Professional Documents
Culture Documents
Defendants.
TABLE OF CONTENTS
Page
INTRODUCTION ........................................................................................................... 1
PARTIES ......................................................................................................................... 6
I. North Carolina’s Strict Liability Voting Law Was Enacted for the Specific
Purpose of Deterring Black Individuals From Attempting to Vote. ...................... 10
B. The key features of the Strict Liability Voting Law have remained
intact since 1899. ...................................................................................... 19
III. The Strict Liability Voting Law Fails to Provide Fair Notice of Criminal
Liability. .............................................................................................................. 33
IV. The Strict Liability Voting Law Deters Eligible Individuals From Voting. .......... 43
V. The Strict Liability Voting Law Impedes Plaintiffs’ Efforts to Carry Out
Their Missions. .................................................................................................... 51
CLAIMS ........................................................................................................................ 53
i
INTRODUCTION
275(5) (the “Strict Liability Voting Law”), a racially discriminatory relic of the
nineteenth century that imposes stringent criminal penalties on voting by North Carolina
Violating the Strict Liability Voting Law is a Class I felony that carries a penalty of up
two years in prison. N.C. GEN. STAT. § 15A-1340.17.1 Under this vague and confusing
law, and with grossly inadequate efforts by Defendants in this matter to provide
2. The Strict Liability Voting Law was originally enacted in 1877 with an
intent to disenfranchise Black voters. See 1876–77 N.C. Sess. Laws 537. In 1899, the
North Carolina General Assembly (the “General Assembly”) reenacted the Strict
Liability Voting Law almost verbatim in a broad legislative initiative to suppress the
Black vote and reinstate white control throughout the state. See 1899 N.C. Sess. Laws
681. Despite the law’s racist roots, the General Assembly has never amended the key
1
See also Deposition of Karen Brinson Bell, Executive Director of the North Carolina
State Board of Elections (“Bell Dep.”), Community Success Initiative v. Moore, No. 19-
CVS-15941 (N.C. Super. Ct. July 16, 2020) (“CSI”), (Exhibit 1), at 127:4–9 (Q: “Ms.
Bell, do you understand that under the current law, if a person votes while on felony
probation or post-release supervision, that’s a crime for which a person can face up to
two years in prison? A: That is my understanding, yes.”).
1
features of the Strict Liability Voting Law. It has remained on the books meaningfully
Carolina requires intent. See, e.g., N.C. GEN. STAT. §§ 163-275(1, 3, 4, 7–9). But “felon
voting is a strict liability offense, and thus a felon may be convicted of a crime even if he
or she does not know that voting while serving an active sentence is wrongful.”2 The
North Carolina State Board of Elections (“NCSBE”) has recognized that violations of the
Strict Liability Voting Law are almost always unintentional, and “education and
voters for violations of the Strict Liability Voting Law. In Alamance and Hoke Counties,
as just two examples, District Attorneys have prosecuted sixteen North Carolina
residents, thirteen of whom are Black, for violating the State’s draconian Strict Liability
Law.4 These high-profile criminal cases, as well as the vague wording of the Strict
2
Post-Election Audit Report: General Election 2016, North Carolina State Board of
Elections (Apr. 21, 2017) (“Post-Election Audit Report”), (Exhibit 2), at 3.
3
Id. at 5.
4
See Bell Dep. (Exhibit 1) at 129:24-131:2; Jack Healy, “Arrested, Jailed and Charged
with a Felony. For Voting,” N.Y. TIMES (Aug. 2, 2018),
https://www.nytimes.com/2018/08/02/us/arrested-voting-north-carolina.html; Gilbert
Braez, “Convicted felons charged with illegally voting in Hoke,” WRAL.com (Aug. 1,
2019), https://www.wral.com/convicted-felons-charged-with-illegally-voting-in-
hoke/18545541/.
2
Liability Law, have chilled countless eligible voters with criminal convictions from
exercising their right to cast a ballot. Leaders of nonprofit organizations that serve
individuals transitioning out of the criminal justice system have attested to this de facto
disenfranchisement. For example, Diana Powell, the Executive Director of Justice Served
N.C., has testified that “[m]any of [the organization’s] clients have expressed to [her] that
they are afraid to be prosecuted for inadvertently voting before they have completed their
full probation or post-release sentence. . . . These men and women remain incredibly
fearful of casting a ballot even after their voting rights have been restored.”5
5. Justice Served N.C., together with the Community Success Initiative and
the North Carolina State Conference of the NAACP, recently brought suit in Wake
Constitution. On September 4, 2020, the Wake County Superior Court issued a decision
enjoining the NCSBE and other State defendants “from preventing a person convicted of
a felony from registering to vote and exercising their right to vote if that person’s only
remaining barrier to” sentence completion “is the payment of a monetary amount.”6
5
Affidavit of Diana Powell (“Powell Aff.”), CSI (May 6, 2020) at ¶ 21,
https://forwardjustice.org/wp-content/uploads/2020/07/Jacobson-Decl.-and-
Exhibits_US_167801403_2-1.pdf.
6
Order on Plaintiffs’ Motion for a Preliminary Injunction, CSI (Sept. 4, 2020), at 10,
https://assets.documentcloud.org/documents/7202706/19-CVS-15941-Order-on-Plt-
MPI.pdf.
3
North Carolina residents who have completed all aspects of their sentences except for the
full payment of fines, fees and restitution are now eligible to vote in the 2020 presidential
election and beyond. Despite this injunction, however, individuals with only outstanding
financial obligations in connection with a felony conviction might and indeed will opt not
to vote because of the fear of criminal prosecution under the Strict Liability Voting Law.
6. The Strict Liability Voting Law not only harms voters, but it also impedes
the essential work of organizations such as the North Carolina A. Philip Randolph
Institute and Action NC, the plaintiffs in this action (collectively, “Plaintiffs”). These
Carolina through voter registration drives and get-out-the-vote efforts. However, the
specter of prosecution under the Strict Liability Voting Law has substantially impeded
entire communities question whether it’s worth the risk to engage in one of the most
sacred rights in a democratic society.”7 Plaintiffs respectfully ask this Court to expedite
7
Josie Duffy Rice, “How to Punish Voters,” N.Y. TIMES (Oct. 31, 2018),
https://www.nytimes.com/2018/10/31/opinion/election-voting-rights-fraud-
prosecutions.html.
4
8. Plaintiffs seek a declaration that the Strict Liability Voting Law violates the
Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United
the Strict Liability Voting Law; and such other and further relief as this Court deems just
and proper.
10. This Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343 (civil rights
jurisdiction) because this case arises under the United States Constitution and seeks
equitable and other relief for the deprivation of constitutional rights under color of state
law.
11. This Court has personal jurisdiction over all of the Defendants, as each is
12. This Court is authorized to grant declaratory and injunctive relief pursuant
to 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure.
13. This Court is authorized to award attorneys’ fees and costs under 42 U.S.C.
14. Venue is properly set within the United States District Court for the Middle
5
PARTIES
Plaintiffs
APRI”) is a nonprofit, nonpartisan organization and is the North Carolina division of the
national A. Philip Randolph Institute, the senior constituency group of the AFL-CIO
dedicated to advancing racial equality and economic justice. APRI grew out of the legacy
of African-American trade unionists’ advocacy for civil rights and the passage of the
federal Voting Rights Act and continues to advocate for social, political and economic
justice for all working Americans. NC APRI is a statewide organization with local
chapters across the state. Its chapters are located in Durham, Greensboro, the Piedmont,
Raleigh, Roanoke Rapids and Fayetteville. NC APRI has members who are registered
voters across North Carolina. To advance its core mission of advancing racial equality,
NC APRI works to increase access to the polls, voter registration and voter education,
guides and hosts phone banks to encourage voter participation. APRI also organizes
transportation to the polls throughout the early voting period, concentrating its efforts in
during the early voting period using same-day registration. NC APRI engaged in these
efforts in 36 North Carolina counties in 2012. The Strict Liability Voting Law has
substantially impeded the NC APRI’s ability to carry out its mission with respect to
Black community members with criminal convictions. NC-APRI has had difficulty
6
persuading eligible Black individuals with criminal convictions to register to vote and
vote, because of their fear of prosecution under the Strict Liability Voting Law. That is,
the law has rendered it practically impossible for the organization to accomplish a central
component of its mission – registering these individuals to vote and encouraging them to
then vote. Moreover, in certain cases, NC APRI has been forced to decline requests from
Black community members with felony convictions for guidance on voter eligibility
requirements and assistance with registering to vote and voting, due to the risk of
inadvertent violations of the Strict Liability Voting Law. NC APRI has instead forwarded
those requests along to organizations with expertise in the laws governing voting after a
felony conviction. NC APRI has also been forced to divert time, money and resources
from its voter registration and get-out-the-vote activities to educate volunteers on the
community members on the potential risks of voting after a felony conviction before
sentence completion.
reducing the root causes of poverty, underdevelopment, and social and economic
Charlotte, Durham, and Raleigh. Issues that Action NC works on include voter
participation, education, immigration, health care, fair and affordable housing, and
registration drives in neighborhoods and at public sites, generating and distributing issue-
related to elections and voting in these neighborhoods. The Strict Liability Voting Law
has substantially impeded the Action NC’s ability to carry out its mission with respect to
community members with criminal convictions. Action NC has had difficulty persuading
eligible North Carolina residents with criminal convictions to register to vote and vote,
because of their fear of prosecution under the Strict Liability Voting Law. Moreover,
Action NC fears violating N.C. GEN. STAT. § 163-275(13), which imposes criminal
election laws, should they register voters who might ultimately be liable for voting in
Defendants
17. Defendant the NCSBE is the agency responsible for the administration of
the election laws of the State of North Carolina. The NCSBE oversees the county boards
of elections. N.C. GEN. STAT. § 163-22(c). The NCSBE is also responsible for
maintaining the State’s “official list of registered voters,” and ensuring that only
individuals who are eligible to vote are on that list. Id. § 163-82.11(a, c). The NCSBE
drafts the State’s voter registration and other voting-related materials. Id. §§ 163-22(e),
8
advisable, the administration of election laws, frauds and irregularities in elections in any
18. Defendant DAMON CIRCOSTA is the Chair of the NCSBE. Mr. Circosta
20. Defendant JEFF CARMON III is a Member of the NCSBE. Mr. Carmon is
22. Defendant JOSH STEIN is the Attorney General of the State of North
Carolina (“Attorney General”). He is sued in his official capacity. The Attorney General
is statutorily authorized to receive reports of “violations of the election laws” from the
NCSBE “for further investigation and prosecution.” N.C. GEN. STAT. § 163-22(d). The
Attorney General is also statutorily obligated to advise the NCSBE on the preparation of
the State’s Voter Registration Application and other voting and election-related forms,
upon request by the NCSBE.8 The Attorney General is also statutorily required “[t]o
8
N.C. GEN. STAT. § 163-22(e) (“In the preparation of ballots, pollbooks, abstract and
return forms, and all other forms [including the State’s Voter Registration Application],
the State Board of Elections may call to its aid the Attorney General of the State, and it
shall be the duty of the Attorney General to advise and aid in the preparation of these
books, ballots and forms.”).
9
consult with and advise” the State’s District Attorneys “when requested by them, in all
matters pertaining to the duties of their office.” Id. § 114-2(4). Moreover, the Attorney
General may authorize attorneys in the Special Prosecution Division of the Office of the
Attorney General “to prosecute or assist in the prosecution of criminal cases when
STATEMENT OF FACTS
I. North Carolina’s Strict Liability Voting Law Was Enacted for the Specific
Purpose of Deterring Black Individuals From Attempting to Vote.
23. Before the Civil War, the North Carolina Constitution explicitly denied
voting rights in State elections to free Black men. See N.C. CONST. art. I, Section 3, § 3
(1835) (“No 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.”).9
24. Because Black individuals had no right to vote, North Carolina’s pre-Civil
War criminal disenfranchisement law applied only to white individuals. That law did not
9
The complete text of North Carolina’s 1835 Constitution is included in “North Carolina
Constitutional Convention, Journal of the Convention, Called by the Freemen of North-
Carolina, to Amend the Constitution of the State, Which Assembled in the City of
Raleigh, on the 4th of June, 1835, and Continued in Session Until the 11th Day of July
Thereafter” (Raleigh: J. Gales and Son, 1835),
https://docsouth.unc.edu/nc/conv1835/conv1835.html.
10
“infamous crimes” were disenfranchised in North Carolina.10 Disenfranchised individuals
could regain their right to vote by petitioning the Superior Court of Law to restore their
rights of citizenship.11
25. After the Civil War, North Carolinians seized on the State’s criminal
disenfranchisement law to limit Black suffrage. In 1867, during the debates on the
had “received information from gentlemen connected with the Freedmen’s Bureau . . .
that in North Carolina and other States where punishment at the whipping-post deprives
the person of the right to vote, they are now every day whipping negroes for a thousand
and one trivial offenses.”12 Representative Stevens stated that “in one county . . . they had
whipped every adult male negro who they knew of. They were all convicted and
sentenced at once . . . for the purpose of preventing these negroes from voting under the
that granted the right to vote, without regard to race, to “[e]very male person born in the
10
See 1840-41 N.C. Sess. Laws 68–69,
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/166374.
11
Id.
12
Cong. Globe, 39th Cong. 2d Sess. 324 (Jan. 7, 1867), http://lcweb2.loc.gov/cgi-
bin/ampage?collId=llcg&fileName=075/llcg075.db&recNum=3377, 1987) .
13
Id.
11
United States, and every male person who has been naturalized, twenty-one years old or
upward” who had resided in the State for twelve months and the county for thirty days.14
The 1868 Constitution did not include a criminal disenfranchisement provision. During
the years that followed the adoption of the 1868 Constitution, Black citizens participated
27. In 1875, North Carolina amended its constitution to frustrate and impede
criminal disenfranchisement provision, which read as follows: “[N]o person, who, upon
conviction or confession in open Court, shall be adjudged guilty of felony, or any other
crime infamous by the laws of this State, and hereafter committed, shall be deemed an
elector, unless such person shall be restored to the rights of citizenship in a manner
14
N.C. CONST., art. VI, § 1 (1868),
https://www.carolana.com/NC/Documents/NC_Constitution_1868.pdf.
15
See generally William Mabry, White Supremacy and the North Carolina Suffrage
Amendment, 13 N.C. Hist. Rev. 1 (1936).
16
For example, the 1868 Constitution was amended to permit the General Assembly to
enact legislation to change local government positions from elected offices to
appointments. N.C. CONST., amend. XXV (as amended in 1875). “The purpose of this
amendment, as was well understood, was to block control of local government in the
eastern counties by [B]lacks who were in the majority there.” John V. Orth, North
Carolina Constitutional History, 70 N.C. L. Rev. 1759, 1783 (1992). The 1875
constitutional amendments also included provisions establishing segregated education in
public schools and prohibiting interracial marriage. See N.C. CONST., art. IX § 2, art. XIV
§ 8 (as amended in 1875),
https://www.carolana.com/NC/Documents/NC_Constitution_as_Amended_by_1875_Co
nvention.pdf.
12
prescribed by law.”17 It was widely understood that this provision would
28. In 1877, the North Carolina Legislature enacted a new law imposing strict
The law did not include an intent requirement. Rather, criminal liability attached even if
the individual was not aware that he was ineligible to vote due to his criminal conviction.
This racially discriminatory criminal law remains on the books today, virtually
17
N.C. CONST. (1868), art. VI § 1 (as amended in 1875).
18
See, e.g., The Centennial (Warrenton, N.C. Aug. 25, 1876), at 2 (“[T]he great majority
of the criminals are negroes . . . .”).
19
1876–77 N.C. Sess. Laws 537 (emphasis added),
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/196439.
13
A. In 1899, the North Carolina General Assembly reenacted the Strict
Liability Voting Law with unequivocal discriminatory intent.
29. During the 1880s and 1890s, Black individuals in North Carolina slowly
amassed political power through the exercise of their right to vote. In 1898, the State
of Black elected officials in counties around the state, and asserted that “any one can see
how the negro is progressing as a ruler of white men.”20 The Committee warned that
“[g]radually, step by step, the negroes have been given dominion over many of our
towns, and unless the white people unite to stop it, they will obtain control over every
town in the State.”21 The Committee posited that “negro rule is a curse to both races.”22
30. The Committee reported that Black voters accounted for “fully one-third”
of all votes cast “in any general election in the State.”23 According to the Democratic
Committee’s calculations, there were “at least 120,000 negro voters in the State; and it is
20
Democratic Executive Committee of North Carolina, The Democratic Hand Book 145
(1898), https://docsouth.unc.edu/nc/dem1898/dem1898.html.
