Legal Library

STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Case No: 99 CVS 13020

Randy B. Royal, Edwin Booth, Owen
Burney, Jr., Ed Carter, Gary Grant, Aileen
Ford, William Harper, Mary Jo Loftin,
Daniel Mallison, Gary Phillips, Fannie
Walden, Daniel Johnson Willis, the North
Carolina State Conference of NAACP
Branches, North Carolina Fair Share, the
Concerned Citizens of Tillery, the North
Carolina Alliance for Democracy, the North
Carolina Waste Awareness Reduction
Network, Citizens for Responsible
Government of Guilford County, and the
North Carolina Consumers Council,

Plaintiffs,

v.

The State of North Carolina and
The North Carolina Board of Elections,

Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

INTRODUCTION

To create democratic, representative government and to ensure the sovereignty of the people, the Constitution of the State of North Carolina charges defendants with the duty of conducting frequent, free, and fair elections, expressly forbidding any economic qualifications that "affect the right to vote or hold office." N.C. Const. Art. I, § 11; see also Art. I, §§ 2, 8, 10, 12, 13, 19, 32; Art II, § 6, 7; and Art VI, 6. Despite these express constitutional mandates, defendants conduct General Assembly elections in which a de facto "wealth primary" plays an integral, exclusionary role. In the wealth primary, those who have access to wealth pre-select candidates for office through their financial contributions, thereby excluding non-wealthy citizens from a central aspect of the electoral process and denying them a meaningful opportunity to participate in elections. Because a citizen cannot meaningfully compete for a seat in the North Carolina General Assembly without first amassing and spending substantial sums of money, having access to wealth has become a prerequisite and qualification for election to office. Flouting the constitutional premise that "political rights are not dependent upon or modified by property", Art. I, § 11, defendants violate the clear terms of the North Carolina Constitution by conducting elections in which persons of modest economic means are denied a meaningful opportunity to participate.

In their memorandum, Defendants distort the proper pre-trial procedure required by N.C.G.S. § 1A-1, Rules 12(b)(1) and 12(b)(6), and ignore the signal legal feature of this lawsuit, namely that it is brought under the Constitution of North Carolina, not the Constitution of the United States. As the courts of North Carolina are the sole arbiters of the meaning of the guarantees expressed in the North Carolina Constitution, all aspects of this case are and ought to be controlled by the laws of this state.

As set forth more fully below, plaintiffs have comprehensively alleged how the quantifiable, definable wealth primary process excludes them from meaningful participation in General Assembly elections on account of their economic status, personal associations, and beliefs. Because plaintiffs’ Amended Complaint exhaustively alleges facts sufficient to support six separate causes of action for violations of the North Carolina Constitution, under Art. I, §§ 2, 8, 10, 11, 12, 13, 19, 32; Art II, § 6, 7; and Art VI, 6, plaintiffs respectfully request that this Court deny defendants’ motion to dismiss in its entirety.

SUMMARY OF FACTS ALLEGED BY PLAINTIFFS

Plaintiffs -- who include non-wealthy individual voters, former, future and would-be candidates, as well as organizations whose memberships serve, and are largely comprised of, low-income citizens across North Carolina -- bring this case to secure their constitutional rights to participate in self-government, specifically in the process that governs General Assembly elections. Plaintiffs lack access to the sums of money necessary to mount viable campaigns for legislative office and thus cannot participate in the wealth primary, that critical stage of the electoral process in which persons who do have access to wealth pre-select candidates for office through their financial contributions. Plaintiffs’ Amended Complaint, filed Dec. 28, 1999, at ¶¶ 45-95 (hereinafter, "Am. Compl."). Because a candidate must raise and spend substantial sums of money in order to spread his or her electoral message and meaningfully compete for office, candidates who lack access to wealth, and the voters who support them, are systematically excluded from an integral aspect of elections. Am. Compl. at ¶¶ 45-80, 96-120.

