governmental interest.” Id.

On the other hand, when a statute does not burden a fundamental right or

peculiarly disadvantage a suspect class, we typically apply rational basis review, “the

lowest tier of review.” Rhyne v. K-Mart Corp., 358 N.C. 160, 181, 594 S.E.2d 1, 16

(2004). A statute survives rational basis review so long as the classification at issue

“bear[s] some rational relationship to a conceivable legitimate interest of the

government.” White, 308 N.C. at 766–67, 304 S.E.2d at 204; see also Rhyne, 358 N.C.

at 180–81, 594 S.E.2d at 15 (“Rational basis review is ‘satisfied so long as there is a

plausible policy reason for the classification, the legislative facts on which the

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classification is apparently based rationally may have been considered to be true by

the governmental decisionmaker, and the relationship of the classification to its goal

is not so attenuated as to render the distinction arbitrary or irrational.’ ” (quoting

Nordlinger v. Hahn, 505 U.S. 1, 11 (1992))).

We have applied intermediate scrutiny to one kind of equal protection claim

under Article I, Section 19. In Blankenship, we held that intermediate scrutiny is the

proper standard of review for claims that superior court districts drawn by the

General Assembly deny citizens “the right to vote in superior court elections on

substantially equal terms.” 363 N.C. at 525–26, 681 S.E.2d at 765. Under

intermediate scrutiny, “[j]udicial districts will be sustained if the legislature’s

formulations advance important governmental interests unrelated to vote dilution

and do not weaken voter strength more than necessary to further those interests.” Id.

at 527, 681 S.E.2d at 766.

Although “[t]he right to vote on equal terms is a fundamental right[,]”

Northampton Cnty. Drainage Dist. No. One v. Bailey, 326 N.C. 742, 747, 392 S.E.2d

352, 356 (1990), the suffrage provisions in Article VI limit the scope of that right.

Pursuant to Article VI, Section 1, for instance, no one under the age of eighteen has

the right to vote.11 We thus would not apply strict scrutiny to a claim that denying

11“Every person born in the United States and every person who has been naturalized,

18 years of age, and possessing the qualifications set out in this Article, shall be entitled to

vote at any election by the people of the State, except as herein otherwise provided.” N.C.

Const. art. VI, § 1.

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the vote to sixteen-year-olds violates the Equal Protection Clause. Likewise, the

default rule under Article VI, Section 2(3) is that felons do not have the right to vote.

The provision authorizes the General Assembly to adopt a process by which felons

may regain that right, but it leaves the details to the legislature’s sound discretion.

Usually, then, laws that set out the process by which felons may have their rights

restored do not trigger strict scrutiny. See Jones v. Governor of Fla., 975 F.3d 1016,

1030 (11th Cir. 2020) (en banc) (“[A]bsent a suspect classification that independently

warrants heightened scrutiny, laws that govern felon disenfranchisement and

reenfranchisement are subject to rational basis review.”).

The trial court applied strict scrutiny to section 13-1 because the statute

conditions felons’ eligibility to vote on their ability to pay any court costs, fines, or

restitution owed. According to the court, “when a wealth classification is used to

restrict the right to vote or in the administration of justice, it is subject to heightened

scrutiny, not the rational basis review urged by Defendants in this case.”

The trial court got the standard wrong. The Supreme Court case cited by the

court to justify its use of strict scrutiny did not concern voting rights. See M.L.B. v.

S.L.J., 519 U.S. 102, 107 (1996) (holding that a state may not “condition appeals from

trial court decrees terminating parental rights on the affected parent’s ability to pay

record preparation fees”). Moreover, federal appellate courts that have confronted

claims akin to plaintiffs’ wealth classification argument have not resorted to strict

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scrutiny.12

In Jones, the United States Court of Appeals for the Eleventh Circuit, sitting

en banc, used rational basis review to evaluate an equal protection challenge to

Florida laws that allowed felons to regain their voting rights upon completion of their

sentences, “including imprisonment, probation, and payment of any fines, fees, costs,

and restitution.” 975 F.3d at 1025. The court noted that under the federal Equal

Protection Clause felons do not have a fundamental right to vote and wealth is not a

suspect classification. Id. at 1029–30; see also Harvey v. Brewer, 605 F.3d 1067, 1079

(9th Cir. 2010) (stating that the plaintiffs “cannot complain about their loss of a

fundamental right to vote because felon disenfranchisement is explicitly permitted

under the terms of” the Supreme Court’s decision in Richardson v. Ramirez, 418 U.S.

24 (1974)); Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (“It is undisputed

that . . . the right of felons to vote is not fundamental.”). The court distinguished

Florida’s requirement that felons pay fines, fees, costs, and restitution to regain their

voting rights from a poll tax. “Unlike [a] poll tax . . . , that requirement is highly

relevant to voter qualifications. It promotes full rehabilitation of returning citizens

and ensures full satisfaction of the punishment imposed for the crimes by which

felons forfeited the right to vote.” Jones, 975 F.3d at 1031 (citation omitted); see also

Harvey, 605 F.3d at 1080 (“That restoration of [the plaintiff-felons’] voting rights

12 The dissent argues that strict scrutiny should apply to plaintiffs’ wealth

classification claim but does not cite a single case that supports the application of strict

scrutiny in this context.