21
Id. at 48; see also id. at 145 (“[I]f the negro progresses in office-holding in the future as
in the last two or three years, it will not be long before he is in absolute control.”).
22
Id. at 32.
23
Id. at 37.
24
Id.
14
voting fraud, and specifically highlighted purported voting by Black individuals with
felony convictions. The Committee asserted that “[u]nder the election law of 1895, . . .
negro boys under twenty-one years of age, negroes imported from beyond the borders of
the State, negro ex-convicts and negro repeaters were registered and voted galore. The
doors of fraud were thrown wide open to these irresponsible and ignorant voters and no
protection whatsoever was afforded to the honest voters of the State.”25 The Committee
contended that Black individuals “were of a roving disposition, moved from place to
place, and could readily conceal their identity. For the same reason it was easy to import
them from other communities and to register ex-convicts and boys under twenty-one
years of age. These facts . . . made it easy for them, with little danger of detection, to
32. The Committee argued that “this is a white man's country and white men
must control and govern it. They must govern it not only because they are white men, but
because they can do it better than the negro. The negro has, whenever tried, demonstrated
his unfitness and inability to rule. It is better for the negro, as well as for the white man,
that the white man should make and administer the laws.”27 The Committee stated that it
25
Id. at 88; see also id. at 86 (“There are instances . . . in many of the negro counties,
where negro election officers have been shown to have persuaded negroes to register,
knowing them to be ex-convicts or under age . . . .”).
26
Id. at 84.
27
Id. at 38.
15
is “the special mission of the Democratic Party to rescue the white people of the east
from the curse of negro domination,” and promised that “[t]here is one thing the
Democratic Party never has done and never will do—and that is to set the negro up to
rule over white men.”28 The Committee “denounce[d] all enactments of the last two
Legislatures by which cities and towns in the State have been turned over to negro
domination,” and “pledge[d] . . . to enact such laws as will give security and protection to
the property and people of every town and community in the State.”29
33. The Committee represented that “the white men of the State . . . do not
practice carrying elections by fraud.”30 But in the November 1898 election, the
Democratic Party “resorted to the threat of violence,” and held rallies at which “large
American neighborhoods in an effort to scare away potential Republican voters from the
polls.”31 The Democrats “won a majority of the seats in the legislature and quickly began
work on legislation that would effectively disenfranchise African American voters for
28
Id.
29
Id. at 189.
30
Id. at 92.
31
The North Carolina Election of 1898: An Introduction, The University of North
Carolina at Chapel Hill, https://exhibits.lib.unc.edu/exhibits/show/1898/history (last
visited Sept. 24, 2020).
16
decades to come.”32
34. In 1899, the General Assembly enacted An Act to Regulate Elections (the
“1899 Election Act”).33 Consistent with the 1875 constitutional amendment, the 1899
Election Act provided that “persons who upon conviction or confession in open court
shall have been adjudged guilty of felony or other crime infamous by the laws of this
state” after January 1, 1867 “shall not be allowed to register or vote in this state . . .
unless they shall have been legally restored to the rights of citizenship.”34
35. The 1899 Election Act reenacted the Strict Liability Voting Law almost
verbatim:
Like the original version enacted in 1877, the 1899 version of the Strict Liability Voting
32
Id.
33
See 1899 N.C. Sess. Laws 658,
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/229909/rec/1.
34
Id. at 665, https://digital.ncdcr.gov/digital/collection/p249901coll22/id/229916/rec/1.
35
Id. at 681 (emphasis added),
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/229932.
17
Law included no intent requirement.
36. While the 1899 Act imposed felony-level criminal penalties on individuals
with felony convictions who voted without any fraudulent intent, that same Act
through violence or intimidation. For example, the 1899 Act provided that:
• “Any person who by force and violence shall break up or stay any election
by assaulting the officers thereof or depriving them of the ballot boxes or
by any other means, his aiders and abettors, shall be guilty of a
misdemeanor and imprisoned not more than three months and pay such fine
as the court shall adjudge, not exceeding one hundred dollars.36
• “If any person shall interrupt or disturb the registrar while actually engaged
in the registration of voters or the registrar or judges of election while
holding the election or in counting and adding up the result thereof, or the
board of county canvassers or the state board of canvassers while engaged
in the discharge of their official duties, or behave in a disorderly or
boisterous manner in the presence of said officers while so engaged in the
legal discharge of the duties of their several positions, such person shall be
guilty of a misdemeanor and shall be fined not more than fifty dollars or
imprisoned not more than thirty days.”38
36
Id. at 676, https://digital.ncdcr.gov/digital/collection/p249901coll22/id/229927.
37
Id. at 677, https://digital.ncdcr.gov/digital/collection/p249901coll22/id/229928.
38
Id. at 676–77, https://digital.ncdcr.gov/digital/collection/p249901coll22/id/229927.
18
the state constitution (the “Suffrage Amendment”) that broadened the scope of the state’s
The Suffrage Amendment also established a poll tax, a literacy test and a grandfather
voters.” Gingles v. Edmisten, 590 F. Supp. 345, 359 (E.D.N.C. 1984), aff’d in part, rev’d
B. The key features of the Strict Liability Voting Law have remained
intact since 1899.
38. In 1931, the North Carolina General Assembly enacted An Act to Make
More Effective the Control of the State Over Corrupt Practices in Primaries and
Elections (“1931 Act”).41 The 1931 Act reenacted many of the voting crimes included in
39
1900 N.C. Sess. Laws 55, amending N.C. CONST., art. VI, § 2,
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/226838.
40
Id.
41
See 1931 N.C. Sess. Laws 438,
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/239722.
19
the 1899 Act, including the Strict Liability Voting Law.42 There were some differences
between the 1899 Act and the 1931 Act. For instance, the 1931 Act grouped together
misdemeanor-level election crimes and felony-level election crimes.43 The 1931 Act also
provided uniform penalties for felony-level election crimes: any individual convicted of a
felony-level election crime, including a violation of the Strict Liability Voting Law,
would “be imprisoned in the State’s prison not less than four months or fined not less
39. The 1931 Act streamlined the language of the 1899 version of the Strict
Liability Voting Law, and specified that the law applied with equal force to primary
elections. But the key features of the 1931 version of the Strict Liability Voting Law were
identical to the 1899 Act version—that is, voting while ineligible because of a prior
felony conviction was itself a felony under North Carolina law, and one for which no
42
See id. at 441-445,
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/239725.
43
See id.
44
Id. at 443, https://digital.ncdcr.gov/digital/collection/p249901coll22/id/239727.
20
1899 Act 1931 Act
Statutory “[I]f any person . . . convicted of “It shall be unlawful: . . . [f]or any
language any crime which excludes him person, convicted of a crime which
from the right of suffrage excludes him from the right of
. . . shall vote at the election suffrage, to vote at any primary or
without having been restored to election without having been
the rights of citizenship he shall restored to the right of citizenship in
be deemed guilty of an infamous due course and by the method
crime . . . ” 45 provided by law”46
45
1899 N.C. Sess. Laws 681,
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/229932.
46
1931 N.C. Sess. Laws 444,
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/239728.
47
Any crime punishable by imprisonment was a felony at the time of the 1899 Act. See
State v. Bryan, 16 S.E. 909, 909 n.1 (N.C. 1893) (“Act 1891, c. 205 declares ‘that a
felony is a crime which may be punishable by either death or imprisonment. Any other
crime is a misdemeanor.’”).
21
40. The 1931 Act also reenacted the misdemeanor-level penalties codified in
the 1899 Act for active interference with elections through violence or intimidation.
“Any person who by force and violence “It shall be unlawful: . . . For any person
shall break up or stay any election by to break up or by force or violence to stay
assaulting the officers thereof or depriving or to interfere with the holding of any
them of the ballot boxes or by any other primary or election, to interfere with the
means, his aiders and abettors, shall be possession of any ballot box, election
guilty of a misdemeanor . . . .”48 book, ticket or return sheet by those
entitled to possession of the same under
the law . . . .”49
“Any person who shall discharge from “It shall be unlawful: . . . For any person,
employment, withdraw patronage from, or directly or indirectly, to discharge or
otherwise injure, threaten, oppress or threaten to discharge from employment, or
attempt to intimidate any qualified voter otherwise intimidate or oppress any
of this state because of the vote such voter legally qualified voter on account of any
may or may not have cast in any election vote such voter may cast or consider or
shall be guilty of a misdemeanor.”50 intend to cast, or not to cast, or which he
may have failed to cast;”51
“If any person shall interrupt or disturb the “It shall be unlawful: . . . For any person
registrar while actually engaged in the to be guilty of any boisterous conduct so
registration of voters or the registrar or as to disturb any member of any election
judges of election while engaged in or canvassing board or any registrar or
holding the election or in counting and judge of elections in the performance of
adding up the result thereof, or the board
of county canvassers or the state board of
48
1899 N.C. Sess. Laws 676 (emphasis added), supra note 36.
49
1931 N.C. Sess. Laws 441 (emphasis added),
https://digital.ncdcr.gov/digital/collection/p249901coll22/id/239725.
50
1899 N.C. Sess. Laws 677 (emphasis added), supra note 37.
51
1931 N.C. Sess. Laws 441 (emphasis added), supra note 49.
22
1899 Act—Misdemeanors 1931 Act—Misdemeanors
41. Since 1931, the General Assembly has changed just one single word (and
removed one comma) in the Strict Liability Voting Law, as noted below:
The Strict Liability Voting Law has otherwise remained completely intact.
42. The General Assembly has also left intact the 1899 laws imposing low-
level criminal penalties for certain serious election crimes. Under present-day North
violence, or to intimidate a legally qualified voter. N.C. GEN. STAT. §§ 163-274(4–5, 7).
52
1899 N.C. Sess. Laws 676–77, supra note 36.
53
1931 N.C. Sess. Laws 441 (emphasis added), supra note 49.
54
N.C. GEN. STAT. § 163-275(5) (edited to reflect changes from 1931 N.C. Sess. Laws
444).
23
1899 Act—Misdemeanors Present-Day Law—Misdemeanors
“Any person who by force and violence “It shall be unlawful: . . . For any person
shall break up or stay any election by to break up or by force or violence to stay
assaulting the officers thereof or depriving or interfere with the holding of any
them of the ballot boxes or by any other primary or election, to interfere with the
means, his aiders and abettors, shall be possession of any ballot box, election
guilty of a misdemeanor . . . .”55 book, ballot or return sheet by those
entitled to possession of the same under
the law . . . .”56
“Any person who shall discharge from “It shall be unlawful: . . . For any person,
employment, withdraw patronage from, or directly or indirectly, to discharge or
otherwise injure, threaten, oppress or threaten to discharge from employment, or
attempt to intimidate any qualified voter otherwise intimidate or oppose any legally
of this state because of the vote such voter qualified voter on account of any vote
may or may not have cast in any election such voter may cast or consider or intend
shall be guilty of a misdemeanor.”57 to cast, or not to cast, or which that voter
may have failed to cast;”58
55
1899 N.C. Sess. Laws 676 (emphasis added), supra note 36.
56
N.C. GEN. STAT. § 163-274(4) (emphasis added).
57
1899 N.C. Sess. Laws 677 (emphasis added), supra note 37.
58
N.C. GEN. STAT. § 163-274(7) (emphasis added).
24
1899 Act—Misdemeanors Present-Day Law—Misdemeanors
“If any person shall interrupt or disturb the “It shall be unlawful: . . . For any person
registrar while actually engaged in the to be guilty of any boisterous conduct so
registration of voters or the registrar or as to disturb any member of any election
judges of election while engaged in board or any chief judge or judge of
holding the election or in counting and election in the performance of that
adding up the result thereof, or the board person’s duties as imposed by law.”60
of county canvassers or the state board of
canvassers while engaged in the discharge
of their official duties, or behave in a
disorderly or boisterous manner in the
presence of said officers while so engaged
in the discharge of their official duties, or
obstruct such officers in the legal
discharge of the duties of their several
positions, such person shall be guilty of a
misdemeanor . . . .”59
43. The Strict Liability Voting Law is an outlier in North Carolina’s election
laws. Virtually every other election crime punishable as a Class I felony requires intent.
59
1899 N.C. Sess. Laws 676–77, supra note 37.
60
N.C. GEN. STAT. § 163-274(5) (emphasis added).
25
• “For any person who is an election officer, a member of an election
board or other officer charged with any duty with respect to any primary
or election, knowingly to make any false or fraudulent entry on any
election book or any false or fraudulent returns, or knowingly to make
or cause to be made any false statement on any ballot, or to do any
fraudulent act or knowingly and fraudulently omit to do any act or make
any report legally required of that person.” Id. § 163-275(3) (emphasis
added).
• “For any person knowingly to swear falsely with respect to any matter
pertaining to any primary or election.” Id. § 163-275(4) (emphasis
added).
• “For any person with intent to commit a fraud to register or vote at more
than one precinct or more than one time, or to induce another to do so,
in the same primary or election, or to vote illegally at any primary or
election.” Id. § 163-275(7) (emphasis added).
• “For any chief judge or any clerk or copyist to make any entry or copy
with intent to commit a fraud.” Id. § 163-275(8) (emphasis added).
44. Yet there is no intent requirement of any kind under the Strict Liability
Voting Law. As the NCSBE has explained, “[t]he language contained in the felon voting
statute does not include an element of intent, such that violating the statute does not
require evidence that the statute was knowingly violated for a possible violation to have
occurred.”61
61
August 12, 2018 Letter from the Chief Investigator of the NCSBE to the District
Attorney for Judicial District 16A (“Aug. 12, 2018 NCSBE Letter”) (Exhibit 3), at 1.
26
45. The penalties for violating the Strict Liability Voting Law are exceedingly
Carolina who are no longer incarcerated but are still serving some aspect of a sentence
for a felony conviction—the category of individuals the Strict Liability Voting Law
targets. While Black individuals account for only 22% of the North Carolina’s
47. In the course of an audit of the 2016 presidential election, the NCSBE
determined that 441 individuals with felony convictions may have voted before their
62
See N.C. GEN. STAT. § 15A-1340.17; Bell Dep. (Exhibit 1) at 127:4–9.
63
United States Census, Quick Facts North Carolina,
https://www.census.gov/quickfacts/NC (last visited Sept. 23, 2020); Expert Report on
North Carolina’s Disenfranchisement of Individuals on Probation and Post-Release
Supervision, Professor Frank R. Baumgartner, Richard J. Richardson Distinguished
Professor of Political Science, University of North Carolina at Chapel Hill, CSI (May 8,
2020), at 3–4, https://www.documentcloud.org/documents/6887554-Expert-Report-of-
Frank-R-Baumgartner-Reenfranch.html.
27
sentences were completed.64 66% of these individuals were Black.65
48. The NCSBE referred these cases to the state’s District Attorneys, as
required under state law. See N.C.G.S. § 163-22(d) (requiring the NCSBE to “report
violations of the election laws to the Attorney General or district attorney or prosecutor of
felon who has voted may not have been aware of the unlawfulness of his actions.”67
“determined there was insufficient evidence to prove that the defendant was ever notified
50. But in April 2018, the District Attorney of Alamance County charged
64
Post-Election Audit Report (Exhibit 2) at 3.
65
NCSBE Response to Public Records Request (May 29, 2018) (Exhibit 4).
66
See also Post-Election Audit Report at 3.
67
Id. at Appendix 7.
68
August 9, 2017 Letter from the Chief Investigator of the NCSBE to the General
Counsel of the North Carolina Department of Public Safety, the Chief Legal Counsel for
Governmental Affairs of the Judicial Branch of the North Carolina Administrative Office
of the Courts, and the President of the North Carolina Conference of District Attorneys
(“Aug. 9, 2017 NCSBE Letter”) (Exhibit 5), at 1; see also id. at 4-8 (communications
from District Attorneys declining to prosecute violations of the Strict Liability Voting
Law).
28
twelve individuals (“the Alamance 12”) with violating the Strict Liability Voting Law.69
Black individuals comprise less than 21% of Alamance County’s population.70 But nine
members of the Alamance 12 (75% of those prosecuted) were Black. 71 The Washington
Post reported that “[i]n the case of the Alamance 12, . . . most seem to have had no intent
51. The New York Times separately interviewed five of the members of the
Alamance 12. Each “said their votes were an unwitting mistake—a product of not
understanding the voter forms they signed and not knowing the law. They said they
believed they were allowed to vote because election workers let them fill out voter
registration and eligibility forms, then handed them ballots. They said they never would
52. Several Black members of the Alamance 12 moved to dismiss the charges
69
Healy, supra note 4.