For example, plaintiffs have alleged how former and future candidates Carter, Ford, Harper, Loftin, and Mallison -- persons of diverse party affiliations -- were unable to spread their electoral message for want of adequate funding. Am. Compl. at ¶¶ 96, 97, 100-102. Each of these candidates was eminently qualified to serve his or her respective community (Carter and Ford had already done so) and each enjoyed substantial volunteer grassroots support. Id. Each was unable to raise sufficient campaign funding from his or her natural constituency and each faced one or more opponents who did raise and spend substantial sums of money.[1] Id. Each found that no amount of grassroots support could compensate for the lack of adequate funding. Id. Prevented only by their economic status from mounting a viable campaign, none had any meaningful opportunity to compete for office. Id.; see also Am. Compl. at ¶¶ 60-65. Similarly, plaintiffs have alleged how prospective candidates Grant and Phillips, who are also qualified to represent their communities, would run for office but for the monetary barrier posed by the wealth primary. Am. Compl. at ¶¶ 99, 104. Candidate-plaintiffs have thus alleged that their right to stand for office has been substantially qualified by the necessity of raising and spending substantial sums of money.

Most importantly, plaintiffs have alleged how defendants’ elections debase and impair the fundamental right to vote of the non-wealthy voter-plaintiffs -- Royal, Booth, Burney, Walden, and Willis -- and the non-wealthy voters represented by the seven organizational plaintiffs. Am. Compl. at ¶¶ 98, 103, 105-114. None of these plaintiffs has the financial resources sufficient to support a viable candidate for office. Id. Royal, Booth, and Burney each actively supported one of the aforementioned candidate-plaintiffs, only to find that a lack of adequate campaign funds, for which no amount of hard grassroots effort could compensate, eventually meant certain defeat. Am. Compl. at ¶¶ 98, 103, 105. Because the wealth primary systematically prevents low-income candidates from mounting viable campaigns, voter-plaintiffs face perennial difficulty identifying candidates on the ballot who will represent their interests. Am. Compl. at ¶¶ 98, 103, 105-114. Thus, individual voter-plaintiffs, and the non-wealthy members of the seven organizational plaintiffs, suffer a substantial debasement of their vote. Id. The wealth primary consistently degrades all plaintiffs’ influence on the political process as a whole, undermines the meaning of their vote, and renders North Carolina’s non-wealthy citizens underrepresented in the legislature. Am. Compl. at ¶¶ 96-114.

To demonstrate that the wealth barrier to meaningful electoral competition is an integral part of the electoral process, plaintiffs have alleged facts confirming the "broad consensus among candidates for North Carolina office, their financial sponsors, and supporters that spending is indispensable to electoral success" -- a "conviction . . . unequivocally borne out by empirical data." Am. Compl. at ¶ 64 (emphasis added). The wealth primary is not some obscure concatenation of random events, but is instead a "distinct and definable process" that "can be outlined [by campaign consultants and successful candidates] in workshops or courses." Am. Compl. at ¶ 66. "Prospective candidacies are now primarily evaluated in terms of a candidate’s ability to raise money" and the "question of how much money a candidate can raise has become more important than questions regarding a candidate’s qualifications or policies." Am. Compl. at ¶¶ 65, 68. In sum, plaintiffs have exhaustively alleged that the exclusionary operation of the wealth primary is as real, effective, and quantifiable as a poll tax or candidate filing fee -- that money has become an "integral part of the electoral process" and a "prerequisite to any meaningful campaign." Am. Compl. at ¶¶ 69-70.

Defendants simply ignore the allegations of the complaint when they characterize plaintiffs’ injuries as a problem of "advantages or disadvantages that make it easier or harder to succeed in being elected." Def. Mem. at 24. On the contrary, plaintiffs have alleged that the wealth primary imposes a quantifiable financial barrier. Am. Compl. at ¶ 76. With careful detail, plaintiffs have alleged not only the exponential increase in the cost of conducting legislative campaigns (Am. Compl. at ¶¶ 46-57), but, more importantly, they have quantified the wealth barrier to meaningful electoral participation in precise, real dollar terms (Am Compl. at ¶ 46-52), alleging that "[c]andidates who cannot amass campaign funds at the levels in [the provided] tables are unable to mount viable, competitive campaigns and are thus unable to participate meaningfully in the electoral process . . . despite their qualifications for office." Am. Compl. at ¶ 50.