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requires them to pay all debts owed under their criminal sentences does not

transform their criminal fines into poll taxes.”).

The Eleventh Circuit further reasoned:

The only classification at issue is between felons who

have completed all terms of their sentences, including

financial terms, and those who have not. This classification

does not turn on membership in a suspect class: the

requirement that felons complete their sentences applies

regardless of race, religion, or national origin. Because this

classification is not suspect, we review it for a rational

basis only.

Jones, 975 F.3d at 1030; see also Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir.

2010) (applying rational basis review to felon re-enfranchisement law); Hayden v.

Paterson, 594 F.3d 150, 170 (2d Cir. 2010) (applying rational basis review to statutes

disenfranchising felons); Owens v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983) (“[T]he

standard of equal protection scrutiny to be applied when the state makes

classifications relating to disenfranchisement of felons is the traditional rational

basis standard.”); Shepherd v. Trevino, 575 F.2d 1110, 1114–15 (5th Cir. 1978)

(holding that state laws on felon re-enfranchisement receive rational basis review).

Employing rational basis review, the Eleventh Circuit held that Florida’s felon

re-enfranchisement laws were reasonably related to legitimate government interests.

Jones, 975 F.3d at 1035. The state could rationally have believed “that felons who

have completed all terms of their sentences, including paying their fines, fees, costs,

and restitution, are more likely to responsibly exercise the franchise than those who

have not.” Id.

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We find the Eleventh Circuit’s approach in Jones persuasive. The trial court

should have subjected section 13-1 to rational basis review on plaintiffs’ claim that

the statute unconstitutionally conditions felon re-enfranchisement on the capacity of

felons to satisfy the financial terms of their sentences. The statute unquestionably

survives rational basis review because the General Assembly could reasonably have

believed in 1971 and 1973 that felons who pay their court costs, fines, or restitution

are more likely than other felons to vote responsibly. The legislature could also have

rationally viewed the requirement as an incentive for felons to take financial

responsibility for their crimes.

In their brief to this Court, plaintiffs argue that, under our current re-

enfranchisement laws, “[t]wo North Carolinians could be convicted of the same crime,

receive the same sentence, and each complete all other terms of their probation, but

the person with financial means to pay will be re-enfranchised while the person

without will remain barred from voting.” Even if that assertion is correct, it does not

save plaintiffs’ equal protection claim. Practically every law affects those who come

within its ambit differently based on their individual situations. The question under

rational basis review is whether distinctions drawn by the law are reasonable and

connected to a legitimate government interest. When it comes to section 13-1’s

requirement that felons satisfy the conditions of their felony supervision, the answer

to that question is undoubtedly yes. Once again, we find the Eleventh Circuit’s

analysis convincing:

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To be sure, the line Florida drew might be imperfect.

The classification may exclude some felons who would

responsibly exercise the franchise and include others who

are arguably less deserving. But Florida was not required

to draw the perfect line nor even to draw a line superior to

some other line it might have drawn. The Constitution

requires only a rational line. The line between felons who

have completed their sentences and those who have not

easily satisfies that low bar.

Jones, 975 F.3d at 1035.

We should add that, even if the scenario posed by plaintiffs were

constitutionally problematic, it would not be enough to sustain their equal protection

claim. Plaintiffs brought a facial challenge to section 13-1, “the most difficult

challenge to mount successfully.” Hart v. State, 368 N.C. 122, 131, 774 S.E.2d 281,

288 (2015). To prevail, they must show that “there are no circumstances under which

the statute might be constitutional.” Beaufort Cnty. Bd. of Educ. v. Beaufort Cnty.

Bd. of Comm’rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009) (emphasis added). “The

fact that a statute might operate unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid.” State v. Thompson, 349 N.C.

483, 491, 508 S.E.2d 277, 282 (1998).

Section 13-1 does not impermissibly condition the right to vote on a felon’s

ability to pay whatever court costs, fines, or restitution the felon may owe. Because

this equal protection claim lacks merit, the trial court should have granted summary

judgment for defendants. See N.C.G.S. § 1A-1, Rule 56(c) (2021) (“Summary

judgment, when appropriate, may be rendered against the moving party.”).

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C. Property Qualifications

The Property Qualifications Clause in our state constitution declares: “As

political rights and privileges are not dependent upon or modified by property, no

property qualification shall affect the right to vote or hold office.” N.C. Const. art. I,

§ 11. In granting summary judgment for plaintiffs on their Property Qualifications

Clause claim, the trial court reasoned that, “when legislation is enacted that restores

the right to vote, thereby establishing qualifications which certain persons must meet

to exercise their right to vote, such legislation must not do so in a way that makes the

ability to vote dependent on a property qualification.” The trial court opined that

section “13-1 does exactly that” by making the re-enfranchisement of felons depend

on whether they satisfy the financial terms of their sentences.

Defendants argue that section 13-1 does not violate the Property Qualifications

Clause because “[t]he requirement that felons complete their sentences, including

financial aspects of their sentences, is a predicate for felons having their rights

restored, not a qualification for exercising their rights.” In defendants’ view, “[t]he

Constitution’s demand that ‘political rights and privileges’ not be made ‘dependent

upon or modified by property’ is inapplicable to felons who have no political right to

vote until [that right is] reinstated by [s]ection 13-1.” Defendants also maintain that

the trial court’s interpretation conflicts with the original understanding of property

qualifications. Plaintiffs argue in response that money constitutes a form of property

and consequently the Property Qualifications Clause prohibits the state from

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withholding the franchise over a felon’s nonpayment of court costs, fines, or

restitution.