70
United States Census, Quick Facts: Alamance County, North Carolina,
https://www.census.gov/quickfacts/alamancecountynorthcarolina (last visited Sept. 23,
2020).
71
Healy, supra note 4.
72
Editorial Board, “An Assault on minority voting continues in North Carolina,” THE
WASH. POST (Aug. 12, 2018), https://www.washingtonpost.com/opinions/an-assault-on-
minority-voting-continues-in-north-carolina/2018/08/12/b60ea52c-9a8f-11e8-8d5e-
c6c594024954_story.html.
73
Healy, supra n. 4.
29
on the grounds that the Strict Liability Voting Law violates the Equal Protection Clauses
of the United States and North Carolina constitutions.74 The Equal Protection claims were
never adjudicated because the defendants ultimately pled guilty to misdemeanor charges
of obstruction of justice, in exchange for a dismissal of the felony charges under the Strict
53. In August 2019, the Hoke County District Attorney charged four
individuals with violating the Strict Liability Voting Law.76 All four individuals are
Black.77
54. One of the individuals charged in Hoke County, Lanisha Bratcher, was
arrested the day after she was discharged from the hospital for a miscarriage.78 She was
74
SCSJ Challenges NC Law that punishes returning citizens with felonies for voting
while ineligible, Southern Coalition for Social Justice (June 8, 2018),
https://www.southerncoalition.org/scsj-challenges-nc-law-punishes-returning-citizens-
felonies-voting-ineligible/.
75
Statement Regarding Alamance County Voters Accused of Voting While Ineligible,
Southern Coalition for Social Justice (Aug. 13, 2018),
https://www.southerncoalition.org/statement-regarding-alamance-county-voters-accused-
voting-ineligible/.
76
Baez, supra note 4.
77
Id.
78
Sam Levine, “A black woman faces prison because of a Jim Crow-era plan to ‘protect
white voters,’” GUARDIAN (Dec. 16, 2019), https://www.theguardian.com/us-
news/2019/dec/16/north-carolina-felony-vote-law-black-woman.
30
mourning the loss of her baby when the police came to her door.79 Ms. Bratcher
explained that she did not know she was ineligible to vote in the 2016 election. “I had no
know that we should know we should not do something then we should not be on the list
55. Like the Alamance County defendants, Ms. Bratcher moved to dismiss the
charges against her on the grounds that the Strict Liability Voting Law violates the Equal
Protection Clauses of the United States and North Carolina constitutions.81 The District
Attorney’s Office responded by dismissing the charges against her under the Strict
Liability Voting Law, and then bringing two new indictments that doubled the felony
charges against her under a different provision of the same statute (N.C. GEN. STAT.
§ 163-275(4)).82
56. Some of the individuals prosecuted under the Strict Liability Voting Law
79
Id.
80
Id.
81
Motion to Dismiss Under the 14th Amendment of the U.S. Constitution and Article I,
§ 19 of the N.C. Constitution, State of North Carolina v. Bratcher-Bain, No. 19-CRS-
051171 (N.C. Super. Ct. Oct. 8, 2019), http://renapply.web.unc.edu/files/2019/12/S-v-
Bratcher-EP-Discrim-MTD-Oct-2019.pdf.
82
Sam Levine, “A black woman faces prison for a voting mistake. Prosecutors just
doubled the charges,” GUARDIAN (July 21, 2020), https://www.theguardian.com/us-
news/2020/jul/21/voting-arrest-racist-law-north-carolina-lanisha-brachter.
31
have expressed a deep-seated fear of voting in the future. “[I]t’s going to really take a
mighty wind from heaven to make me vote again,” says Keith Sellars, a 45-year old
Black member of the Alamance 12 who was “arrested . . . in the middle of a highway,
while his 10- and 7-year old daughters cried in the back seat.”83
57. Anthony Haith, another Black member of the Alamance 12, has said, “I am
still fearful of voting now. I do not want to go to jail for voting. . . . I honestly do not
know if I will ever vote again[.]”84 Mr. Haith has “said he would tell his four children
58. Taranta Holman, also a Black member of the Alamance 12, has similarly
said he will never cast another ballot. “Even when I get this cleared up, I still won’t vote.
59. Lanisha Bratcher, whose felony charges remain pending, says “[s]he’s not
83
Sam Levine, “They Didn’t Know They Were Ineligible to Vote. A Prosecutor Went
After Them Anyway,” HUFFPOST (Aug. 13, 2018),
https://www.huffpost.com/entry/alamance-county-felon-
voting_n_5b71f4d8e4b0530743cca87d.
84
Affidavit of Anthony Haith (“Haith Aff.”) at ¶¶ 10, 14, Exhibit A. to Brief of Amici
Curiae, North Carolina Justice Center and Down Home NC, CSI (July 23, 2020),
https://assets.documentcloud.org/documents/7009817/Amicus-NC-Justice-Center-and-
Down-Home.pdf.
85
The Observer Editorial Board, “Another Attack on Voting in North Carolina,”
CHARLOTTE OBSERVER (Aug. 14, 2018),
https://www.charlotteobserver.com/opinion/editorials/article216646385.html.
86
Healy, supra note 4.
32
sure if she’ll ever vote again, even once she’s legally allowed to.”87 But her husband has
urged her to reconsider: “If you don’t vote again, then the law would have done exactly
what it was supposed to do, which is to suppress your vote. . . . If they’ve got you afraid,
III. The Strict Liability Voting Law Fails to Provide Fair Notice of Criminal
Liability.
60. The Strict Liability Voting Law renders it a Class I felony “[f]or any person
convicted of a crime which excludes the person from the right of suffrage, to vote at any
primary or election without having been restored to the right of citizenship in due course
61. But the Strict Liability Voting Law does not define which crimes
“exclude[] the person from the right of suffrage,” nor does it provide any information
which crimes are disenfranchising, a prospective voter must turn to the statute entitled,
87
Levine, supra note 78.
88
Id.
33
N.C. GEN. STAT. § 163-55(a)(2) (“Criminal Disenfranchisement Law”). The Criminal
voter must look outside the state’s election code to Chapter 13, entitled Citizenship
Restored. Pursuant to N.C. GEN. STAT. § 13-1 (the “Citizenship Restoration Law”), an
individual convicted of a disenfranchising crime regains citizenship rights upon his or her
follows:
Id. (emphasis added). The Citizenship Restoration Law does not specifically mention the
63. Neither the Citizenship Restoration Law nor any other North Carolina
statute defines the term “unconditional discharge.” The NCSBE also does not define the
on the section of the NCSBE’s website entitled, Registering as a Person in the Criminal
64. The State has construed the Citizenship Restoration Law as “preclud[ing]
the restoration of citizenship rights until the completion of the sentence, including any
89
The Citizenship Restoration Law, which provides for automatic re-enfranchisement,
was first enacted in 1971. Prior to the enactment of the Citizenship Restoration Law,
individuals with felony convictions had to petition the court for the restoration of voting
rights.
90
See North Carolina Voter Registration Application, available at
https://dl.ncsbe.gov/Voter_Registration/NCVoterRegForm_06W.pdf (last visited Sept.
23, 2020); see also Registering as a Person in the NC Criminal Justice System, NCSBE,
https://www.ncsbe.gov/registering/who-can-register/registering-person-nc-criminal-
justice-system (last visited Sept. 23, 2020).
91
Order on Plaintiffs’ Motion for Summary Judgment, CSI (Sept. 4, 2020), at 5,
https://assets.documentcloud.org/documents/7202707/19-CVS-15941-Order-on-Plt-
MSJ.pdf.
35
Carolina in 1994; the General Assembly instead imposed post-release supervision for all
individuals convicted of felonies under the Structured Sentencing Act.92 Yet until a few
months ago, the State’s Voter Registration Application, Absentee Ballot Application and
65. The NCSBE’s script for poll workers to use when verifying voter eligibility
also failed to mention post-release supervision; poll workers were simply instructed to
ask whether prospective voters “have completed their sentence, including any probation
or parole.”94 Defendant Karen Brinson Bell, the Executive Director of the NCSBE, has
question “would be allowed to vote” by the poll worker, but “could then be prosecuted
unsupervised probation; these individuals may not even realize that they are legally on
92
See Post-Release Supervision and Parole Commission, North Carolina Department of
Public Safety, https://www.ncdps.gov/about-dps/boards-commissions/post-release-
supervision-parole-commission.
93
See Prior Version of the North Carolina Voter Registration Application, at 2,
Instruction for Section 1 (Exhibit 6); Prior Version of the One Stop Application (Exhibit
7); Bell Dep. (Exhibit 1) at 82:18–86:9, 94:14–96:4, 112:1-23.
94
Bell Dep. (Exhibit 1) at 98:3–100:17.
95
Id. at 105:12–106:5.
36
probation because they are not subject to the oversight of a probation officer.96
67. The confusion caused by the State’s voting materials is exacerbated by the
State’s inadequate procedures for notifying individuals with felony convictions that they
are ineligible to vote. When the NCSBE “conducted interviews of suspected violators” of
the Strict Liability Voting Law following the 2016 post-election audit, the NCSBE
discovered “a wide pattern of defendants in multiple counties who claim[ed] they were
never informed of their loss of voting rights upon conviction and sentencing.”97
68. The NCSBE determined that there were “deficiencies in the notice provided
to felons who are still serving an active felony sentence, notably during the periods of
probation and parole—the window during which current felons tend to vote.”98
Specifically, the NCSBE found that “there was no documented procedure by which
convicted felons were informed of the loss of their voting rights by probation officers
“associated court judgments and plea agreements . . . did not inform felons upon a plea or
96
In 2019, 249 individuals convicted of felonies were sentenced to unsupervised
probation. Structured Sentencing Statistical Report: Fiscal Year 2019, North Carolina
Sentencing and Policy Advisory Commission, at 21,
https://www.nccourts.gov/assets/documents/publications/FY-2019-Statistical-Report-
Web_Combined.pdf?H5Ee8hJhBdhzh_BVFmV4L9tcbiQXnmaB.
97
Aug. 9, 2017 NCSBE Letter (Exhibit 5), at 1.
98
Id. at 2.
99
Aug. 12, 2018 NCSBE Letter (Exhibit 3), at 2.
37
at sentencing that they had lost their eligibility to vote while serving an active felony
69. Neither the standard guilty plea form in North Carolina nor the statutes
requiring judges to inform defendants of their rights upon conviction contain any
reference to the loss of voting rights. See, e.g., N.C. GEN. STAT. § 15A-1022. Under
North Carolina law, the only entity statutorily required to notify an individual with a
felony conviction of the loss of voting rights pending full sentence completion is the
county board of elections, which must send removal letters “to the last known address of
registered voters who appear on the convicted felon list.”101 List maintenance, though—
that is, the accuracy of North Carolina’s voter registration lists—remains the ultimate
mandated notification procedures apply to individuals who were not registered to vote at
70. Anthony Haith, one of the members of the Alamance 12, is among the
the 2016 election, I was still on probation for a previous conviction. I did not know I was
unable to vote, or I would not have voted. When I was put on probation, I was informed
100
Id. at 2. The North Carolina Department of Public Safety has since revised its
probation brochure “to include information concerning loss of voting rights.” Id.
101
Aug. 9, 2017 NCSBE Letter (Exhibit 5) at 2; see also N.C. GEN. STAT. §163-
82.14(c)(3).
38
of many things that I could not do or have. However, no one ever told me that I could not
vote.”102
71. The NCSBE has recognized that although “individuals are required to
affirm that they are not serving an active felony sentence both when registering to vote
and presenting to vote,” “not all voters read this language prior to signing” the forms.103
This may be the consequence of low adult literacy levels through the State: For example,
24% of adults in Alamance County and 26% of adults in Hoke County lack basic literacy
skills.104
72. The NCSBE has also acknowledged that “some forms, such as the federal
voter registration application, do not contain warnings against registering and voting
while serving an active felony sentence, since laws concerning felon voting rights vary
73. Under North Carolina law, county boards of elections are required to
remove individuals with felony convictions from the voter registration rolls. N.C. GEN.
STAT. § 163-82.14(a)(1), (c)(3). But in the course of its post-2016 election investigations,
102
Haith Aff., supra note 84 at ¶ 5.
103
Post-Election Audit Report (Exhibit 2) at Appendix 7.
104
Literacy Map Gap, Barbara Bush Foundation for Family Literacy,
http://map.barbarabush.org/overview/#intro (last visited Sept. 24, 2020).
105
Aug. 9, 2017 NCSBE Letter (Exhibit 5), at 2.
39
the NCSBE discovered that county boards of elections had not consistently done so.106
The NCSBE recognized that the failure to remove individuals with felony convictions
from the voter registration rolls had resulted in “unintentional violations” of the Strict
Liability Voting Law.107 The NCSBE explained that “[a]n individual may, for instance,
legally register to vote before becoming a felon and then appear at the polls while on
74. Since the 2016 post-election audit, the NSCBE has redesigned certain of its
voting forms with checkboxes “to ensure participants are aware of voter
cannot be currently serving a felony sentence.110 The only places on the Voter
Registration Application that reference ineligibility for serving a current felony sentence
are the fine print at the bottom of the form and the dense application instructions.111 The
NCSBE has also implemented “new processes . . . to ensure [that] those serving felony
sentences do not remain on the voter rolls,” as well as software improvements “to check
106
Post-Election Audit Report (Exhibit 2) at 2–4.
107
Id. at 3.
108
Id.
109
Id. at 4 & Appendix 8.
110
See North Carolina Voter Registration Application, supra note 90.
111
Id.
40
felon status at the time of registration.”112 In addition, the Department of Public Safety
has revised its probation brochure at the NCSBE’s suggestion “to include information
75. While these improvements to the State’s notification procedures and voter
registration roll protocols may reduce some future unintentional violations of the Strict
Liability Voting Law, these changes still do not provide constitutionally-adequate notice
to, for example, voters on unsupervised probation who may be completely unaware that
they are still serving a felony sentence. Moreover, the changes also do nothing to protect
from criminal liability the individuals who voted in the 2016 election before sentence
completion. Those individuals may still be prosecuted under the Strict Liability Voting
Law at any time, as “no statute of limitations bars the prosecution of a felony” in North
Carolina. State v. Taylor, 713 S.E.2d 82, 90 (N.C. Ct. App. 2011).
76. Even with the recent changes made by the NCSBE, it is still entirely
supervision for a felony conviction. For example, the section of the NCSBE’s website
NC Criminal Justice System.”114 An individual who is still serving a sentence for an out-
112
Post-Election Audit Report (Exhibit 2) at 2–4.
113
Aug. 12, 2018 NCSBE Letter (Exhibit 3), at 2.
114
See supra note 90.
41
of-state or federal felony conviction may not realize that he or she is ineligible to vote in
North Carolina. Such an individual could face felony-level prosecution under the Strict
Liability Voting Law for mistakenly voting in reliance on the NCSBE’s own guidance.
77. Since the CSI decision, the NCSBE has updated its website with the
following guidance: “[Y]ou may register to vote and vote if you are serving an extended
term of probation, post-release supervision, or parole, you have outstanding fines, fees or
restitution, and you do not know of any other reason that your probation, post-release
supervision, or parole was extended.”115 This guidance advises individuals that they “may
. . . vote” if they are unaware that they are subject to any other conditions of their felony
sentence other than the payment of fines, fees and/or restitution.116 Yet under the Strict
Liability Voting Law, an individual with a felony conviction who votes before
prosecution, irrespective of whether that individual believed in good faith that he or she
was eligible to vote. The NCSBE’s updated guidance does not mention the Strict
Liability Voting Law or how it might impact individuals who vote based on an erroneous
115
Id.
116
Id.
42
IV. The Strict Liability Voting Law Deters Eligible Individuals From Voting.
78. The vagueness of the Strict Liability Voting Law, coupled with the recent
prosecutions under this law, have caused eligible individuals with criminal convictions to
refrain from voting, for fear of unintentionally violating the law and triggering criminal
charges. Corey Purdie, the Executive Director of Wash Away Unemployment, has
personally been told by North Carolina residents with past criminal convictions “that they
have a fear of voting and getting arrested for doing so.” 117
Carolina Justice Center and Down Home NC, “African-American voters are discouraged
from attempting to exercise their fundamental right to vote because of the fear caused by
the disenfranchisement laws and their enforcement. This includes those with no felony
records.”119
117
Affidavit of Corey Purdie, CSI (May 6, 2020), at ¶ 23, https://forwardjustice.org/wp-
content/uploads/2020/07/Jacobson-Decl.-and-Exhibits_US_167801403_2-1.pdf.
118
Black individuals comprise just 22% of the State’s population. Quick Facts North
Carolina, supra note 63. But in 2019, for instance, 44% of all individuals convicted of
felonies and 41% of all individuals convicted of misdemeanors in North Carolina were
Black. Structured Sentencing Statistical Report, supra note 96, at 7, 38.