To substantiate these allegations and to specify the cost of mounting a meaningful, competitive campaign, plaintiffs have amassed comprehensive data on the four most recent General Assembly election cycles. Am. Compl. at ¶¶ 45-59. Plaintiffs have also offered scientific confirmation of the soundness of their allegations by conducting detailed regression analyses -- an established and accepted scientific method which provides a precise understanding of the causal relationships between variables in a complex system. Am. Compl. at ¶¶ 60-63. Plaintiffs’ regression analyses confirm that money is a primary determinant of electoral viability, regardless of a candidate’s party affiliation, race, gender, district, or previous office held. Id. By "[c]ontrolling for the major variables that may have some effect on electoral results, . . . regression analyses of recent elections to the North Carolina General Assembly reveal a strong, consistent, and statistically significant correlation between electoral spending and the results of elections." Am. Compl. at ¶ 61. "In all kinds of situations, the amount of money that a candidate spends is critical in determining what proportion of the vote that candidate will receive and whether he or she can win." Am. Compl. at ¶ 62. Thus, plaintiffs’ allegations support the conclusion that "[r]aising and spending a substantial sum of money has become a prerequisite to any meaningful campaign". Am. Compl. at ¶ 69.

Plaintiffs’ allegations raise fundamental doubts about the legitimacy of state government. See, generally, Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. Penn. L. Rev. 1277 (1993). A full "90 percent of donations to North Carolina PACs, parties or candidates are contributed by less than 1 percent of the citizens of North Carolina." Am Compl. at ¶ 92. Moreover, "the bulk of the funds needed to run for office come from political action committees and individuals who have a direct financial interest in decisions of the General Assembly." Am. Compl. at ¶ 90. Plaintiffs have alleged that North Carolina’s ‘pay-to-play’ elections create a pervasive perception of corruption in state politics which undermines the operation of representative government. Am. Compl. at ¶¶ 89-95. [2] Government simply cannot be representative when a discrete group of citizens is prevented from meaningful participation in an integral aspect of the electoral process. Roughly 13 percent of North Carolinians, almost 950,000 people, live at or below the poverty level. Am Compl. at ¶ 38-43. For these people, participation in the wealth primary, and thus meaningful participation in the political process as a whole, is clearly impossible.

 

SUMMARY OF ARGUMENT

The North Carolina Constitution provides broad protection for the right to vote and to hold office, forbidding any wealth qualification and mandating basic political equality in voting, candidate nomination, ballot access, and all other integral aspects of the electoral process. Because popular sovereignty is the fundamental premise of state government, the Constitution must be liberally construed to the end that elections in fact provide for the genuine expression of popular will.

When ruling on a motion to dismiss under N.C.G.S. 1A-1, Rule 12(b)(6), the court must take all factual allegations in the plaintiffs’ complaint as true. Dismissal is seldom appropriate in actions for declaratory judgment and may only be granted if it appears to a certainty either that no state of facts could support the plaintiffs’ claims or that well settled doctrines clearly prohibit those claims. Plaintiffs’ claims raise issues of first impression before the courts of North Carolina, which are not bound by opinions of the federal courts when interpreting the North Carolina Constitution. By alleging the existence of a financial barrier that excludes non-wealthy citizens from an integral part of the electoral process, plaintiffs state six separate causes of action under different provisions of the North Carolina Constitution.