The Property Qualifications Clause does not exist in a textual vacuum. It

forbids the imposition of property qualifications on “the right to vote,” but it does not

define that right. Other provisions in the state constitution give that right content.

Thus, for example, Article I, Section 9 guarantees anyone entitled to vote in North

Carolina the right to do so in elections that are held frequently. See N.C. Const. art.

I, § 9 (“[E]lections shall be often held.”). Under Article I, Section 10, those frequent

elections must be conducted “free from interference or intimidation.” State

Constitution at 56; see also N.C. Const. art. I, § 10 (“[E]lections shall be free.”). Article

VI sets out the qualifications that individuals must satisfy to have the right to vote

in the frequent and free elections mandated by Article I, Sections 9 and 10. In general,

as we have seen, that right belongs to anyone who has reached eighteen years of age

and meets certain residency requirements. N.C. Const. art. VI, § 1, § 2(1)–(2).

Article VI expressly disqualifies from voting, however, anyone “adjudged guilty

of a felony . . . unless that person shall first be restored to the rights of citizenship in

the manner prescribed by law.” Id. § 2(3). The obvious import of these words is that

felons whose rights have not been restored as provided by law have no right to vote

under our state constitution. Put differently, felon re-enfranchisement through

section 13-1 “is not a . . . right; it is a mere benefit that” the General Assembly could

“choose to withhold entirely.” Harvey, 605 F.3d at 1079. Because felons whose

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citizenship rights have not been restored have no state constitutional right to vote,

requiring them to fulfill the financial terms of their sentences as a condition of re-

enfranchisement cannot be said to violate the Property Qualifications Clause.

Financial obligations imposed on individuals who already lack the right to vote

simply do not trigger that provision.

The historical background of the Property Qualifications Clause lends weight

to our interpretation of the provision’s scope. Under the 1776 constitution, all freemen

aged twenty-one or older who satisfied a one-year residency requirement and had

paid “public taxes” could vote for members of the state house. N.C. Const. of 1776,

Declaration of Rights, § VIII. When it came to voting for a member of the state senate,

though, a freeman could not vote unless he met the residency requirement and was

“possessed of a freehold within the same county of fifty acres of land for six months

next before, and at the day of election.” Id. § VII. The 1776 constitution also imposed

property ownership qualifications on the governor and members of the legislature.13

The property qualifications in the 1776 constitution were meant to ensure that

the people who voted and those for whom they voted had a personal investment in

the governance of the state. “Although [Article I, Section 11 of the current state

13 “[M]embership in the senate was restricted to men with ‘not less than three hundred

acres of land in fee,’ while each member of the house of commons had to hold ‘not less than

one hundred acres of land in fee, or for the term of his own life.’ The governor had to be a

man of still more substantial property, possessed of ‘a freehold in lands and tenements, above

the value of one thousand pounds.’ ” John V. Orth, Fundamental Principles in North Carolina

Constitutional History, 69 N.C. L. Rev. 1357, 1361 (1991) (footnotes omitted) (citing N.C.

Const. of 1776, §§ 5–6, 15).

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constitution] confidently declare[s] that politics and property are not related . . . , the

fact was not self-evident to the generation that made the Revolution. On the contrary,

the state’s 1776 constitution excluded paupers from the franchise: Those without

property had, it was thought, no stake in society.” State Constitution at 57.

The 1835 amendments to the state constitution left the property qualifications

intact. “In 1857, voters approved the only amendment submitted to them between

1836 and [their ratification of the 1868 constitution]. The amendment . . . abolished

the 50-acre land ownership requirement for voters to cast ballots in state senate

races.”14 John L. Sanders, Our Constitutions: An Historical Perspective,

https://www.sosnc.gov/static_forms/publications/North_Carolina_Constitution_Our_

Co.pdf (last visited Apr. 14, 2023). The 1857 amendment did not alter property

qualifications for governor and members of the legislature, which remained in effect

until after the Civil War. State Constitution at 57.

The Property Qualifications Clause that now resides in Article I, Section 11

first appeared in the 1868 constitution. It banned—and continues to ban—property

qualifications for voting or officeholding. “[A] milestone on the road to modern

democracy[,]” the provision owes its existence to Republican delegates to the 1868

constitutional convention, who insisted “that popular sovereignty not be limited by

14 “Every free white man of the age of twenty-one years, being a native or naturalized

citizen of the United States and who has been an inhabitant of the State for twelve months

immediately preceding the day of an election, and shall have paid public taxes, shall be

entitled to vote for a member of the senate for the district in which he resides.” N.C. Const.

of 1776, amends. of 1857.

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property.” Id.

The requirement that felons pay what they owe differs in kind and purpose

from the 1776 constitution’s property qualifications. As we have seen, the framers of

the 1776 constitution restricted voting and certain offices to owners of real property

in the belief that propertyless individuals lacked a stake in the conduct of government

affairs. Insisting that felons pay their court costs, fines, and restitution is not the

same thing as mandating that they own real or personal property in particular

amounts. Nothing prohibits a relative, for instance, from paying a felon’s court costs.