119
Brief of Amici Curiae, North Carolina Justice Center and Down Home NC, CSI (July
24, 2020), at 1 (emphasis added),
https://assets.documentcloud.org/documents/7009817/Amicus-NC-Justice-Center-and-
Down-Home.pdf; see also id. at 5 (“Not only are the prosecuted voters themselves fearful
43
80. Confusion regarding eligibility to vote is a significant problem among
individuals with past criminal convictions. During oral argument in CSI, Judge Keith
Gregory of the Wake County Superior Court observed that even “when the person is
eligible to vote, there’s confusion there as to their eligibility.120 Diana Powell, the
Executive Director of Justice Served N.C., has testified that she “regularly speak[s] with
people who are confused as to whether or not they are eligible to vote after having been
Initiative, has testified that “[t]he current law creates confusion among [his] clients about
whether they have the ability to vote after they have been released from incarceration or
while they are on probation.”122 Mr. Purdie of Wash Away Unemployment has testified
similarly.123
81. This rampant confusion is due in part to the State’s inadequate procedures
for notifying individuals with felony convictions of the restoration of their voting rights.
of ever resuming voting after their prosecutions, but community members are also
impacted by the prosecutions, subsequently becoming less likely to engage in the voting
process.”).
120
Hearing Transcript, CSI (Aug. 19, 2020), at 181,
https://www.documentcloud.org/documents/7203894-CSI-v-Moore-transcript.html.
121
Powell Aff., supra note 5, at ¶ 20.
122
Affidavit of Dennis Gaddy, CSI (May 6, 2020), at ¶ 17, https://forwardjustice.org/wp-
content/uploads/2020/07/Jacobson-Decl.-and-Exhibits_US_167801403_2-1.pdf.
123
Purdie Aff., supra note 117, at ¶ 23.
44
When individuals complete their sentences for felony convictions in North Carolina state
courts, the Department of Public Safety provides them with a notification of the
restoration of their voting rights, along with an application to register to vote. See N.C.
GEN. STAT. § 163.82.20A. But these voting rights restoration notifications are “striking
for their lack of clarity. The voting rights information is buried in densely worded
pamphlets . . . distributed in an exit packet that often contains a lot of other important
documents, and this may cause information about voting rights to be crowded out.”124
registered voters of their ineligibility to vote following a felony conviction, see N.C. GEN.
STAT. §163-82.14(c)(3), neither the NCSBE nor the county boards of elections advise
individuals who have completed their sentences that they are eligible to vote.126 During
124
Marc Meredith and Michael Morse, Do Voting Rights Notification Laws Increase Ex-
Felon Turnout?, ANNALS, AAPSS, 65651 (Jan. 2014) at 241240,
https://www.sas.upenn.edu/~marcmere/workingpapers/FelonNotification.pdf.
125
See, e.g., Bell Dep. (Exhibit 1) at 65:24–66:9.
126
Id. at 41:16–23 (Q: “So after a person finishes their felony sentence, does either the
State Board of Elections or a county board of elections send voters a notification telling
them they’re now once again eligible to vote?” A: We do not send a letter . . . of that
nature. Sorry.”); see also id. at 46:15–47:4.
45
oral argument in CSI, Judge Gregory of the Wake County Superior Court recognized that
this one-way notification protocol inevitably results in fear and confusion among
83. Individuals with criminal convictions do not always know whether they
have completed all aspects of their sentences for felony convictions. Diana Powell, the
Executive Director of Justice Served, has testified that she has “spoken to individuals
who are unsure of whether or not they are on misdemeanor probation or felony probation,
as well as individuals who are unsure if their probation has been extended due to an
inability to pay court costs, fees, fines or restitution.”128 Such an individual would not be
able to obtain guidance concerning his or her eligibility to vote from the NCSBE. The
Executive Director of the NCSBE testified that when an individual with a felony
conviction is “not certain” regarding the completion of his or her sentence, “the best thing
[she] can do as an election official is to say, ‘That’s outside the scope of elections and
you should speak with your officer as to whether you have completed your sentence or
127
Transcript, CSI, supra 120, at 173.
128
Powell Aff., supra note 5, at ¶ 20.
46
not.’”129
Carolina “has been exacerbated by the prosecutions that have occurred across the state,
chilling the voting activity of many members of society.”130 Plaintiffs and many similar
organizations have reported the “fear caused by prosecutions on their work” to register
voters.131 Their “workers encounter people who have never been disqualified, or who are
no longer disqualified, from voting who hold on to apprehension based on the pervasive
85. North Carolina’s voter challenge laws exacerbate this pervasive fear. Under
these laws, a registered voter may challenge a prospective voter’s eligibility to vote “if
the challenger knows, suspects or reasonably believes such a person not be qualified and
voter’s eligibility on the basis of a criminal conviction, a registered voter must simply
complete a Voter Challenge Form and check the box that states: “The person has been
adjudged guilty of a felony and the person’s rights of citizenship have not been
129
Bell Dep. (Exhibit 1), at 88:12–89:19.
130
Amicus Brief of the North Carolina Justice Center and Down Home NC, supra note
119, at 1.
131
Id. at 5.
132
Id.
47
restored.”133 North Carolina law provides that “[i]f a registered voter is challenged as
having been convicted of any crime which excludes him from the right of suffrage, he
shall be required to answer any question in relation to the alleged conviction[.]” N.C.
GEN. STAT. § 163-90. Even though the answers may not be used against them, the
86. In the event the prospective voter is deemed ineligible based on a voter
challenge, the county board of election may refer the case to the NCSBE. See N.C. GEN.
STAT. § 163-33(3) (providing that the county board of elections must “investigate . . .
violations of laws by elections officers and other persons, and report violations to the
State Board of Elections”). The NCSBE may then choose to investigate the case.134
87. Because of the potential threat of voter challenges, the NCSBE Website
133
A sample Voter Challenge Form is available at
http://nebula.wsimg.com/132d4773df0be073741b179d330b5e06?AccessKeyId=46DCFE
3716DFE59A2104&disposition=0&alloworigin=1.
134
See Post-Election Audit Report (Exhibit 2), at 3 (explaining that the NCSBE “initiates
investigations into possible cases of felons voting through a system of data audits
followed by investigator review, referrals from county boards of election and tips from
the public”).
48
Forfeited Rights of Citizenship. This is not required to
register to vote, but will prove your eligibility to vote if
someone challenges your registration.135
over the inmate, probationer, parolee or defendant at the time his rights of citizenship are
restoration of his rights of citizenship.” N.C. GEN. STAT. § 13-2(a). Upon information and
must submit an application to “the clerk in the county where such person resides” along
with “any paper writing from the agency of any other state or of the United States which
had jurisdiction over such person, which shows that the conditions of [the Citizenship
Restoration Law] have been met.” N.C. GEN. STAT. § 13-2(b). The NCSBE Website
provides no instructions for how and where individuals with federal or out-of-state felony
135
Registering as a Person in the NC Criminal Justice System, supra note 90.
49
convictions can apply.
90. Individuals who have completed their sentences for felony convictions may
they can no longer locate the certificate they received, or because they never received
such a certificate in the first place. These individuals may not know how to obtain a
without one, for fear of being challenged and potentially facing prosecution under the
91. Individuals who have completed all aspects of their sentences for felony
convictions except for the payment of fines, fees and/or restitution may still be afraid to
vote, despite the North Carolina Superior Court’s September 4, 2020 decision in CSI.
Under North Carolina law, an individual may be on probation for the sole purpose of
paying fines, fees and/or restitution. See, e.g., N.C. GEN. STAT. § 15A-1342(a). The North
Carolina Superior Court specifically enjoined the State defendants “from preventing a
person convicted of a felony from registering to vote and exercising that person’s right to
is the payment of a monetary amount.”136 Even with this injunction in place, however, an
individual who is on probation solely due to outstanding financial obligations may still
not vote for fear of criminal prosecution under the Strict Liability Voting Law (which is
136
Order on Plaintiffs’ Motion for a Preliminary Injunction, supra note 6, at 10.
50
vague and the ultimate source of confusion).
V. The Strict Liability Voting Law Impedes Plaintiffs’ Efforts to Carry Out
Their Missions.
The specter of prosecution under the Strict Liability Voting Law has substantially
impeded Plaintiffs’ efforts to carry out this mission. Plaintiffs have had difficulty
persuading eligible North Carolina residents with criminal convictions to register to vote
and vote, because of their fear of prosecution under the Strict Liability Voting Law.
vote and vote, because those individuals could potentially face criminal prosecution
under the Strict Liability Voting Law if they are still serving some aspect of a felony
sentence. Plaintiffs also fear incurring criminal liability themselves under N.C. GEN.
STAT. § 163-275(13), which provides that it is a Class I felony “[f]or any person falsely
to make or present any certificate or other paper to qualify any person fraudulently as a
voter, or to attempt thereby to secure to any person the privilege of voting . . . .” The
intent requirement under this law is unclear. Depending on how the NCSBE and District
Attorneys construe this law, Plaintiffs could potentially face prosecution under N.C. GEN.
STAT. § 163-275(13) for attempting “to secure to any person the privilege of voting” if
94. The risk of criminal prosecution of prospective voters under the Strict
51
Liability Voting Law, together with the potential for criminal liability for Plaintiffs
themselves under N.C. GEN. STAT. § 163-275(13), has rendered it practically impossible
for Plaintiffs to continue their efforts to engage in voter registration and get-out-the-vote
communities such as those that have been previously involved with the criminal justice
system. Moreover, Plaintiffs are not able to assist many individuals with felony
95. The fear of prosecution under the Strict Liability Voting Law could
potentially deter thousands of eligible North Carolina residents with criminal convictions
from voting in the November 3, 2020 presidential election, just weeks away.
2020. The State also permits same day registration during the early voting period, which
runs October 15, 2020 through October 31, 2020.137 To ensure that all eligible individuals
have the opportunity to register in time to vote in the presidential election, this Court
should preliminarily enjoin the Strict Liability Voting Law well before the registration
137
See Voter Registration Deadline, NCSBE, https://www.ncsbe.gov/registering/how-
register/voter-registration-deadlines (last visited Sept. 20, 2020); One-Stop Early Voting,
NCBSE https://www.ncsbe.gov/voting/vote-early-person (last visited Sept. 20, 2020).
52
window closes.
97. Absent expedited relief, countless individuals will forever lose the
opportunity to exercise their right to vote in the 2020 elections. This harm cannot be
CLAIMS
COUNT ONE
99. The Due Process Clause of the Fourteenth Amendment prohibits the
deprivation of “life, liberty or property, without due process of law.” U.S. CONST. amend.
consonant alike with ordinary notions of fair play and the settled rules of law, and a
statute that flouts it violates the first essential of due process.” Johnson v. U.S., 576 U.S.
591, 595–96 (2015). When a criminal law imposes strict liability, even greater clarity is
necessary to satisfy the demands of due process. See Colautti v. Franklin, 439 U.S. 379,
395 (1979) (“This Court has long recognized that the constitutionality of a vague
of mens rea.”).
100. The Strict Liability Voting Law is unconstitutionally vague on its face
because it fails to provide individuals of ordinary intelligence fair notice of what conduct
53
is prohibited, and then subjects them to strict felony-level liability. The statute
criminalizes voting by “any person convicted of a crime, which excludes the person from
the right of suffrage, to vote at any primary or election without having been restored to
the right of citizenship in due course and by the method provided by law.” N.C. GEN.
STAT. § 163-275(5). The Strict Liability Voting Law neither defines which crimes
“exclude[ ] the person from the right of suffrage,” nor explains how an individual may be
101. To learn which crimes “exclude[ ] the person from the right of suffrage,” a
prospective voter must turn to the North Carolina Constitution and the State law setting
forth voter qualifications. See N.C. CONST., art. VI, § 2(3); N.C. GEN. STAT. § 163-55.
Only then would a prospective voter learn that misdemeanors and other low level crimes
citizenship,” a prospective voter must look outside the State’s election laws to the
Citizenship Restoration Law. That statute provides, inter alia, that “[a]ny person
convicted of a crime, whereby the rights of citizenship are forfeited, shall have such
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.” N.C. GEN. STAT. § 13-1(1)
(emphasis added). But neither the Citizenship Restoration Law nor any other North
convicted of a felony does not regain the right to vote until sentence completion,
“including any probation, post-release supervision or parole.”138 But the NCSBE has not
defined the term “unconditional discharge” in the State’s Voter Registration Application
104. Because of the vagueness of the Strict Liability Voting Law, some
sentence completion, while many other eligible voters have refrained from voting
because of a fear of prosecution under the Strict Liability Voting Law. This law plainly
does not pass constitutional muster under the Due Process Clause.
105. In enforcing the Strict Liability Voting Law, Defendants have acted under
106. Defendants have deprived and will continue to deprive Plaintiffs and
prospective voters in North Carolina of their right under the Due Process Clause to non-
138
North Carolina Voter Registration Application, supra note 90.
55
COUNT TWO
108. The Equal Protection Clause of the Fourteenth Amendment prohibits any
State from “deny[ing] to any person within its jurisdiction the equal protection of the
laws.” U.S. CONST. amend. XIV, § 1. A law originally enacted with racially
discriminatory intent violates the Equal Protection Clause if (a) the law was never
substantively amended, and (b) the law continues to have racially disproportionate
effects. See, e.g., Hunter v. Underwood, 471 U.S. 222, 233 (1985) (“[W]e simply observe
that its original enactment was motivated by a desire to discriminate against [B]lacks on
account of race and the section continues to this day to have that effect. As such, it
109. The Strict Liability Voting Law was originally enacted with discriminatory
intent in 1877, and was reenacted almost verbatim in 1899 in an effort to suppress the
Black vote and reinstate white control throughout the state. The purpose of the Strict
Liability Voting Law was to deter Black individuals with criminal convictions from ever
attempting to vote.
110. The North Carolina General Assembly has never amended the key features
of the Strict Liability Voting Law. In substance, the Strict Liability Voting Law has
Carolinians, who constitute the overwhelming majority of individuals who were flagged
by the NCSBE for voting in the 2016 election prior to sentence completion. Black
prosecutions under the Strict Liability Voting Law, despite unequivocal evidence that
these individuals voted based on a good-faith belief that they were eligible to do so.
112. The Strict Liability Voting Law also disproportionately affects eligible
Black voters with past criminal convictions in North Carolina. These individuals
disproportionately refrain from voting for fear of prosecution under the Strict Liability
Voting Law.
113. The Strict Liability Voting Law violates the Equal Protection Clause of the
intent; its key features have never been substantively amended; and it continues to
114. In enforcing the Strict Liability Voting Law, Defendants have acted under
115. Defendants have deprived and will continue to deprive Plaintiffs and Black
voters in North Carolina of their right under the Equal Protection Clause to non-
57
PRAYER FOR RELIEF
A. Declare that the Strict Liability Voting Law violates the Due Process and
States Constitution;
bringing this suit pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920; and
E. Grant such other relief as this Court deems just and proper.
58
Dated: September 24, 2020
59
COMMUNITY SUCCESS INITIATIVE, ET AL. vs TIMOTHY K. MOORE, ET AL.
30(b)(6) Karen Brinson Bell on 07/16/2020 ·
·3
·6· · · · · · Plaintiffs,
·7· ·vs.