First, by alleging that the wealth primary imposes a financial electoral qualification, plaintiffs state a cause of action under N.C. Const. Art. I, § 11, which provides that "no property qualification shall affect the right to vote or hold office" (emphasis added). North Carolina courts have consistently struck down any qualification on the right to vote or hold office beyond those explicitly listed in the Constitution. See Art. II §§ 6 and 7, Art. VI, § 6 (excepting, inter alia, felons, minors, and non-residents from eligibility). The state Supreme Court has noted that impairing the right to vote or hold office on the basis of wealth or property ownership is obviously impermissible. Lloyd v. Babb, 296 N.C. 416, 251 S.E.2d 843 (1979). (Federal law likewise prohibits any exclusionary mechanism, like a candidate filing fee, that falls with unequal weight on voters or candidates according to their economic status.) Both the 1971 and 1868 adopters of Art. I, § 11 intended that the provision be read broadly to prohibit any type of wealth qualification, stating emphatically that "political rights are not dependent upon or modified by property". The plain terms of Art. I, § 11 thus place an affirmative duty on the state to prevent any wealth qualification from affecting the right to vote and hold office. To establish a violation of this provision, it is not necessary that the state have specifically mandated the impermissible electoral qualification. Even if a court were to interpolate a requirement of state action under Art. I, § 11, plaintiffs have alleged sufficient facts to support a conclusion that defendants impose the wealth qualification at issue in this lawsuit.

Second, by alleging that the wealth primary prevents citizens who lack access to wealth from supporting or mounting meaningful campaigns for the General Assembly, plaintiffs have established their exclusion from an integral part of the electoral process and the debasement of their vote. Accordingly, plaintiffs state a cause of action under Art. I, § 19, which guarantees all North Carolina citizens "equal protection of the laws". Strict scrutiny applies to any discrimination that impairs the exercise of a fundamental right, such as ‘the right to vote on equal terms’. The United States Supreme Court has long recognized that practices which exclude candidates or voters on the basis of wealth have a real and appreciable impact on the exercise of the franchise, thereby violating equal protection of the law. Bullock v. Carter, 405 U.S. 134 (1972). The U.S. Supreme Court has also held that a state may not permit private actors to exclude certain citizens from any integral part of the electoral process. Terry v. Adams, 345 U.S. 461 (1953). Defendants deny non-wealthy citizens equal protection of the law by conducting elections in which the wealth primary serves an integral, exclusionary function.

Third, by alleging that the wealth primary forces non-wealthy candidates to solicit money from wealthy persons, businesses, or political committees against the dictates of their consciences, plaintiffs state a cause of action under Art. I, §§ 12 and 13, which guarantee the freedoms of conscience and association by providing, respectively, that "[t]he people have a right to assemble together for their common good" and that "no human authority shall, in any case whatever, control or interfere with the rights of conscience." Like the vast majority of North Carolina citizens, candidate-plaintiffs understand that soliciting campaign funds from persons or entities who expect to influence legislative outcomes raises the specter of corruption. Candidate-plaintiffs believe that North Carolina must have a government that "originates from the people", not from select monied interests or individuals. This allegiance to the moral foundation of popular sovereignty prevents candidate-plaintiffs from selling, or seeming to sell, their vote and their office to their contributors. By forcing candidate-plaintiffs to solicit funds from persons with access to wealth in order to mount viable campaigns, defendants violate the state constitutional guarantees of freedom of conscience and association.

Fourth, by alleging that the wealth primary grants citizens who have access to wealth disproportionate power in pre-selecting the candidates who appear on primary and general election ballots, plaintiffs state a cause of action under Art. I, § 32, which provides that "[n]o person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public service." The disproportionate influence granted to citizens with access to wealth is not incidental and subordinate to any conceivable public interest. Defendants violate Art. I, § 32 by alienating political power from the people as a whole and by putting that power in the hands of a small and financially privileged class.