Moreover, section 13-1’s re-enfranchisement criteria are not premised on the

outdated notion that the poor have no interest in how the state is run.

Plaintiffs cite Wilson v. Board of Aldermen, 74 N.C. 748 (1876), for the

proposition that money constitutes property for purposes of the Property

Qualifications Clause. There, the plaintiff disputed the constitutionality of a

provision in the City of Charlotte’s charter that endowed the city with the power to

tax his bonds and income. Id. at 748–49. The plaintiff based his argument on Article

VII, Section 9 of the 1868 constitution, which directed that any property taxes levied

by counties or municipalities be “uniform and ad valorem” Id. at 754 (quoting N.C.

Const. of 1868, art. VII, § 9). The plaintiff interpreted Article VII, Section 9 to confine

local government property taxes to tangible property. Id. We disagreed, pointing out

that other provisions in the 1868 constitution, such as the Property Qualifications

Clause, used the term “property” more generally. Id. at 755–56.

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The Wilson case does not lead to the conclusion that section 13-1 violates the

Property Qualifications Clause. While money is a form of property, the Property

Qualifications Clause bans laws that make property ownership a condition of voting,

and we have just explained that section 13-1 does not mandate that felons own

property.15

The trial court erred in ruling that section 13-1 violates the Property

Qualifications Clause. When read alongside related constitutional provisions, the

Property Qualifications Clause does not bar the General Assembly from requiring

that felons satisfy the financial terms of their sentences before they regain the

franchise. The history behind the Property Qualifications Clause reenforces this view.

Section 13-1 does not implicate “the purposes sought to be accomplished by [the]

promulgation” of the Property Qualifications Clause. Sneed v. Greensboro City Bd. of

Educ., 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980). Defendants were entitled to

summary judgment on this claim.

D. Free Elections Clause

In its final order, the trial court ruled that section 13-1 “violates the Free

Elections Clause [in Article I, Section 10 of the North Carolina Constitution] by

preventing elections that ascertain the will of the people.” The trial court reasoned

that “North Carolina’s elections do not faithfully ascertain the will of the people when

15 The dissent incorrectly asserts that we construe the Property Qualifications Clause

to refer to real property only.

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such an enormous number of people living in communities across the state—over

56,000 individuals [on felony supervision]—are prohibited from voting.”16

Defendants argue that section 13-1 does not violate the Free Elections Clause

because (1) felons have no right to vote under the state constitution and thus fall

outside the scope of the Free Elections Clause; (2) section 13-1 cannot be said to

contravene the Free Elections Clause because it is more lenient on felons than the

version of section 13-1 that was in effect when voters ratified the current state

constitution in 1970; and (3) “[p]laintiffs have failed to prove that [s]ection 13-1

constrains any voter’s choice in voting for particular candidates.” According to

plaintiffs, the Free Elections Clause requires allowing individuals on felony

supervision to vote because elections must “reflect to the greatest extent possible the

will of all people living in North Carolina communities.”

We hold that section 13-1 does not violate the Free Elections Clause in Article

I, Section 10. Like the Property Qualifications Clause in Article I, Section 11, the Free

Elections Clause must be harmonized with the provisions of Article VI. Pursuant to

Article VI, Section 2(3), only those felons whose citizenship rights have been restored

in the manner prescribed by law have the right to vote. Accordingly, the Free

Elections Clause is not violated when felons whose rights have not been restored are

16The trial court further concluded that section 13-1 “strikes at the core of the Free

Elections Clause . . . because of its grossly disproportionate effect on African American

people.” We explained earlier in this opinion why the trial court’s disparate impact findings

are unreliable.

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excluded from the electoral process. In plain English, it is not unconstitutional merely

to deny the vote to individuals who have no legal right to vote.

The historical background of the Free Elections Clause substantiates our

holding. Our opinion issued today in Harper v. Hall, No. 413PA21-2 (N.C. Apr. 28,

2023), discusses that background in detail, so we need not duplicate the discussion

here. Suffice to say that a free elections guarantee has appeared in each of our state’s

constitutions, the first of which declared that “elections of members, to serve as

Representatives in General Assembly, ought to be free.” N.C. Const. of 1776,

Declaration of Rights, § VI. The wording of the free elections guarantee in the 1776

constitution echoes a parallel provision in the 1689 Bill of Rights adopted by the

English Parliament following the overthrow of King James II. See Bill of Rights 1689,

1 W. & M. Sess. 2, ch. 2, § I, cl. 13 (“[E]lection of Members of Parlyament ought to be

free.”); State Constitution at 56 (“The word [‘free’ as used in the Free Elections Clause]

originally derives . . . from the English Declaration of Rights (1689)[.]”).

As explained in Harper, “the drafters of the English Bill of Rights sought to

secure a ‘free [P]arliament,’ a Parliament where the electors could vote for candidates

of their choice, and the members, once elected, could legislate according to their own

consciences without threat of intimidation or coercion from the monarch.” Harper,

slip op. at 111–12 (alteration in original) (quoting Michael Barone, Our First

Revolution: The Remarkable British Upheaval that Inspired America’s Founding

Fathers 230 (2007)) The framers of our 1776 constitution hoped to achieve a similar

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goal: state legislative elections “free from interference or intimidation.” State

Constitution at 56.