12
13
15· · · · · · · · · · · · · · of
17
18
22
23
Page 3 Page 5
·1 ·1
· · · · · · · · · · · ·INDEX OF EXHIBITS
·2 ·2· · · · · · · · · · · · (Continued)
·3 ·3
· · ·NUMBER· · · · · · · · DESCRIPTION· · · · · · · · PAGE
·4 ·4
· · ·Plaintiffs' I· Election Offices Manual· · · · · · 101
·5· · · · · · 30(b)(6) Deposition by RingCentral of ·5· · · · · · · · · Bates: CSI_NCSBE_132 thru 278
·6· ·Plaintiffs' J· NC Voting Rights Guide· · · · · · ·114
·6· ·KAREN BRINSON BELL, a witness located in Raleigh, · · · · · · · · · · People in the Criminal Justice
·7· ·North Carolina, was called remotely on behalf of the ·7· · · · · · · · · System
· · · · · · · · · · Bates: CSI_NCSBE_598
·8· ·plaintiffs, before Denise Y. Meek, remote court ·8
· · ·Plaintiffs' K· A Misdemeanant & Ex-Felon's· · · · 106
·9· ·reporter and notary public, in and for the State of ·9· · · · · · · · · Guide to Voting in North Carolina
10· ·North Carolina, on Thursday, July 16, 2020, · · · · · · · · · · Bates: CSI_NCSBE_303 thru 304
10
11· ·commencing at 9:01 a.m. · · ·Plaintiffs' M· State of Michigan Voter· · · · · · 140
11· · · · · · · · · Registration Application and
12 · · · · · · · · · · Michigan Driver's License/State
12· · · · · · · · · Identification Card Address
13 · · · · · · · · · · Change Form Instructions
14 13
· · ·Plaintiffs' N· Voter Registration Application· · ·142
15 14· · · · · · · · · District of Columbia Board of
· · · · · · · · · · Elections
16 15
17 · · ·Plaintiffs' O· New Jersey Voter Registration· · · 144
16· · · · · · · · · Application
18 17· ·Plaintiffs' P· State Board's Amended Response· · ·159
· · · · · · · · · · to Interrogatory No. 7 of the
19 18· · · · · · · · · Plaintiffs' First Set of
· · · · · · · · · · Interrogatories
20
19
21 · · ·Plaintiffs' Q· Letter 3/3/2017 Re: Uniform· · · · 119
20· · · · · · · · · Notice to Felons Regarding Voting
22 · · · · · · · · · · Rights in North Carolina
21
23 22
24 · · ·REPORTERS NOTE:· Exhibit L was not identified.
23
25 24
25
Page 7 Page 9
·1· · · ·THE REPORTER:· All right.· Ms. Bell, ·1· · · · · · · · · · · ·-· - -
·2· ·please raise your right hand. ·2· · · · · · · · ·KAREN BRINSON BELL,
·3· · · ·Do you solemnly swear the testimony you ·3· · · · having been first duly remotely sworn,
·4· ·will give in this matter will be the truth, ·4· · · · was examined and testified as follows:
·5· ·the whole truth, and nothing but the truth, ·5· · · · · · · · · · EXAMINATION
·6· ·so help you God? ·6· ·BY MR. JACOBSON:
·7· · · ·THE WITNESS:· I do. ·7· · · ·Q.· Okay.· Good morning, again, Ms. Bell.
·8· · · ·THE REPORTER:· Thank you, ma'am. ·8· ·As I mentioned, I'm Daniel Jacobson.· I am an
·9· · · ·MR. JACOBSON:· Good morning, Ms. Bell. ·9· ·attorney for the plaintiffs in this case.
10· · · ·MR. COX:· Dan, this is Paul.· Before we 10· · · · · ·Could I ask you to state your full name
11· ·get started, I just wanted to make one note 11· ·for the record.
12· ·on the record. 12· · · ·A.· Karen Brinson Bell.
13· · · ·Yesterday the Court entered into a 13· · · ·Q.· And do you understand that you've taken
14· ·protective order, as all counsel knows, and 14· ·an oath to tell the truth today?
15· ·I just want to make sure that that's 15· · · ·A.· Yes, I do.
16· ·entered into the record.· I'll be emailing 16· · · ·Q.· There will be a transcript of
17· ·a copy to the court reporter to enter it 17· ·everything we say.· So we should just try the
18· ·into the record. 18· ·best we can not to talk over each other.· I'll
19· · · ·But just for everyone's sake of 19· ·try to do my best if you could do your best as
20· ·understanding right now, it states that: 20· ·well.
21· · · ·"Plaintiffs' examination of Defendant 21· · · ·A.· Yes.· I'm aware of that.· Thank you.
22· ·State Board's Rule 30(b)(6) designee 22· · · ·Q.· And your counsel may object, but you
23· ·relating to matter 1 of Schedule A of the 23· ·must answer the question even if he objects,
24· ·notice of deposition shall be limited to 24· ·unless your counsel specifically instructs you
25· ·factual assertions pertaining to items 1.a. 25· ·not to answer the question.
Page 11 Page 13
·1· · · ·A.· It was dealing with the federal ID law. ·1· ·very difficult question to answer, but on a
·2· · · ·Q.· And was that a federal court case or a ·2· ·high level, what are your responsibilities in
·3· ·state court case? ·3· ·that role?
·4· · · ·A.· I honestly don't recall at this point. ·4· · · ·A.· I am the chief elections official for
·5· · · ·Q.· Okay.· And you were already in your ·5· ·the State of North Carolina.· I, with the State
·6· ·position that you currently hold now at the ·6· ·Board of Elections, have oversight of
·7· ·time of that deposition; is that right? ·7· ·elections, administration for our state, and
·8· · · ·A.· I had just begun.· Yes. ·8· ·the conduct of all 100 county boards of
·9· · · ·Q.· Okay.· And then the second case, what ·9· ·elections.· And we also, as the State Board,
10· ·was that case? 10· ·and the 100 county boards, oversee compliance
11· · · ·A.· That was earlier this week, and it is 11· ·with campaign finance laws.
12· ·dealing with changes to the -- it's a case 12· · · ·Q.· In your role, do you oversee the State
13· ·dealing with coronavirus and -- a lawsuit 13· ·Board's efforts to notify people convicted of
14· ·asking for changes in how we conduct elections 14· ·felonies about their voting rights?
15· ·dealing with coronavirus. 15· · · ·A.· We do receive voter registrations.· So
16· · · ·Q.· And what kind of changes are the 16· ·that does pertain to felons.
17· ·plaintiffs asking for in that case? 17· · · ·Q.· And do you oversee the State Board's
18· · · ·A.· It's actually quite a -- numerous 18· ·procedures for preventing people convicted of
19· ·things.· Changes to the witnesses on -- changes 19· ·felonies from voting?
20· ·to the voter registration deadline.· How we -- 20· · · · · ·MR. COX:· Objection.· Assumes facts not
21· ·I'm just trying to think of some of the other 21· · · ·in evidence.
22· ·things that were being considered.· Those are 22· ·BY MR. JACOBSON:
23· ·two of the main ones. 23· · · ·Q.· Ms. Bell, you understand that people
24· · · ·Q.· Okay. 24· ·who are serving a felony sentence in
25· · · ·A.· The poll workers and precinct workers. 25· ·North Carolina are not allowed to vote.· Is
Page 15 Page 17
·1· ·reeligible to vote again.· Is that right? ·1· · · ·A.· I had worked for a voting -- an
·2· · · ·A.· That is how our law is stated, yes. ·2· ·elections software company.
·3· · · ·Q.· And does the Board have procedures to ·3· · · ·Q.· Have you ever worked -- other than your
·4· ·help implement that aspect of the law, that ·4· ·current job, have you ever worked for any
·5· ·people are allowed to vote again once their ·5· ·government agency?
·6· ·felony sentences are completed? ·6· · · ·A.· Yes.· From two thousand -- well, yes.
·7· · · ·A.· Yes.· That's correct. ·7· ·That's a "yes" or "no."· So yes.
·8· · · ·Q.· And in your capacity as executive ·8· · · ·Q.· And what agency was that?
·9· ·director, do you oversee those procedures? ·9· · · ·A.· I was the elections director for
10· · · ·A.· Yes. 10· ·Transylvania County, North Carolina.
11· · · ·Q.· Ms. Bell, am I correct that the Board 11· · · ·Q.· And when did you serve in that role?
12· ·conducts investigations of people who may have 12· · · ·A.· From March of 2011 until March of 2015.
13· ·voted illegally while they were serving their 13· · · ·Q.· And did I hear you right that you said
14· ·felony sentence? 14· ·you were the elections director?· Or I might
15· · · ·A.· We do have an investigations division 15· ·have misheard.
16· ·where we look at violations of election law. 16· · · ·A.· That's correct.· Yes.· At the county
17· · · ·Q.· And do you -- in your capacity as 17· ·level in North Carolina, we're considered
18· ·executive director, do you oversee that 18· ·election directors.
19· ·division? 19· · · ·Q.· And what were your responsibilities in
20· · · ·A.· Yes, that is a division of this agency. 20· ·that role?
21· · · ·Q.· Okay.· Before your current job, what 21· · · ·A.· To administer voting, voter
22· ·was -- what job did you hold before your 22· ·registration, campaign finance, election
23· ·current job? 23· ·administration for Transylvania County,
24· · · ·A.· I was a consultant for the Ranked 24· ·North Carolina.
25· ·Choice Voting Resource Center. 25· · · ·Q.· And in that role, were you involved in
Page 19 Page 21
·1· ·legally voted while serving a felony sentence? ·1· · · ·Q.· Okay.· What did you do to prepare for
·2· · · ·A.· The county level turns over that ·2· ·today's deposition?
·3· ·information to the state, and there is no ·3· · · ·A.· I have spoken with counsel to
·4· ·county investigations division.· So that's ·4· ·understand the process, particularly, to the
·5· ·turned over to the state. ·5· ·organizational witness aspect.· I have reviewed
·6· · · ·Q.· Other than that role in Transylvania ·6· ·documents that we provided as the State Board,
·7· ·County, have you served in any sort of ·7· ·that were provided by counsel.
·8· ·government capacity, other than your current ·8· · · ·Q.· Did you meet with your lawyers to
·9· ·job? ·9· ·prepare for this deposition?
10· · · ·A.· Yes. 10· · · ·A.· I did.
11· · · ·Q.· And what was that? 11· · · ·Q.· How many times did you meet them?
12· · · ·A.· I worked for the State Board of 12· · · ·A.· Other than being briefed, you know, on
13· ·Elections from 2006 until I became county 13· ·the status of the case to actually prepare for
14· ·elections director in 2011. 14· ·this, we met once.
15· · · ·Q.· And what was your -- what role did you 15· · · ·Q.· And other than Mr. Cox, was anyone else
16· ·hold at that time? 16· ·present at that meeting?
17· · · ·A.· I was a district elections technician. 17· · · ·A.· The State Board's general counsel,
18· · · ·Q.· And what did that job entail? 18· ·Katelyn Love.
19· · · ·A.· I was assigned a regional position 19· · · ·Q.· Other than Ms. Love and Mr. Cox, was
20· ·where I worked in the western part of the state 20· ·anyone present?
21· ·supporting 12 counties.· The primary 21· · · ·A.· Yes.· Our deputy director, Trena Parker
22· ·responsibilities dealt with the voting systems 22· ·Velez.
23· ·and North Carolina's procurement of a new 23· · · ·Q.· Okay.· Was Mr. Rabinovitz from the
24· ·voting system in 2006, and that rollout, and 24· ·Attorney General's Office present at that
25· ·the training associated with that. 25· ·meeting?
Page 23 Page 25
·1· · · ·Q.· Fair enough.· And that would probably ·1· · · ·A.· So CSI_NCSBE_000048.· So it's an email
·2· ·take us a full day just to go through those. ·2· ·from Katelyn Love, as well as Veronica
·3· · · ·A.· At least. ·3· ·Degraffenreid.
·4· · · ·Q.· Did you bring any documents, though, ·4· · · ·Q.· And do State Board -- does the State
·5· ·with you today specifically for this ·5· ·Board staff or members frequently email about
·6· ·deposition? ·6· ·issues relating to felony disenfranchisement?
·7· · · ·A.· I have some of those documents that ·7· · · ·A.· What do you mean by "frequently"?
·8· ·have been provided.· I have those with me. ·8· · · ·Q.· Do they ever email about issues
·9· · · ·Q.· Okay.· But nothing else beyond what ·9· ·relating to felony disenfranchisement?
10· ·you've already described? 10· · · ·A.· Yes, we would email -- you know, yes,
11· · · ·A.· That's correct. 11· ·we would email about that.
12· · · ·Q.· Okay.· And, Ms. Bell, I believe, again, 12· · · ·Q.· Okay.· And do you know that the State
13· ·you already answered this, but you're aware 13· ·Board searched their emails in response to
14· ·that the State Board produced documents in 14· ·discovery requests in this case?
15· ·response to the plaintiffs' discovery request 15· · · ·A.· I don't know.
16· ·in this case? 16· · · ·Q.· Okay.· And you think the person who
17· · · ·A.· Yes. 17· ·would know that is the deputy director and the
18· · · ·Q.· Were you involved in the process of 18· ·general counsel.· Am I understanding that
19· ·identifying or collecting the documents that 19· ·right?
20· ·were to be produced? 20· · · ·A.· In this case it would be the general
21· · · ·A.· No, not -- not particularly. 21· ·counsel.
22· · · ·Q.· Who at the State Board was involved in 22· · · ·Q.· Okay.
23· ·gathering the documents that were produced as 23· · · ·A.· The deputy director does not have the
24· ·part of discovery in this case? 24· ·discovery rights.
25· · · ·A.· To my knowledge, most of that was 25· · · ·Q.· Okay.· And have you reviewed all of the
Page 27 Page 29
·1· · · · · ·(Plaintiffs' A premarked.) ·1· ·felony in a North Carolina state court and
·2· ·BY MR. JACOBSON: ·2· ·their eligibility to vote?
·3· · · ·Q.· Are you able to see my screen? ·3· · · · · ·MR. COX:· Objection.· Vague.
·4· · · ·A.· Yes.· Well, I see a screen.· I don't ·4· · · ·A.· I don't know that the terminology used
·5· ·see the entire document. ·5· ·is correct for what this displays.
·6· · · ·Q.· Do you see that this is a document ·6· · · ·Q.· Okay.· How would you describe it?
·7· ·entitled Election Technology Training? ·7· · · ·A.· Okay.· This is a listing of lists and
·8· · · ·A.· Yes. ·8· ·daily reports.· It's not necessarily a
·9· · · ·Q.· Have you seen this document before? ·9· ·database.
10· · · ·A.· I have. 10· · · ·Q.· Okay.· But these are the lists and
11· · · ·Q.· Can you confirm, to the best of your 11· ·daily reports that the State Board possesses
12· ·ability, that this is a true and accurate copy 12· ·regarding persons convicted of a felony in a
13· ·of a document produced by the State Board in 13· ·North Carolina state court; is that right?
14· ·discovery? 14· · · ·A.· Somewhat.
15· · · ·A.· I'm sorry.· Your audio faded. 15· · · ·Q.· Okay.· What did I get wrong?
16· · · ·Q.· I'm sorry.· You said you've seen this 16· · · ·A.· You indicated that we possess them.
17· ·document before, correct? 17· ·They may be provided to us or -- I just don't
18· · · ·A.· Yes, I have. 18· ·want to -- it indicates it's the Department of
19· · · ·Q.· Can you confirm, to the best of your 19· ·Corrections, which is a title that really means
20· ·ability, that this is a true and accurate copy 20· ·DPS, Department of Public Safety.· And so some
21· ·of a document produced by the State Board in 21· ·of these are provided to us and not necessarily
22· ·this case in discovery? 22· ·our documents.
23· · · ·A.· Yes, it is a State Board document.· At 23· · · ·Q.· Sure.· The State Board maintains copies
24· ·least, as far as the cover. 24· ·of -- at least, copies of all of these lists;
25· · · ·Q.· And does this -- does this document 25· ·is that correct?
Page 31 Page 33
·1· · · ·Q.· And does that list show the current ·1· · · ·Q.· Okay.· And is that -- am I
·2· ·list of people who are ineligible to vote ·2· ·understanding right, is that the SEIMS
·3· ·because they are serving a felony sentence? ·3· ·database?· I might be --
·4· · · ·A.· By definition, no, that's not what the ·4· · · ·A.· No.· You said it correctly.
·5· ·report indicates. ·5· · · ·Q.· Okay.· That's a list of voters who are
·6· · · ·Q.· Okay.· Well, can you explain to me why ·6· ·registered in North Carolina; is that right?
·7· ·that's not correct? ·7· · · ·A.· That's our database of people who are
·8· · · ·A.· I will read what it says.· It says ·8· ·registered in North Carolina, SEIMS.
·9· ·that:· "This report shows the current list of ·9· · · ·Q.· Okay.· And the third list is called
10· ·persons who have an active felony status due to 10· ·"Felon Completed List."· Does that show the
11· ·conviction of a felony in a North Carolina 11· ·current list of persons who have completed
12· ·state court.· The report is available by the 12· ·their felony sentence from a conviction in a
13· ·county in which the person was convicted of a 13· ·North Carolina state court?
14· ·felony (or was a resident at the time of his or 14· · · ·A.· It states that they are no longer
15· ·her conviction).· User must select county and 15· ·considered active felons.· So by that -- does
16· ·user may select conviction month and year." 16· ·that meet your definition of no longer serving
17· · · · · ·It does not state whether they are 17· ·a sentence?
18· ·eligible to vote or not, as you stated. 18· · · ·Q.· So let me ask you this:· Anyone who is
19· · · ·Q.· Okay.· Is it your understanding that 19· ·no longer considered to be an active felon and
20· ·anyone serving an active felony status due to a 20· ·is, therefore, on that list, are all of those
21· ·felony is ineligible to vote in North Carolina? 21· ·people eligible to vote in North Carolina
22· · · ·A.· That is correct. 22· ·elections?