Fifth, by alleging that the wealth primary denies meaningful political participation to a broad and distinct part of the electorate, plaintiffs state a cause of action under Art, I, § 2, which guarantees popular sovereignty, and under Art. I, § 8, which prohibits taxation without representation. When a substantial part of the population has no meaningful opportunity to become or to support viable candidates for office, the state fails its essential duty to constitute a government that "originates from the people, is founded on their will only, and is instituted solely for the good of the whole." Art. I, § 2. Because popular sovereignty is the fundamental premise and primary goal of the North Carolina Constitution, defendants violate plaintiffs’ rights under Art. I, § 2 by conducting an exclusionary electoral process. Further, North Carolina Courts have consistently found that Art. I, § 8 creates personal, justiciable rights, noting that each citizen who pays taxes must have some voice in deciding how those revenues will be expended.

Sixth, by alleging that the wealth primary burdens and interferes with their full and meaningful exercise of the franchise, plaintiffs state a cause of action under Art. I, § 10, which requires that "[a]ll elections shall be free". The courts of North Carolina have broadly interpreted the Constitution’s guarantee of "free" elections to strike down burdens on the exercise of the franchise, including loyalty oaths, ballot access impediments, and election commission malfeasance. Other states with similar "free elections" provisions have interpreted those provisions to protect the integrity of all aspects of the electoral process, including the meaningful and equal opportunity to select candidates for office.

This Court has jurisdiction over the subject matter of this action. Under the Declaratory Judgment Act, this court properly has jurisdiction over any ‘actual controversy’ between two parties. Plaintiffs have established their standing for the purpose of a declaratory judgment action by alleging a ‘direct and adverse affect’ upon the exercise of their constitutional rights. The posture of the instant plaintiffs is identical to the plaintiffs in Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997), a recent case in which citizens sought a judicial declaration regarding the Constitution’s qualitative guarantee of a sound basic education.

Further, plaintiffs have standing before the courts of North Carolina under general principles of North Carolina law. Plaintiffs’ allegations describe clear injury to their exercise of six separate rights guaranteed under the North Carolina Constitution. Plaintiffs clearly have a personal stake in the outcome of this controversy sufficient to assure the concrete adverseness upon which courts rely. Defendants’ citation to federal cases is unavailing, because plaintiffs’ standing in this case arises from violations of North Carolina law and the authority of North Carolina courts, which are not constrained by the jurisdictional limitations outlined in Article III of the federal constitution. Moreover, the federal cases cited by defendants all founder on a plain error of law. The United States Supreme Court decision in Terry v. Adams instructs that the discriminatory actions of private parties who exclude other citizens from participation in any integral aspect of the electoral process are indeed traceable to the state.

Because North Carolina’s judiciary has always performed its duty to determine the meaning of the state Constitution, plaintiffs’ claims do not raise non-justiciable ‘political questions’. The fact that the constitution vests the General Assembly with general legislative powers has never prevented the courts from judging whether those powers have been exercised in compliance with the Constitution’s mandates. Judicial reluctance to review the constitutionality of electoral systems was overcome long ago. Two facts strongly support the propriety of judicial review in this case: 1) incumbent legislators, who are the primary beneficiaries of the wealth primary process, have demonstrated their unwillingness to remedy the de facto exclusion of non-wealthy voters from the electoral process; and 2) North Carolina’s Constitution has no provision for the passage of legislation by ballot initiative. Accordingly, plaintiffs have no resort to the political process to remedy the exclusion from which they suffer.

Lastly, this court has the power to grant the declaratory and injunctive relief sought by plaintiffs. In the first instance, plaintiffs seek a declaration that the state’s reliance on the private financing of public elections violates the North Carolina Constitution. Second, plaintiffs ask this court to order the General Assembly to abide by the Constitution’s mandates and enact a system of public financing that will allow all citizens to participate meaningfully in elections, regardless of their economic status. The Court would charge the General Assembly with the duty of designing the details of such a system and would retain jurisdiction to ensure the legislature’s actions comply with the Constitution. The Leandro case provides recent precedent for an identical exercise of this court’s power: 1) to declare the nature of qualitative guarantees of the North Carolina Constitution; and 2) to order that the legislature devise an adequate remedy.