This Court’s decisions interpreting the Free Elections Clause further

illuminate the contours of that provision. In Swaringen v. Poplin, 211 N.C. 700, 191

S.E. 746 (1937), the plaintiff alleged that the county board of elections had

fraudulently altered the results of his county commissioner race, thereby depriving

him of office. Id. at 700–01, 191 S.E. at 746. We rejected the defendant’s argument

that the complaint failed to state a claim and held that, under the Free Elections

Clause, “[a] free ballot and a fair count must be held inviolable to preserve our

democracy.” Id. at 702, 191 S.E. at 747. We thus construed the Free Elections Clause

to prohibit fraudulent vote counts.

In Clark v. Meyland, 261 N.C. 140, 134 S.E.2d 168 (1964), the plaintiff

challenged a statutory requirement that voters seeking to change their party

affiliation take an oath promising to support their new party’s nominees until “in

good faith” they changed their party affiliation again. Id. at 141, 134 S.E.2d at 169.

We held that the portion of the oath requiring support for future candidates violated

the Free Elections Clause because “[i]t denie[d] a free ballot—one that is cast

according to the dictates of the voter’s judgment.” Id. at 143, 134 S.E.2d at 170. We

explained that “the Legislature [was] without power to shackle a voter’s conscience

by requiring the objectionable part of the oath as a price to pay for his right to

participate in his party’s primary.” Id. In summary, “[b]ased upon . . . this Court’s

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precedent, the free elections clause means a voter is deprived of a ‘free’ election if (1)

a law prevents a voter from voting according to one’s judgment, or (2) the votes are

not accurately counted.” Harper, slip op. at 117 (citations omitted).

“[A] constitution cannot violate itself[,]” Leandro, 346 N.C. at 352, 488 S.E.2d at

258, so denying the franchise to felons as required by Article VI, Section 2(3) cannot

be a violation of the Free Elections Clause. Furthermore, excluding felons whose

rights have not been restored from the electoral process does not expose our elections

to the sort of interference, intimidation, fraud, or infringements on conscience that

the Free Exercise Clause exists to prevent. The trial court therefore erred in ruling

that section 13-1 contravenes the Free Elections Clause.

E. Fundamental Right to Vote

Lastly, the trial court concluded that section 13-1 unconstitutionally

“interferes with the fundamental right to vote on equal terms[,]” reasoning that felons

“on felony supervision share the same interest as . . . North Carolina residents who

have not been convicted of a felony or [felons] who have completed their supervision.”

We have already concluded that felons have no fundamental right to vote, as Article

VI, Section 2(3) expressly divests them of this right upon conviction. Contrary to the

trial court’s reasoning, felons are not “similarly situated” to non-felons when it comes

to voting; our state constitution could not be clearer on this point.

V. Disposition

Plaintiffs failed to prove the unconstitutionality of section 13-1 beyond a

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reasonable doubt. The General Assembly did not engage in racial discrimination or

otherwise violate the North Carolina Constitution by requiring individuals with

felony convictions to complete their sentences—including probation, parole, or post-

release supervision—before they regain the right to vote. We therefore reverse the

trial court’s grant of summary judgment and declaratory and injunctive relief to

plaintiffs and remand this case to the trial court for dismissal of plaintiffs’ claims

with prejudice.

REVERSED AND REMANDED.

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Earls, J., dissenting

Justice EARLS dissenting.

The majority’s decision in this case will one day be repudiated on two grounds.

First, because it seeks to justify the denial of a basic human right to citizens and

thereby perpetuates a vestige of slavery, and second, because the majority violates a

basic tenant of appellate review by ignoring the facts as found by the trial court and

substituting its own. See, e.g., State v. Taylor, 379 N.C. 589, 608 (2021)

(“[A]n appellate court is not entitled to ‘make its own findings of fact and credibility

determinations, or overrule those of the trier of fact.’ ” (quoting Desmond v. News &

Observer Publ’g Co., 375 N.C. 21, 44 n.16 (2020))).

With regard to the first and most serious issue, the majority interprets the

North Carolina Constitution to reduce the humanity of individuals convicted of felony

offenses to the point of cruelty: People who are convicted of felony offenses are no

longer people, they are felons.1 The majority believes that, as felons, they are not free

even after their sentences are complete, they are merely felons for the rest of their

lives. At about the same time that the state constitution was amended to

disenfranchise all Blacks, both those who were slaves and those who were free, this

Court held that “[t]he power of the master must be absolute to render the submission

1 The rationale for denying the franchise to returning citizens was questioned at the

time the statute at issue here was under consideration. See, e.g., North Carolina Law Review,

Notes, 50 N.C. L. Rev. 903, 910 (1972) (“If the prisoner is worthy of being released to the

community he should be made to feel that he is ready to rejoin society as a participant and

not as an outsider.”).

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Earls, J., dissenting

of the slave perfect.” State v. Mann, 13 N.C. (2 Dev.) 263, 266 (1829). The Court found

that proposition to be inherent in the institution of slavery and professed no power to

“chang[e] the relation in which these parts of our people stand to each other.” Id. at

267. Today, the Court again consigns a portion of the state’s population to a less than

free status, unable to participate in the fundamental exercise of self-governance upon

which democracy is based. See Blankenship v. Bartlett, 363 N.C. 518, 522 (2009); see

also Reynolds v. Sims, 377 U.S. 533, 554–55 (1964) (declaring that the right to vote

is a fundamental right, preservative of all other rights). As preservative of all other

rights, the right to vote also recognizes the inherent humanity of every adult citizen.