23· · · ·Q.· So given that, doesn't this list show a 23· · · ·A.· They are eligible, yes.
24· ·current list of persons who are ineligible to 24· · · ·Q.· Okay.· And then the fourth list here,
25· ·vote in North Carolina due to a conviction in a 25· ·"Felon Completed State Matching List," does
Page 35 Page 37
·1· · · ·Objection. ·1· · · ·Q.· And is it the State Board of Elections
·2· · · ·A.· I was going to say.· I mean, what do ·2· ·that develops that standard template letter?
·3· ·you mean by "shortly after"? ·3· · · ·A.· Yes.
·4· · · ·Q.· Sure.· Roughly how long after a ·4· · · ·Q.· Okay.· And I think we touched on this a
·5· ·conviction takes place is this letter sent? ·5· ·moment ago, but do counties rely on what was
·6· · · ·A.· Can you zoom in?· Or, actually, I'd ·6· ·the second database that we talked about on the
·7· ·like to look at my procedures to give you the ·7· ·previous slide, which was called the Felon
·8· ·exact number of days. ·8· ·State Matching List, to identify persons whose
·9· · · ·Q.· That would be fine. ·9· ·names should be removed from the list of
10· · · ·A.· I don't believe this page that you have 10· ·registered voters and sent this letter?
11· ·displayed indicates the number of days as we 11· · · ·A.· That is data available to the counties
12· ·process voter registration reforms -- or not 12· ·and that is a method that they use.
13· ·reforms -- forms.· I'm sorry. 13· · · ·Q.· Is there any other method that they use
14· · · ·Q.· Well, let me -- 14· ·to identify people who were registered to vote
15· · · ·A.· So it's untimely.· It's not... 15· ·who should be removed because of felony
16· · · ·Q.· Am I correct, Ms. Bell, that this 16· ·conviction other than that database -- or that
17· ·letter is sent to people who are already 17· ·list, I should say?
18· ·registered to vote who have been matched up to 18· · · ·A.· I believe what you were showing on that
19· ·a voter registration record in SEIMS?· Is that 19· ·previous slide were all the lists available to
20· ·correct? 20· ·the counties for them to use in processing.
21· · · ·A.· That is correct.· Yes.· Sorry.· I did 21· ·But that -- yes, that is the primary way that a
22· ·not state that quite right. 22· ·county would process for this -- for this
23· · · ·Q.· Sure.· So, just ballpark, is it fair to 23· ·notice.
24· ·say that this letter will be sent to voters 24· · · ·Q.· Sure.· You say it's the primary way,
25· ·within six months of their conviction? 25· ·and I guess what I'm just trying to clarify is,
Page 39 Page 41
·1· · · ·A.· There are two other items on this ·1· ·that may send to voters after their felony
·2· ·particular slide that indicate other resources ·2· ·convictions, advising them that they cannot
·3· ·that the counties have.· The one that you ·3· ·vote; is that right?
·4· ·noted, the Felon State Matching List, is the ·4· · · ·A.· Yes.
·5· ·primary, but they do still have access to the ·5· · · ·Q.· Okay.· Ms. Bell, I didn't see any
·6· ·Felon County List that we've reviewed.· And the ·6· ·similar letter in this document advising voters
·7· ·one that you did not review is the DOC Felon ·7· ·after their sentence is completed that they're
·8· ·Search.· If they needed to clarify or review, ·8· ·once again eligible to vote.
·9· ·those would be available to them as well. ·9· · · · · ·Is it correct that neither the State
10· · · ·Q.· And is it your understanding that 10· ·Board of Elections nor a county board of
11· ·counties, in fact, do rely on those two other 11· ·elections send voters such a notification once
12· ·lists when identifying -- to identify people 12· ·they've become reeligible to vote?
13· ·who should be removed from the registration 13· · · · · ·MR. COX:· Objection.· Confusing.
14· ·rolls? 14· · · ·A.· Would you state your question again,
15· · · ·A.· They are available to them, but they 15· ·please?
16· ·would rely primarily on the Felon State 16· · · ·Q.· Sure.· So after a person finishes their
17· ·Matching List that you've asked about. 17· ·felony sentence, does either the State Board of
18· · · ·Q.· Okay.· I'll turn now to page 283. 18· ·Elections or a county board of elections send
19· · · · · ·And, Ms. Bell, do you see that this 19· ·voters a notification telling them that they're
20· ·is -- this slide is titled "Denial Notice"? 20· ·now once again eligible to vote?
21· · · ·A.· I do. 21· · · ·A.· We do not send a letter --
22· · · ·Q.· And does this slide -- does this letter 22· · · ·Q.· Okay.· And --
23· ·on this slide represent a letter sent to people 23· · · ·A.· -- of that nature.· Sorry.
24· ·who were not already registered to vote, or 24· · · ·Q.· And we talked earlier here about the
25· ·tried to register to vote, notifying them that 25· ·third and fourth bullet points -- or lists --
Page 43 Page 45
·1· · · ·A.· I believe that is correct.· Yes. ·1· ·that would prevent the county boards of
·2· · · ·Q.· And you could -- the State Board could ·2· ·elections from contacting people on these lists
·3· ·use that contact information to contact people ·3· ·and telling them that they're once again
·4· ·and tell them that they're now eligible to ·4· ·eligible to vote?
·5· ·vote, right? ·5· · · ·A.· The way that I best know to answer that
·6· · · · · ·MR. COX:· Objection.· Calls for ·6· ·is to say that we administer the law as it is
·7· · · ·speculation. ·7· ·written.· We -- it is not -- so if there's
·8· · · ·A.· We could use -- I don't -- that is not ·8· ·not -- if that's not within the law, then --
·9· ·a procedure that we have.· I mean, is that a ·9· ·you know, we have to be careful in our
10· ·contact list?· Could anyone send a letter? 10· ·administration that we do not exceed what the
11· ·Yes, anyone could send a letter. 11· ·law states either.
12· · · ·Q.· Right.· And the county boards could use 12· · · ·Q.· Okay.· But you're not aware of any law
13· ·that contact information to send a letter to 13· ·that prohibits it, are you?
14· ·people telling them that they're once again 14· · · ·A.· To the best of my knowledge, no.
15· ·eligible to vote; is that right? 15· · · ·Q.· Okay.· So from the standpoint of a
16· · · ·A.· Your question is "could," and that 16· ·person convicted of a felony in North Carolina,
17· ·would imply:· Do they have the ability or the 17· ·even after their sentence is finished, the last
18· ·capability?· "Could" is -- an answer to "could" 18· ·communication they will have received from
19· ·is "yes." 19· ·election officials is something telling them
20· · · ·Q.· Okay.· But they don't do that, do they? 20· ·that they're not eligible to vote; is that
21· · · ·A.· That is not what is -- that is not our 21· ·right?
22· ·procedure or law. 22· · · · · ·MR. COX:· Objection.· Calls for
23· · · ·Q.· Okay. 23· · · ·speculation.· Vague.
24· · · ·A.· So they do not keep that. 24· · · ·A.· And I actually was going to ask you to
25· · · ·Q.· When you say that it's not their law, 25· ·restate your question, please.
Page 47 Page 49
·1· · · ·answered. ·1· · · ·Q.· I'm sorry.· Can you explain to me what
·2· · · ·A.· They do not receive a letter from the ·2· ·you mean by that?
·3· ·State Board of Elections or county board of ·3· · · ·A.· Your assertion is that by receiving the
·4· ·elections. ·4· ·letter, it confuses someone about their state
·5· · · ·Q.· Okay.· So for such a person, the last ·5· ·of registration.· But the fact that they
·6· ·communication they will receive from either the ·6· ·receive a letter stating that they're not
·7· ·State Board of Elections or the county board of ·7· ·registered might actually be not confusing but
·8· ·elections will have been that letter telling ·8· ·rather provide clarity to them of their status
·9· ·them they're not eligible to vote, right? ·9· ·of registration.
10· · · · · ·MR. COX:· Objection.· Calls for 10· · · ·Q.· Ms. Bell, you mentioned before that --
11· · · ·speculation. 11· ·I think I heard you say the Department of
12· · · ·A.· Actually, I could say that we work with 12· ·Public Safety is tasked with handing people
13· ·the probation and parole and DPS and provide 13· ·some information after they finish their
14· ·them with brochures that are provided to 14· ·sentence about their voting rights.· Is that
15· ·someone who has completed their sentence. 15· ·correct?
16· ·Therefore, that is a communication from the 16· · · ·A.· That's correct.
17· ·State Board of Elections or county board of 17· · · ·Q.· Does the State Board have any
18· ·elections.· It's just not in the form of a 18· ·procedures for ensuring that the Department of
19· ·letter. 19· ·Public Safety actually distributes that
20· · · ·Q.· But the State Board of Elections and 20· ·information?
21· ·the county board of elections, they don't send 21· · · · · ·MR. COX:· Objection.· Vague.
22· ·that themselves, right, to people who have 22· · · ·A.· Sorry.· What do you mean by
23· ·finished their sentences? 23· ·"procedures"?
24· · · ·A.· No, it is provided to DPS and the court 24· · · ·Q.· Does the State Board do anything to
25· ·system to provide to those individuals. 25· ·ensure that the DPS, the Department of Public
Page 51 Page 53
·1· · · ·A.· I don't know that I have an answer for ·1· ·State Board of Elections as part of discovery
·2· ·you. ·2· ·in this case?
·3· · · ·Q.· Okay.· Do you know the volume -- beyond ·3· · · ·A.· You cut out a little bit.· I'm sorry.
·4· ·just materials relating to voting rights, do ·4· · · ·Q.· Can you confirm, to the best of your
·5· ·you know how many materials DPS distributes to ·5· ·ability, that this is a true and accurate copy
·6· ·an individual after they complete their felony ·6· ·of a document produced by the State Board in
·7· ·sentence? ·7· ·this case?
·8· · · ·A.· I do not know. ·8· · · ·A.· Yes, I believe it is.
·9· · · ·Q.· So you don't know if they might hand ·9· · · ·Q.· Okay.· I'm going to turn now to what's
10· ·out a hundred different documents? 10· ·been marked as Bates stamped page 333.
11· · · ·A.· I don't work in that agency, and I'm 11· · · · · ·Ms. Bell, do you see this top paragraph
12· ·not a probation or parole officer, so I would 12· ·here?· And you can take a moment to read it.
13· ·not know. 13· ·But do you see it says that the State Board
14· · · ·Q.· Okay.· Ms. Bell, to this point, 14· ·receives quarterly reports from the federal
15· ·everything we've been discussing has been about 15· ·US Attorney's Office about people who have been
16· ·convictions in the North Carolina state court. 16· ·convicted of a felony crime in the federal
17· ·I would like to now discuss individuals 17· ·court?
18· ·convicted of felony crimes. 18· · · ·A.· Yes, I do see that.
19· · · · · ·And for that I'll pull up what's been 19· · · ·Q.· And then do you see in the second
20· ·marked as Plaintiffs' Exhibit 2 -- or 20· ·paragraph here -- and, again, you can take a
21· ·Exhibit -- 21· ·moment to read it -- it says that county boards
22· · · · · ·THE WITNESS:· Would this be a good time 22· ·of elections should cancel the registrations on
23· · · ·for a break? 23· ·anyone listed on those lists received from the
24· · · · · ·MR. JACOBSON:· Sure. 24· ·federal US Attorney's Offices?
25· · · · · ·THE WITNESS:· You're shifting gears. I 25· · · · · ·MR. COX:· Objection.· Misstates the
Page 55 Page 57
·1· ·looked at before that is sent to people with ·1· · · ·Q.· Okay.· So if a person, who has finished
·2· ·felony convictions in federal court? ·2· ·their federal felony sentence -- right? --
·3· · · ·A.· I do believe so, yes. ·3· ·let's say it's finished, tries to register to
·4· · · ·Q.· We discussed earlier how the Board ·4· ·vote, won't their registration be denied
·5· ·receives information from the North Carolina ·5· ·because the current information that the Board
·6· ·Department of Public Safety about when a person ·6· ·has is just from that list we talked about,
·7· ·convicted of a state crime has completed his or ·7· ·that they've committed a crime, a federal
·8· ·her sentence.· Do you recall that? ·8· ·crime?
·9· · · ·A.· Yes. ·9· · · ·A.· Is your question if a former federal
10· · · ·Q.· I couldn't find anything in this 10· ·felon comes into the North Carolina Board of
11· ·document or any of the other documents produced 11· ·Elections, and submits a voter registration
12· ·by the Board saying that the Board receives 12· ·form, would we deny, because in our system it
13· ·information from federal officials about when 13· ·shows them as having been convicted of a
14· ·an individual has completed his or her federal 14· ·felony?
15· ·sentence. 15· · · ·Q.· Correct.
16· · · · · ·Does the Board receive information from 16· · · ·A.· No, we would not deny them because of
17· ·the federal government about when people 17· ·that.
18· ·convicted of federal crimes have completed 18· · · ·Q.· My understanding from before is that
19· ·their sentences? 19· ·you rely on these lists to deny people voter
20· · · ·A.· One moment.· Let me double-check 20· ·registrations, right, the list provided by the
21· ·something.· (Reviewing.) 21· ·US Attorney's Office?
22· · · · · ·I felt like I knew the answer, but I 22· · · ·A.· We receive these lists of felony
23· ·wanted to double-check.· So I do not show 23· ·convictions.· And if you read further, it does
24· ·correspondence from a federal authority on 24· ·say that we use this to cancel the person's
25· ·that. 25· ·registration if they have been convicted of a
Page 59 Page 61
·1· ·to vote before in North Carolina.· Okay? ·1· · · ·Q.· Won't his name still come up as a match
·2· ·That's the -- are you with me on my hypo so ·2· ·to this quarterly report that you receive from
·3· ·far? ·3· ·the US Attorney's Office after his conviction?
·4· · · ·A.· Yes. ·4· · · ·A.· Did he attest to having completed his
·5· · · ·Q.· He's then convicted of a federal crime. ·5· ·felony sentence, that he is no -- that he is
·6· ·Okay? ·6· ·not a felon?
·7· · · ·A.· Okay. ·7· · · ·Q.· He attested it to the same way he did
·8· · · ·Q.· And then you receive his name on one of ·8· ·in the prior hypothetical, where he was not
·9· ·these quarterly reports from the US Attorney's ·9· ·telling the truth, but this time he is.
10· ·Office.· Okay? 10· · · ·A.· I believe if you'll scroll down on your
11· · · ·A.· After he's registered to vote. 11· ·document, you'll find the answer to your
12· · · ·Q.· No, he hasn't tried to register to 12· ·question.
13· ·vote. 13· · · ·Q.· What page am I looking for on the
14· · · ·A.· Okay. 14· ·document?
15· · · ·Q.· After you receive his name from the 15· · · ·A.· Let's stop right here.· And if you look
16· ·US Attorney's Office -- from one of these 16· ·at the very first question, it says:
17· ·quarterly reports -- he tries to register to 17· · · · · ·"If a county does not update the
18· ·vote.· He's still serving his federal sentence, 18· · · ·removal reason to Felony Sentence Completed
19· ·though.· Will he be allowed -- 19· · · ·for a previously removed voter, will the
20· · · ·A.· Did he -- 20· · · ·SEIMS prevent the new voter's registration
21· · · ·Q.· Go ahead. 21· · · ·from being processed?"
22· · · ·A.· Did he attest on his voter registration 22· · · · · ·"No.· SEIMS will not prevent the
23· ·form that he is not a felon? 23· · · ·processing of a registration of a
24· · · ·Q.· Sure.· Will he be allowed to register 24· · · ·previously removed voter whose citizenship
25· ·to vote? 25· · · ·rights have been restored even if the
Page 63 Page 65
·1· ·possess any analogous list for people who have ·1· ·sentences; is that correct?
·2· ·finished their federal sentences, right? ·2· · · · · ·MR. COX:· Objection.· Calls for
·3· · · ·A.· We do not get a list of -- a federal ·3· · · ·speculation.
·4· ·list of who has completed their sentence.· It's ·4· · · ·A.· Actually, I don't know that I'm
·5· ·based on the information I've just reviewed. ·5· ·knowledgeable of how federal felons or former
·6· · · ·Q.· Okay. ·6· ·federal felons are processed upon their
·7· · · ·A.· And what we discussed. ·7· ·completion.