The state constitution contemplates that the right to vote, along with all rights of

citizenship, shall be restored to people who commit felony offenses. N.C. Const. art.

VI, § 2(3). The only question in this case is whether the statute that prescribes how

restoration is accomplished, N.C.G.S. § 13-1, unconstitutionally discriminates

against individuals with felony convictions. The trial court heard extensive evidence,

made detailed findings of fact, and applied the correct legal standards to answer that

question. The trial court’s final judgment and order should be affirmed.

I. Factual Background

A. The Racist Origins of N.C.G.S. § 13-1

Years before the original version of N.C.G.S. § 13-1 was adopted, the North

Carolina Constitution expressly forbade all African Americans, whether free or

enslaved, from voting. This wholesale prohibition came about in 1835. Prior to 1835,

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the state constitution already prohibited slaves from voting. But in response to

African Americans’ growing political influence in certain parts of the state and

broader fears surrounding racial empowerment, there were calls to amend the state

constitution to deny the franchise to all African Americans, regardless of their status

as slaves or free people. This fear is encapsulated by a plea from white North

Carolinians to the state legislature, urging the General Assembly to deny the

franchise to free African Americans:

A very large portion of our population are slaves, and

recent occurrences must deeply impress . . . the vital

necessity of keeping them in a state of discipline and

subordination. . . . [P]ermitting free negroes to vote at

elections, contributes to excite and cherish a spirit of

discontent and disorder among the slaves. . . . Will not

practices such as these . . . ‘naturally excite in the salves

discontent with their condition, encourage idleness and

disobedience, and lead possibly in the course of human

events, to the most calamitous of all contests, a bellum

servile a servile war.’

The Sentinel (New Bern, N.C.), December 7, 1831, at 3. This plea further decried that

free African Americans were not truly free: “[T]hey are forbidden to contract marriage

except with their own class . . . [and] they are not called upon to aid in the execution

of the civil or criminal processes of the law: they may be subjected even to the

punishment of death on the testimony of a slave. Can these disabilities belong to the

Freeman?” Id.

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Concerns like these prevailed during the 1835 Constitutional Convention.2

And so, in 1835, the North Carolina constitution was amended to provide that “[n]o

free negro, free mulatto, or free person of mixed blood, descended from negro

ancestors to the fourth generation inclusive[ ] (though one ancestor of each generation

may have been a white person[ ]) shall vote for members of the Senate or House of

Commons.” N.C. Const. of 1776, amend. 1835, art. I, § 3(3) (1835). The constitution of

1835 did not contain a felony disenfranchisement provision. See generally N.C. Const.

of 1776, amends. of 1835. Instead, the constitution prohibited individuals convicted

of “infamous” crimes, such as treason, bribery, or perjury, from voting. N.C. Const. of

1776, amends. of 1835, art. I, § 4, pt. 4. Receiving an infamous punishment, such as

a whipping, also served to bar individuals from voting.

The 1835 constitutional amendments were in effect for just over thirty years.

Following the Civil War, however, North Carolina adopted a new constitution during

the 1868 Reconstruction Convention as a condition for its return to the Union. The

1868 constitution provided for universal male suffrage, eliminated property

ownership requirements as a condition for voting, and abolished slavery. Notably, the

1868 constitution did not contain any provision that denied the franchise to felons.

See generally N.C. Const. of 1868.

2 For example, Jesse Wilson of Perquimans County argued that “[c]olor is a barrier”

and “[i]f you make it your business to elevate the condition of the blacks, in the same

proportion do you degrade that of the poorer whites,” which could lead to “an increase of mixed

breeds.” State Convention, The Weekly Standard (Raleigh, N.C.), June 19, 1835, at 2.

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The 1868 constitution’s promise of equal treatment for African Americans

sparked an immediate and viscous backlash. Violence against African Americans and

their sympathizers was rampant, as were efforts to prevent African Americans from

voting. As part of these disenfranchisement efforts, “White former Confederates in

North Carolina conducted an extensive campaign of convicting African American men

of petty crimes en masse and whipping them to disenfranchise them ‘in advance’ of

the Fifteenth Amendment,” which was not ratified until 1870. The whipping

campaign exploited a North Carolina law that disenfranchised anyone subject to this

brutal and degrading form of punishment. One Congressman explained before the

United States House of Representatives that “in North Carolina . . . they are now

whipping negroes for a thousand and one trivial offenses . . . and in one county . . .

they had whipped every adult male negro” in order to “prevent[ ] these negroes from

voting.”

White conservative Democrats ultimately regained control over the General

Assembly in 1870 and doubled-down on efforts to suppress African Americans’ newly

won freedom. These efforts culminated in 1875 when a series of constitutional

amendments were introduced that were intended to curb the rights of African

Americans. For example, the amendments, which were ratified in 1876, banned

interracial marriage, required segregation in public schools, and stripped counties of

their ability to elect their own local officials, delegating that power instead to the

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General Assembly.3 N.C. Const. of 1868, amends. of 1875, amends. XXVI, XXV, XXX.