·8· · · ·Q.· And in the context of a state court ·8· · · ·Q.· Is it your understanding that the
·9· ·conviction, you don't rely solely on an ·9· ·North Carolina Department of Public Safety
10· ·individual's attesting that they've finished 10· ·supervises people who have been convicted of
11· ·their sentence, right?· You rely on these Felon 11· ·federal crimes but not state crimes?
12· ·Completed Lists; is that right? 12· · · ·A.· I actually -- I actually do not know
13· · · · · ·MR. COX:· Objection.· Vague. 13· ·the answer to that.· I don't know how a federal
14· · · ·A.· I'm going to review a procedure for 14· ·felon is processed.
15· ·just a moment, and then I'm going to ask you to 15· · · ·Q.· Okay.· I'm going to represent to you
16· ·restate your question. 16· ·for the purposes of my next question that
17· · · ·Q.· Sure. 17· ·people convicted of felony crimes are
18· · · ·A.· (Reviewing.) 18· ·supervised by federal probation officers.
19· · · ·Q.· Actually, Ms. Bell, in the interest of 19· · · · · ·Will you accept that representation
20· ·time, I'm happy to move on, unless there's 20· ·just for purposes of my next question?· If I'm
21· ·something more you want to say on this subject. 21· ·wrong, that's my fault, but will you accept it
22· · · ·A.· I would like you to state your question 22· ·for purposes of my next question?
23· ·again, because I think it's the same answer. 23· · · ·A.· I will accept that.
24· ·But I would like to hear your question again. 24· · · ·Q.· Okay.· Do you know if federal probation
25· · · ·Q.· Sure.· In the context of individuals 25· ·officers hand any information to individuals
Page 67 Page 69
·1· ·is it your understanding that they're ·1· ·their South Carolina conviction while they live
·2· ·ineligible to vote in North Carolina elections? ·2· ·in North Carolina.· Okay?
·3· · · ·A.· That would be correct. ·3· · · ·A.· Correct.· Okay.
·4· · · ·Q.· Okay.· Does the State Board receive ·4· · · ·Q.· And let's say they're a North Carolina
·5· ·information about such individuals from any ·5· ·registered voter.· Okay?
·6· ·source? ·6· · · ·A.· Uh-huh.
·7· · · ·A.· Because we do not have a national ·7· · · ·Q.· Does the county board of elections send
·8· ·network, we would be reliant upon other states ·8· ·that person any notification that they're not
·9· ·to notify us. ·9· ·eligible to vote?
10· · · ·Q.· And to the best of your knowledge, do 10· · · ·A.· If we received a notice, which I can't
11· ·any other states notify you of that? 11· ·say whether we would or would not -- if we
12· · · ·A.· I do not know one way or the other. 12· ·received a notice from a court or from, you
13· · · ·Q.· Okay.· To the best of your knowledge, 13· ·know, South Carolina's system, then that would
14· ·does the State Board of Elections or the county 14· ·be -- we could send notice.· But the -- the
15· ·boards of elections notify such individuals 15· ·source of information that our county boards of
16· ·that they are ineligible to vote in 16· ·elections receive, and that we receive at the
17· ·North Carolina elections? 17· ·State Board of Elections, is from the
18· · · ·A.· I do not know. 18· ·North Carolina court system.
19· · · ·Q.· Okay.· To the best of your knowledge -- 19· · · ·Q.· Okay.· So to the best of your
20· · · ·A.· Actually, let me ask you to state that 20· ·knowledge, you're not aware that county boards
21· ·question again.· Because I believe you asked if 21· ·of elections would send such a person a notice?
22· ·the State Board of Elections or county board of 22· · · · · ·MR. COX:· Objection.· Asked and
23· ·elections would give notice of a felony to 23· · · ·answered.
24· ·someone else in another state.· That would not 24· · · · · ·THE WITNESS:· I'm sorry.· What was
25· ·be our role.· Reporting a felon is, obviously, 25· · · ·that, Paul?
Page 71 Page 73
·1· ·BY MR. JACOBSON: ·1· ·Ms. Bell?
·2· · · ·Q.· Okay.· Ms. Bell, I'm going to turn now ·2· · · ·A.· I can.
·3· ·to what's been marked as Exhibit C. ·3· · · ·Q.· And this -- we're looking now at the
·4· · · ·A.· Okay. ·4· ·section that's titled "FELONS," in all
·5· · · ·Q.· I'm going to share my screen if I can ·5· ·capitals.· And the second sentence reads:
·6· ·figure out how. ·6· ·"NCSBE" -- and I should clarify.· That was the
·7· · · · · ·Okay.· Ms. Bell, do you see that this ·7· ·prior name for the State Board of Elections; is
·8· ·is a document titled Post-Selection Audit ·8· ·that right?
·9· ·Report. ·9· · · ·A.· Actually, that -- that would -- we'll
10· · · ·A.· I do. 10· ·have several iterations.· We also have
11· · · ·Q.· Have you seen this document before? 11· ·abbreviated it in numerous ways.· This is,
12· · · ·A.· I have. 12· ·actually, an abbreviation that we currently
13· · · ·Q.· And can you confirm, to the best of 13· ·use, that stands for North Carolina State Board
14· ·your knowledge, that this is a true and 14· ·of Elections.· Yes, that actually is the
15· ·accurate copy of a document produced by the 15· ·current --
16· ·State Board in discovery in this case? 16· · · ·Q.· Got it.· I will admit I lose track of
17· · · ·A.· It does appear to be. 17· ·all the names that your agency has had over the
18· · · ·Q.· Okay.· And, then, Ms. Bell, is this an 18· ·last few years.
19· ·audit report written by the State Board of 19· · · ·A.· And there's different perspectives on
20· ·Elections after the 2016 general election? 20· ·which ones should be used.· So we'll...
21· · · ·A.· It is.· That is the title. 21· · · ·Q.· I understand.· I'll try to avoid that
22· · · ·Q.· And it's dated April 21, 2017; is that 22· ·land mine.
23· ·correct? 23· · · · · ·So the second sentence here reads:
24· · · ·A.· That's correct. 24· ·"NCSBE initiates investigations into possible
25· · · ·Q.· Ms. Bell, my understanding from this 25· ·cases of felons voting through a system of data
Page 75 Page 77
·1· ·purposes of that list we discussed earlier? ·1· ·that through the data matching process we just
·2· · · · · ·MR. COX:· Objection.· Vague. ·2· ·discussed, the State Board initially identified
·3· · · ·A.· Yeah.· State your question again. ·3· ·541 people who may have illegally voted due to
·4· · · ·Q.· Sure.· That was a terrible question, I ·4· ·a felony conviction, with the 541 being the 441
·5· ·will admit. ·5· ·people listed in that first sentence plus the
·6· · · ·A.· I'm not judging. ·6· ·hundred people who further investigation ruled
·7· · · ·Q.· I'll judge myself here. ·7· ·out?
·8· · · · · ·Previously we discussed how, on a ·8· · · ·A.· Okay.· I do really need you to state
·9· ·continual basis, the State Board of Elections ·9· ·that question again --
10· ·is using some sort of matching system to match 10· · · ·Q.· Sure.
11· ·the list of people who are serving an active 11· · · ·A.· -- because I got hung up on the
12· ·felony sentence to the list of names in your 12· ·numbers, so...
13· ·SEIMS database, right? 13· · · ·Q.· Sure.· Does this first bullet indicate
14· · · ·A.· Yes. 14· ·that through the data matching process we just
15· · · ·Q.· And there's some sort of matching 15· ·discussed, the State Board initially identified
16· ·criteria that are used, right? 16· ·541 people who may have illegally voted due to
17· · · ·A.· That's correct. 17· ·a felony conviction?
18· · · ·Q.· And here it describes a "system of data 18· · · ·A.· It does indicate that they were able to
19· ·audits" that was used for purposes of this 19· ·rule out more than 100 voters initially
20· ·audit, right? 20· ·flagged.· So 100 to the 441 open cases is 541.
21· · · ·A.· Yes. 21· ·So it does state "more than," so there could
22· · · ·Q.· And so what I'm asking is:· Was that 22· ·potentially be more than a hundred that were
23· ·system of data audits using a similar matching 23· ·ruled out.
24· ·process of matching the SEIMS database -- I'm 24· · · ·Q.· Okay.· Sure.· But let's -- I'll just
25· ·sorry -- matching the list of felons serving 25· ·assume -- I'll just use the number 100 for
Page 79 Page 81
·1· ·investigation into the circumstances of each ·1· · · ·Q.· So sitting here today, you don't have
·2· ·person before it initiates the cancellation ·2· ·any information to suggest that the false
·3· ·process, right? ·3· ·positive rate or the current ongoing
·4· · · ·A.· There's a -- there's a criteria -- a ·4· ·identification of people whose registration
·5· ·matching criteria, and that's the audits ·5· ·should be matched -- or should be canceled --
·6· ·performed or the process that's performed. ·6· ·is lower than it was in these audits?
·7· · · ·Q.· Right.· So if the matching criteria ·7· · · · · ·MR. COX:· Objection.· Asked and
·8· ·pops up and it's a hit, then that person will ·8· · · ·answered.
·9· ·be sent a letter telling them that their ·9· · · ·A.· We have not conducted further audits.
10· ·registration can be canceled right? 10· ·So I do not have an analysis to support one way
11· · · ·A.· In the nutshell, yes.· I mean, there's 11· ·or the other.
12· ·some steps in between there, but yes. 12· · · ·Q.· And assuming -- just assuming for the
13· · · ·Q.· Okay.· And the State Board doesn't have 13· ·purposes of this question -- that the false
14· ·investigators do a person-by-person 14· ·positive rates for your continual process of
15· ·investigation into each person who matches up 15· ·matching people to the registration records is
16· ·on the list to, you know, confirm that, in 16· ·the same as the false positive rating from the
17· ·fact, they are -- they were convicted of a 17· ·matching process that happened after the 2016
18· ·felony and should be removed from the rolls, 18· ·election, that would mean that roughly
19· ·right? 19· ·20 percent of the people whose registrations
20· · · ·A.· There is not an investigation done on 20· ·are canceled are false positives; is that
21· ·each of those individuals.· That is correct. 21· ·right?
22· ·We do not have that large of an investigations 22· · · ·A.· You're asking me to speculate that
23· ·division, for starters. 23· ·current matching would be -- the false
24· · · ·Q.· And we just talked about that, in the 24· ·positives would be equal to what was found in
25· ·context of this audit, further investigation by 25· ·this particular audit.
Page 83 Page 85
·1· ·to be a true and accurate copy of a document ·1· ·change -- that there has been a change in what
·2· ·produced by the State Board in discovery in ·2· ·I would say is terminology, though, I do
·3· ·this case? ·3· ·know -- I do know parole would still be a
·4· · · ·A.· It does appear to be so, yes. ·4· ·common term.
·5· · · ·Q.· And, Ms. Bell, is this the voter ·5· · · ·Q.· Okay.· Are you familiar with the term
·6· ·registration form that the State Board ·6· ·post-release supervision?
·7· ·currently makes available for people to ·7· · · ·A.· I have been -- I actually did not know
·8· ·register to vote? ·8· ·of that term until I became executive director.
·9· · · ·A.· It is. ·9· · · ·Q.· But you're familiar with that term
10· · · ·Q.· And now turn to the second page, which 10· ·today?
11· ·is Bates stamped page 352.· And I'm going to 11· · · ·A.· Yes.
12· ·direct your attention, Ms. Bell, to instruction 12· · · ·Q.· Okay.· And what is that term?· What do
13· ·1 in subpart 5 here. 13· ·you understand that term to mean?
14· · · · · ·Do you see where it says:· "If 14· · · ·A.· The way that I came to understand it is
15· ·previously convicted of a felony, you must have 15· ·that it is a -- it is the term used in lieu of
16· ·fully completed your sentence, including 16· ·the term "parole" now.· As far as I know, they
17· ·probation and/or parole"? 17· ·are the same processes or the same entity with
18· · · ·A.· Yes, that is what it states. 18· ·a different term.
19· · · ·Q.· Ms. Bell, are you familiar with the 19· · · ·Q.· Ms. Bell, is it your understanding that
20· ·Structured Sentencing Act of 1994? 20· ·North Carolina's felony disenfranchisement laws
21· · · · · ·MR. COX:· Objection.· Vague. 21· ·apply to people who are on post-release
22· · · ·A.· Actually, I don't know -- I don't know 22· ·supervision, meaning that they're not allowed
23· ·it by that -- I don't know that one way or the 23· ·to vote until their post-release supervision is
24· ·other.· I don't know, by that time. 24· ·completed?
25· · · ·Q.· Are you aware that in 1994, the 25· · · ·A.· That is my understanding.
Page 87 Page 89
·1· ·including probation and/or parole," but does ·1· ·sentence, and they're not certain, we aren't
·2· ·not mention post-release supervision.· Could ·2· ·probation officers, we aren't officers of the
·3· ·such a person think that they're eligible to ·3· ·court; therefore, we say that it's best for
·4· ·vote because post-release supervision is not ·4· ·them to speak with that officer if they need
·5· ·mentioned here? ·5· ·clarification.
·6· · · · · ·MR. COX:· Objection.· Outside the scope ·6· · · ·Q.· So just to make sure I understand that
·7· · · ·of the deposition notice. ·7· ·answer.· You're saying that the State Board of
·8· · · · · ·Objection.· Calls for speculation. ·8· ·Elections does not provide clarification to
·9· · · · · ·If you have knowledge and the ability ·9· ·individuals about their eligibility to vote?
10· · · ·to answer it, you can answer it. 10· · · ·A.· We give them clarification as defined
11· · · ·A.· I don't think I have -- you've asked me 11· ·here as best as to our knowledge, but if they
12· ·to put myself in someone else's shoes.· I don't 12· ·still don't -- if they don't know the
13· ·know whether that makes it clear or unclear for 13· ·distinction between parole or post-licensing,
14· ·them. 14· ·as you mentioned, or if they don't know what
15· · · ·Q.· Okay.· I'll give you this as a 15· ·probation is, then the best thing I can do as
16· ·hypothetical.· Let's say somebody on 16· ·an election official is to say, "That's outside
17· ·post-release supervision reads this form and 17· ·of the scope of elections, and you should speak
18· ·says -- comes up to you -- you just happen to 18· ·with your officer as to whether you have
19· ·be standing there -- and they say, "I think I 19· ·completed your sentence or not."
20· ·might be eligible to vote because this doesn't 20· · · ·Q.· Sure.· So I'm just going to ask one
21· ·mention post-release supervision."· Could you 21· ·more time, though.· My question was simply that
22· ·understand why that person would think that? 22· ·hypothetical person, and they say to you, "I
23· · · ·A.· The best answer I can give you is that 23· ·think I might be eligible to vote, because this
24· ·I don't know if I can put myself in someone 24· ·doesn't mention post-release supervision,"
25· ·else's shoes.· And by the fact that as -- and 25· ·could you, at least, understand why they would
Page 91 Page 93
·1· ·the prior page, which is page 351. ·1· · · ·of the notice of deposition.
·2· · · · · ·Ms. Bell, do you see in Section 10 ·2· · · · · ·Objection.· Calls for speculation.
·3· ·here, which is the section that -- and I don't ·3· · · · · ·If you are able to answer based upon
·4· ·know what the right word is -- the affirmation ·4· · · ·your personal knowledge, you can.
·5· ·that a voter must sign, number 4 says:· "I have ·5· · · ·A.· I can't -- I can't determine what
·6· ·not been convicted of a felony, or if I have ·6· ·someone would be able to understand or not
·7· ·been convicted of a felony" -- (inaudible). ·7· ·understand.
·8· · · · · ·THE REPORTER:· We're not hearing you. ·8· · · ·Q.· Ms. Bell, as the executive director of
·9· ·BY MR. JACOBSON: ·9· ·the State Board of Elections, you have
10· · · ·Q.· Do you not hear me? 10· ·authority over the contents of these forms,
11· · · ·A.· No.· I was about to say, "Did you say 11· ·right?
12· ·something more?" 12· · · ·A.· Yes.
13· · · ·Q.· I could see everyone making gestures. 13· · · ·Q.· Do you think it would be advisable for
14· · · ·A.· I was reading the note, looked up, and 14· ·the State Board of Elections to clarify on here
15· ·I was, like, I think you're talking, but I 15· ·that it applies to people on post-release
16· ·don't hear your voice. 16· ·supervision?
17· · · ·Q.· Yeah.· I was, like, did I just say 17· · · · · ·MR. COX:· Objection.· Vague.
18· ·something super offensive?· Everyone is 18· · · ·A.· Do I think it would be advisable for
19· ·starting to gesture. 19· ·the form to be altered?· Is that what you're
20· · · · · ·Can you hear me? 20· ·asking?
21· · · ·A.· Yes.· All I heard was "number 4," so... 21· · · ·Q.· Correct.
22· · · ·Q.· Okay.· So, Ms. Bell, do you see on 22· · · ·A.· I don't -- if it's advisable, who is
23· ·number 4 here it says -- so let me ask you 23· ·providing the advice?
24· ·this:· You said a moment ago that in your mind 24· · · ·Q.· Well, you're in charge of the State
25· ·parole might be synonymous with post-release 25· ·Board of Elections, right?
Page 95 Page 97
·1· ·knowledge, that this is a true and accurate ·1· · · ·A.· I do see that.
·2· ·copy of a document that the State Board ·2· · · ·Q.· Again, that does not mention
·3· ·produced this discovery? ·3· ·post-release supervision, correct?
·4· · · · · ·MR. COX:· Objection.· Assumes facts not ·4· · · ·A.· That's correct.
·5· · · ·in evidence. ·5· · · ·Q.· And to the best -- as you sit here
·6· · · ·A.· I can't see an indication -- there we ·6· ·today, the Board currently does not intend to
·7· ·go.· I do see a notation at the bottom that ·7· ·change this language on this form, does it?
·8· ·does appear to have been provided. ·8· · · ·A.· Actually, I don't recall whether that's
·9· · · ·Q.· And, Ms. Bell, is this the State Board ·9· ·been changed.
10· ·of Elections form for voters to apply for an 10· · · ·Q.· You're not aware of any intent to
11· ·absentee ballot? 11· ·change this form currently to include
12· · · ·A.· This is a prior iteration of the form. 12· ·post-release supervision, are you?
13· · · ·Q.· When was the form updated since then? 13· · · · · ·MR. COX:· Objection.· Asked and
14· · · ·A.· We are currently updating due to a 14· · · ·answered.
15· ·change in the law and the number of witnesses 15· · · ·A.· I would have to look at the new proof
16· ·because of coronavirus. 16· ·to determine whether the language has been
17· · · ·Q.· Okay.· And is that the only change that 17· ·changed or not.· I don't know off the top of my
18· ·you expect to make to this form currently? 18· ·head.
19· · · ·A.· We have actually redesigned it to make 19· · · ·Q.· Okay.· I'm going to skip ahead now and
20· ·it -- it's one of the forms I was meaning when 20· ·pull up what's been marked as Exhibit H.
21· ·I said we were trying to develop a more 21· · · · · ·(Plaintiffs' H premarked.)
22· ·user-friendly format. 22· · · · · ·MR. COX:· And, Dan, one thing that
23· · · ·Q.· Okay.· Understood. 23· · · ·could be helpful to me is if you list the
24· · · · · ·Ms. Bell, is it fair to say that you 24· · · ·Bates stamp number as we're going through
25· ·would expect, at least, hundreds of thousands 25· · · ·this.
Page 211
·1· · · · · · · · · REPORTER'S CERTIFICATE
·2
·3· ·NORTH CAROLINA· )
·4· ·WAKE COUNTY· · ·)
·5
·6· · · · · · I, Denise Y. Meek, a Court Reporter and
· · ·Notary Public in and for the State of North Carolina,
·7· ·do hereby certify that prior to the commencement of
· · ·the examination, KAREN BRINSON BELL, was duly
·8· ·remotely sworn by me to testify to the truth, the
· · ·whole truth, and nothing but the truth.
·9
· · · · · · · I DO FURTHER CERTIFY that the foregoing is a
10· ·verbatim transcript of the testimony as taken
· · ·stenographically by me at the time, place, and on the
11· ·date hereinbefore set forth, to the best of my
· · ·ability.
12
· · · · · · · I DO FURTHER CERTIFY that I am neither a
13· ·relative nor employee nor attorney nor counsel of any
· · ·of the parties to this action, and that I am neither
14· ·a relative nor employee of such attorney or counsel
· · ·hereto, and that I am not financially interested in
15· ·the action.
16· · · · · · IN WITNESS WHEREOF, I have hereto set my
· · ·hand this 31st day of July 2020.
17
18
· · · · · · · · · · · · · · · ____________________________
19· · · · · · · · · · · · · · DENISE Y. MEEK
· · · · · · · · · · · · · · · Court Reporter/Notary Public
20· · · · · · · · · · · · · · State of North Carolina
21
· · · · · · · · · · · · · · · COMMISSION:· 201519500202
22· · · · · · · · · · · · · · EXPIRATION:· July 8, 2025
23
24
25
State and federal elected officials, journalists and everyday citizens have
requested information regarding cases of fraud or investigations
following the 2016 elections. [Appendix 3: Congressional Letter]
1
SUMMARY Nearly 4.8 million N.C. voters participated in the 2016 general election,
the largest number in state history. It is important to recognize that
suspected cases of ineligible voters casting ballots and/or committing
fraud represent a tiny fraction of that number.
FELONS Under G.S. § 163-275(5), it is a Class I felony “for any person convicted
of a crime which excludes the person from the right of suffrage, to vote
. . . without having been restored to the right of citizenship.”
Currently, 441 files of suspected felon voters remain open after an initial
screening and contacts or attempted contacts with the voters.
3
Working with public safety officials and the court system to
ensure that convicted felons are expressly notified that they lose
their voting rights upon conviction, and regain them only after
completing their sentence, including probation and parole. Certain
suspects claimed they were never informed of the restriction. An
initial review of associated plea agreements and contact with
probation personnel indicate there is room to improve education
around voting rights. [Appendix 7: Letter to DPS/AOC on Felons]
Increasing data-sharing between local election officials to
ensure a felon removed in one county does not re-register in
another county, unless his or her sentence is complete. Though
the past system followed the requirements of G.S. § 163-82.14(c), a
gap in the legacy voting data system may have allowed some active
felons to register or to re-register without being detected.
Additional felons who did not vote in the general election were
recently removed from the voter rolls, closing that gap. These
removals followed the notice sent to felons by mail and waiting
period required under state law. Fixing the gap and educating
affected voters will reduce the opportunity for unintentional
violations. It also will improve the likelihood of successful
prosecutions against willful offenders.
Updating elections software to check felon status at the time of
registration. The improved system is being coded and will roll out
statewide this summer, substantially improving the maintenance
efforts through current technologies and new data-sharing
relationships.
Adding checkboxes to voter forms to ensure participants are
aware of voter qualifications, including the restriction on current
felons. [Appendix 8: New Voter Forms]
Educating the public about voting requirements through NCSBE
website, outreach events, news releases, social media and other
means.
NON-CITIZENS The N.C. Constitution allows only U.S.-born and naturalized citizens to
register and vote. It is unlawful for a non-citizen to register or vote in a
state or federal election.
All cases involve documented non-citizens who were admitted into the
country lawfully. All individuals subject to this audit were matched to
the Department of Homeland Security’s database using information
obtained from the N.C. Division of Motor Vehicles (DMV).
4
NCSBE research shows the 41 non-citizen voters originally came from
28 different countries. [Appendix 10: Breakdown of Non-U.S. Citizen
Voters by Country of Origin]
Information obtained from those who are not citizens illustrates the
complexity of this work. A number of non-citizens said they were not
aware that they were prohibited from voting. Interviews and evidence
show that some non-citizens were misinformed about the law by
individuals conducting voter registration drives or, in at least one
documented case, by a local precinct official. One registrant in her 70s
has lived in the United States for more than 50 years and believed that
she was a citizen because she had been married to a U.S. citizen.
DOUBLE VOTERS So-called double voters violate state and federal law by voting more
& than one time in a single election. A suspect may do so by voting
multiple times within the same jurisdiction or in different jurisdictions.
IMPERSONATION NCSBE is currently investigating 24 substantiated cases of double-
voting from the 2016 general election.
5
North Carolina maintains a strong system that checks for this behavior
throughout voting, whether through the mail, at early voting locations,
or in the precinct on Election Day. However, variations in voter
information or human error can allow a double voter to go undetected
until more nuanced investigation is performed. Some violators appear
to be “testers” trying to find holes in the system. Others claim their
property ownership in multiple jurisdictions should allow them to vote
in each, and others brush past the law to support their candidate by any
means necessary. Additionally, a case that initially appears to be a
double voter — an individual who votes twice — may actually be a case
of voter impersonation — an individual who casts a ballot using the
identity of another person.
6
two witness signatures or a notarial certificate on absentee return
envelopes.1
Also, since 2014, NCSBE has used data from the Interstate Crosscheck
Program as a tool to help identify voters who vote in more than one state
in the same election. Administered by the Kansas Secretary of State’s
office, the program identifies possible duplicate registrations among
states and provides evidence of possible double voting. NCSBE recently
received the program’s data for 2016 and will examine it in the coming
months.
NEXT STEPS NCSBE continues to investigate voting irregularities from the 2016
general election and will refer cases to prosecutors where appropriate.
Findings from post-election audits and subsequent investigations allow
NCSBE to pinpoint which policies are best suited to improving electoral
integrity in the state. For example, because this agency knows that many
irregularities occurred because of a lack of information and education,
we know to direct our efforts to better educating registrants and those
who help citizens register to vote. This agency stands ready to help
policymakers, advocacy organizations, media representatives, and the
general public understand the topic of voting irregularities and provide
information that will help them draw accurate and appropriate
conclusions.
This agency strongly cautions readers not to refer to each of these cases
as “voter fraud.” As stated earlier, “ineligible voters casting ballots”
may be the result of unintentional or intentional conduct. Fraud, in most
cases, is an intent crime that requires prosecutors to show that the voter
knowingly committed a crime.
1
A federal court enjoined additional identification and registration requirements under S.L. 2013-381 on
July 29, 2016.
7
Post-Election Audit Report
APPENDIX 1
Audit Descriptions
Overview
The following audits are designed to ensure election integrity by maintaining accurate voter rolls and
proper oversight of election processes. Audits take various forms and are crafted to identify data
anomalies that could indicate potential issues or problems, while supporting the N.C. State Board of
Elections’ goal of uniformity and compliance across 100 counties.
The audits have detected instances in which ineligible voters are suspected of casting ballots in the 2016
general election. NCSBE has developed a thorough process to investigate these cases and, when
warranted, refer them to prosecutors across the state to consider criminal charges. NCSBE understands
that some of these cases will be prosecuted and others will not, based on the unique circumstances of
each case.
It is important to note that data used to identify suspected ineligible voters, like all data, is not perfect
and matches require further analysis and investigation. This agency has taken great care to ensure that
no one is publicly accused of any crime or referred to prosecutors without evidence that a crime was
committed and that referral for prosecution is warranted.
Felon Audit
Under state law, it is a Class I felony “for any person convicted of a crime which excludes the person
from the right of suffrage, to vote . . . without having been restored to the right of citizenship.”
After an election, the N.C. State Board of Elections checks the state’s voter registration database against
a list of current felons from the N.C. Department of Public Safety. This analysis cross-checks dates of
birth and driver’s license numbers between the two databases. When a match occurs, NCSBE reviews
voting history to determine whether the individual may have cast a vote while serving a felony sentence.
If an active felon appears to have voted, NCSBE investigators then refer to an additional criminal records
database, the Criminal Justice Law Enforcement Automated Data Services (CJLEADS), for further
verification. The resulting matches from this second check may then be followed up with interviews,
mailings and other traditional investigative methods.
If a current felon appears to be improperly registered, county boards of elections may proceed to remove
the registration following notice and hearing, if requested, as required by state law.
The N.C. Constitution allows only U.S.-born and naturalized citizens to register and vote, and it is
unlawful for a non-citizen to vote in a state or federal election. To identify non-U.S. citizens who may
have cast ballots, NCSBE first checks voter records against N.C. Division of Motor Vehicles (DMV)
data, which indicates whether a customer’s driver’s license contains a restriction code related to their
non-citizen status. Other DMV tables are then cross referenced to determine if evidence of citizenship
was provided in a subsequent visit to the DMV.
Appendix Page 1
Post-Election Audit Report
The resulting matches are run through the U.S. Department of Homeland Security’s Systematic Alien
Verification for Entitlements Program (SAVE) database, an information service for agencies to verify
an individual’s immigration status.
NCSBE has determined based on past experience that a match with the SAVE database is not a reliable
indicator that a person is not a U.S. citizen because the database is not always updated in a timely manner
and individuals who derived citizenship from their parents through naturalization or adoption may show
up as non-citizens in SAVE.
Also, due to timing issues and the fact that DMV data is generally updated only when licenses are issued,
DMV data alone is not reliable for this purpose either. In fact, voters who appear to be non-citizens
based on DMV data were confirmed to be U.S. citizens in the SAVE database 97.6 percent of the
time.
If SAVE indicates a voter is a non-citizen, NCSBE opens a case file and attempts to contact the voter to
determine citizenship status through mailings and interviews. Because of the unreliability of citizenship
data, voters who appear to be non-citizens — where both data sources indicate non-citizenship status —
are not removed from the rolls, absent independent confirmation that they are not citizens. In fact,
approximately three-quarters of those who subsequently provide proof of U.S. citizenship continued to
appear as non-citizens in the SAVE database.
County election officials occasionally must enter election results by hand directly into the vote tabulation
software. This may occur, for example, due to a media card failure. This audit can catch inadvertent
mistakes in transcribing numbers, as well as purposeful manipulation of data. After the 2016 election,
the NCSBE identified all manual entries that occurred in November across the state. Data analysts then
reached out to the counties to identify the reasons for the manual entries. NCSBE determined all
manually entries were done for valid purposes. In the future, manual entry audits will include an
automated process able to detect transcription errors in real time as results are entered by hand. This
change, still under development, will help ensure the accuracy of manual entries made in future elections.
When voters check in at polling places, they fill out authorization to vote (ATV) forms or one-stop
applications during early voting. This results in a voter history record for each individual. When ballots
are run through tabulators, tabulation software provides election return data that identifies the number of
ballots cast. This audit compares the number of ATV forms and one-stop applications with the number
of physical ballots cast. Those two numbers should generally match, but may be slightly off for valid
reasons, such as if a voter checks in and then decides not to vote.
This audit is designed to identify certain problems or fraud, such as ballot stuffing, fraudulent manual
entries, tampering with media cards or certain ballot coding issues.
Voters cast provisional ballots when questions arise about their qualifications or eligibility to vote in
certain contests. Those ballots are held aside pending research by county boards of elections as to whether
they should be counted.
Appendix Page 2
Post-Election Audit Report
This audit is aimed at ensuring all 100 counties make uniform decisions that comply with election laws
when counting provisional ballots. It compares provisional voter data to several data sources, including
the DMV database, an incomplete queue that catalogs registration attempts that were deemed incomplete
and the current registration database as of Election Day. Data analysts execute matching algorithms to
determine whether provisional voters were eligible vote in the counties where they presented to vote.
Additionally, two web services are used to geocode the voters’ addresses to confirm that they resided in
the county at the time they voted. Audit results are sent to county boards of elections, which analyze
them and, where appropriate, amend their canvasses to reflect any changes.
For the 2016 general election, this audit resulted in 428 voters statewide whose provisional ballots were
counted in accordance with current election law. Those ballots wouldn’t have been counted otherwise.
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Post-Election Audit Report
APPENDIX 2
G.S. § 163-22(d)
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Post-Election Audit Report
APPENDIX 3
Congressional Letter
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Post-Election Audit Report
Appendix Page 6
Post-Election Audit Report
APPENDIX 4.1
Admission Letter (Case 1)
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Post-Election Audit Report
Appendix Page 8
Post-Election Audit Report
Appendix Page 9
Post-Election Audit Report
APPENDIX 4.2
Admission Letter (Case 2)
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Post-Election Audit Report
Appendix Page 11
Post-Election Audit Report
Appendix Page 12
Post-Election Audit Report
APPENDIX 5
Breakdown of Voting Irregularities by Type, Party Affiliation of Voter
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Post-Election Audit Report
Appendix Page 14
Post-Election Audit Report
Appendix Page 15
Post-Election Audit Report
APPENDIX 6
Letter to Suspected Felon Voters
Appendix Page 16
Post-Election Audit Report
APPENDIX 7
Letter to DPS/AOC on Felons
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Post-Election Audit Report
Appendix Page 18
Post-Election Audit Report
APPENDIX 8
Revised Voter Forms
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Post-Election Audit Report
Appendix Page 20
Post-Election Audit Report
APPENDIX 9
Sample Letter to Possible Non-U.S. Citizen Voters
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Post-Election Audit Report
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Post-Election Audit Report
Appendix Page 23
Post-Election Audit Report
Appendix Page 24
Post-Election Audit Report
Appendix Page 25
Post-Election Audit Report
APPENDIX 10
Breakdown of Non-U.S. Citizen Voters by Country of Origin
Appendix Page 26