Particularly significant to this case, the 1876 amendments disenfranchised any

person “adjudged guilty of felony” and provided that disenfranchised persons would

be “restored to the rights of citizenship in a mode prescribed by law.” N.C. Const. of

1868, amends. of 1875, amend. XXIV. The felon disenfranchisement amendment was

introduced in the General Assembly by a former Confederate who had been

“instructed by his nominating county to lead a ‘crusade’ against the ‘radical civil

rights officers’ holders party,’ i.e., the party that supported equal rights for African

American people[,]” as the trial court explained.

The trial court recognized that the General Assembly’s disenfranchisement

scheme “capitalized on Black Codes that North Carolina had enacted in 1866, which

allowed sheriffs to charge African American people with crimes at their discretion,”

enabling targeted and systematic disenfranchisement. The amendment’s purpose

was no secret. As one conservative Democrat explained, felon disenfranchisement

would result in “a purification of the ballot box.” Address of the Executive Democratic

Central Committee to the People of North Carolina, The Raleigh News (Raleigh, N.C.),

June 23, 1875. This amendment remains on the books today, and it is largely

unchanged since its ratification in 1876. See N.C. Const. art. VI, § 2(3).

During the first legislative session after the 1876 amendments were ratified,

3According to the trial court, “[t]he purpose of [the latter] amendment was to prevent

African Americans from electing African American judges, or judges who were likely to

support equality.”

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the General Assembly enacted a new law to implement the constitution’s new felony

disenfranchisement provision. The 1877 law prohibited people convicted of felonies

from voting unless their rights were restored “in the manner prescribed by law.” In

turn, the “manner prescribed by law” incorporated an 1840s statute that governed

rights restoration for individuals convicted of the most heinous crimes, namely

treason and other “infamous crimes.” In so doing, as the trial court stated, “[t]he 1877

statute took all of the onerous requirements for rights restoration that had previously

applied only to people convicted of treason and for the first time extended them to

anyone convicted of any felony.”

Importantly, the 1877 law did not merely disenfranchise convicted felons

during the duration of their prison sentences. Rather, the law continued to bar people

from voting even after they were released from incarceration. An Act to Regulate

Elections, ch. 275, §§ 10, 62, 1877 N.C. Sess. Laws 516, 519–20, 537. The law also

imposed burdensome procedural requirements that convicted felons had to meet in

order to have their rights restored. Namely, they had to wait four years from the date

of their felony conviction to file a petition for rights restoration. See An Act Providing

for Restoring to the Rights of Citizenship Persons Convicted of Infamous Crimes, ch.

36, § 3, 1841 N.C. Sess. Laws 68, 68. Once eligible to file a petition, they had to secure

the testimony of “five respectable witnesses who have been acquainted with the

petitioner’s character for three years next preceding the filing of the petition, that his

character for truth and honesty during that time has been good.” Id. § 1. The witness

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requirement served to bar people from petitioning for rights restoration until three

years after their release from prison. Once a petition was filed, judges had complete

discretion to approve or deny it, and the clerk of court was required to post the

individual’s petition on the courthouse door for a three-month period before the

restoration hearing. Id. Any member of the public could then challenge the petition.

Id.

The law’s message was simple: once a felon, always a felon. Once an individual

bore this label, only that person’s extensive efforts coupled with the lucky draw of a

sympathetic judge could restore the rights every other citizen enjoyed. But such luck

could be difficult to come by. Indeed, according to the trial court, “[t]he 1877 law’s

adoption of the requirement to petition an individual judge for restoration had a

particularly discriminatory effect against African American people considering the

contemporaneous 1876 constitutional amendment stripping African American

communities of the ability to elect local judges.”

Together, the 1876 constitutional amendments and the 1877 law were

intended to “instill White supremacy and . . . disenfranchise African-American

voters.” Legislative Defendants themselves conceded that the historical evidence

presented at trial “demonstrates a shameful history of our state’s use of laws, and

with regard to voting in particular, to suppress the African American population.”

B. N.C.G.S. § 13-1’s Modern History

Despite some minor changes, the 1877 law went largely unchanged from 1897

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until 1970. Most notably here, it was recodified at N.C.G.S. § 13-1 during this period,

where it remains in effect today. Then in the early 1970s, the General Assembly’s

only African American members sought to amend the law to eliminate its denial of

the franchise to individuals who had completed their prison sentences.

These efforts were first rejected in 1971. That year, two African American

members of the General Assembly proposed a bill that would remove N.C.G.S. § 13-

1’s denial of the franchise to convicted felons who had finished serving their period of

incarceration. Despite the purpose behind their original proposal, the bill was

amended in committee to require the completion of “any period of probation or parole”

before an individual could retain the right to vote, among other modifications. And as

if this deprivation of the right to vote was not sufficiently severe, as the trial court’s

order explained, N.C.G.S. § 13-1 was further amended to require “two years [to] have

elapsed since release by the Department of Corrections, including probation or

parole” before an individual could petition for rights restoration.

In 1973, the only three African American members of the General Assembly

again attempted to reform N.C.G.S. § 13-1. As before, their efforts to amend the law

to restore a convicted felon’s right to vote upon completion of the individual’s prison

sentence were unsuccessful. They were, however, able to persuade their colleagues to

do away with the 1971 amendment that required a two-year waiting period after an

individual finished serving a period of probation or parole. An Act to Provide for the

Automatic Restoration of Citizenship, ch. 251, § 1, 1973 N.C. Sess. Laws 237, 237–

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38.

The trial court found that “[t]he record evidence is clear and irrefutable that

the goal of these African American legislators . . . was to eliminate section 13-1’s

denial of the franchise to persons released from incarceration and living in the

community, but . . . they were forced to compromise in light of opposition by their

167 White colleagues” and to accept other modifications to the law.

C. N.C.G.S. § 13-1’s Modern Discriminatory Effects

Extreme racial disparities in disenfranchisement between African Americans

and White individuals convicted of felonies persist. In North Carolina, a staggering

56,516 people are denied the franchise due to probation, parole, or post-release

supervision from a felony conviction in state or federal court. Of North Carolina’s

voting-age population, 21% are African Americans yet, critically, over 42% of those

denied the franchise due to felony probation, parole, or post-release supervision from

a state court conviction alone are African American. By contrast, White people

represent 72% of North Carolina’s voting-age population yet only constitute 52% of

those who are similarly denied the franchise. African Americans in North Carolina

are denied the franchise at a rate 2.76 times as high as the rate of White people with

1.24% of the African American voting-age population being denied the franchise,

whereas only 0.45% of the White voting-age population is similarly disenfranchised.

These statistics demonstrate the stark reality of N.C.G.S. § 13-1’s disproportionate

effect on African Americans.

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Countless extreme racial disparities in voter disenfranchisement of persons on

community supervision also exist at the county level. The rate of African American

disenfranchisement due to felony probation, parole, or post-release supervision is

considered “high” in seventy-seven counties. However, the rate of White

disenfranchisement only considered “high” in ten counties. In North Carolina, the

highest rate of White disenfranchisement in any county is 1.25% whereas rates of

African American disenfranchisement are as high as 2% in nineteen counties, 3% in

four counties, and over 5% in one county. This means that one out of every twenty

African American adults in that county cannot vote due to felony probation, parole,

or post-release supervision.

There is not a single county in the state where the White disenfranchisement

rate is greater than the African American disenfranchisement rate. The African

American disenfranchisement rate is at least four times greater than the White rate

in twenty-four counties and at least five times greater than the White rate in eight

counties.

These grave differences represent the extreme disparate impact that the

state’s denial of the franchise to people on felony probation, parole, or post-release

supervision has on African Americans. As one of Plaintiffs’ experts opined, “We find

in every case that it works to the detriment of the African American population.”

Although the Legislative Defendants’ expert claims that there is no racial disparity

in voter disenfranchisement of people on community supervision because “100% of

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felons of every race in North Carolina” are disenfranchised, the statistics tell a very

different, grim story.4

II. Analysis

A. Standing

I agree with the Court’s conclusion that “plaintiff-felons have standing to bring

their claims against defendants” as well as its reasoning in reaching its conclusion as

to the traceability issue. I reject the deference the Court affords Defendants’

arguments, however, as they are entirely divorced from this Court’s standing

doctrine. They are so dumbfounding that they do not even warrant being

acknowledged as “plausible.” I therefore address these arguments separately. Though

I also agree that Plaintiffs’ injuries are redressable, I reach this conclusion on

different grounds. Finally, I dissent from the majority’s holding that plaintiff-

organizations Community Success Initiative, Justice Served N.C., Inc., and Wash

Away Unemployment lack standing in this litigation.

1. Traceability

Defendants argue that the Plaintiffs lack standing to challenge N.C.G.S. § 13-

1 because “Plaintiffs have not been injured by Section 13-1. Rather, they have

targeted the very avenue by which they may regain their right to vote.” Instead,

4 In its September 2020 summary judgment order, the trial court concluded that this

expert’s report was entitled to “no weight” because it was “unpersuasive in rebutting the

testimony of Plaintiffs’ experts, was flawed in some of its analysis and, while [he] is an expert

in the broad field of political science, his experience and expertise in the particular issues

before this panel are lacking.”

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Defendants argue that article VI, section 2(3) is responsible for depriving individuals

on community supervision of the right to vote. In Defendants’ view then, Plaintiffs

have challenged the wrong law, and therefore the alleged injury is not traceable to

the statute that is the subject of this litigation.

This argument fails because, as Plaintiffs point out, N.C.G.S. Ҥ 13-1 is the law

that prevents people from registering to vote as long as they are on felony probation,

parole, or post-release supervision.” “As a general matter, the North Carolina

Constitution confers standing on those who suffer harm . . . .” Magnum v. Raleigh Bd.

of Adjustment, 362 N.C. 640, 642 (2008) (citing N.C. Const. art. I, § 18). In other

words, Plaintiffs are “required to demonstrate that [they have] sustained a legal or

factual injury arising from defendants’ actions.” United Daughters of the Confederacy

v. City of Winston-Salem, 383 N.C. 612, 629 (2022). Here, Plaintiffs do not challenge

article VI’s felon disenfranchisement provision itself. Rather, they challenge N.C.G.S.

§ 13-1’s specific extension of article VI to individuals who have completed their prison

sentences and have been released

This text is long and has been trimmed here. Open the source document for the complete record.