This court may easily articulate a judicially manageable standard against which to measure the General Assembly’s remedial actions. To effect the North Carolina Constitution’s mandate that each citizen enjoy a meaningful opportunity to participate in all integral aspects of the electoral process, the state must provide the option of voluntary public financing at levels sufficient to allow a qualified, non-wealthy candidate to mount a viable, meaningful campaign. Plaintiffs have provided substantial detail describing what specific level of funding is minimally adequate to accomplish this goal. Furthermore, the General Assembly may find explicit guidance from four examples of adequate public financing systems adopted in other jurisdictions. In any case, for the purpose of a motion to dismiss, it is not necessary that plaintiffs outline the exact form the requested remedy will take; it is sufficient to demonstrate, as plaintiffs have, that the remedy is available.

In sum, plaintiffs have exhaustively alleged how defendants’ conduct of General Assembly elections, in which the wealth primary serves an integral, exclusionary role, violates several express mandates of the North Carolina Constitution. That Constitution mandates a "frequent recurrence to fundamental principles" in order to "preserve the blessings of liberty". Art. I, § 35. Plaintiffs’ grave allegations compel such a recurrence to fundamental principles, because the private funding of public elections undermines the legitimacy of state government and defeats the primary mission of the Constitution -- to effect a "government of right [that] originates from the people, is founded upon their will only, and is instituted solely for the good of the whole." Art. I, § 2.

ARGUMENT

I.PLAINTIFFS HAVE ADEQUATELY ALLEGED SIX SEPARATE CAUSES OF ACTION.

A.Defendants employ an improper standard for Rule 12(b)(6) motions, urging the court to dismiss issues of first impression.

Under N.C.G.S. § 1A-1, Rule 12(b)(6), the Court must determine

"[w]hether the pleading is legally sufficient to state a cause of action. In ruling on the motion, the allegations of the complaint are treated as true, and on that basis the trial court must determine as a matter of law whether the allegations state a claim for which relief may be granted. The ‘issue is not whether plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.’"

Leandro v. State, 122 N.C. App. 1, 6, 468 S.E.2d 543, 547 (1996), rev'd in part on other grounds, 346 N.C. 336, 488 S.E.2d 249 (1997) (citing Morris v. Phyler Paper Stock Co., 89 N.C. App. 555, 556-57, 366 S.E.2d 556, 558 (1988)). "A Rule 12(b)(6) motion to dismiss . . . should not be granted unless it ‘appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim,’" Cage v. Colonial Bldg. Co., 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994) (quoting Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970)). Moreover, a 12(b)(6) motion

"is seldom appropriate ‘in actions for declaratory judgments, and will not be allowed simply because the plaintiff may not be able to prevail.’ The motion is allowed only when ‘there is no basis for declaratory relief, as when the complaint does not allege an actual, genuine existing controversy.’"

Leandro, 122 N.C. App. at 6, 468 S.E.2d at 547 (citations omitted); see also North Carolina Con. Power Inc. v. Duke Power Co., 280 N.C. 434, 206 S.E.2d 178 (1974); Claggett v. Wake Forest Univ., 126 N.C. App. 602, 486 S.E.2d 443 (1997); Wilkes v. North Carolina Bd. of Alcoholic Control, 44 N.C. App. 495, 261 S.E.2d 205 (1980).

Defendants urge upon the Court an inappropriate standard for motions to dismiss under Rule 12(b)(6), citing Forbis v. Honeycutt, 301 N.C. 699, 273 S.E.2d 240 (1981) and Perry v. Carolina Builders Corp. 128 N.C. App.143, 493 S.E.2d 814 (1997) for the proposition that a dismissal under Rule 12(b)(6) is "properly granted if there is ‘an absence of law to support a claim of the sort made.’" Def. Mem. at 13 (quoting Forbis, 301 N.C. at 701, 273 S.E.2d at 241). Under defendants’ interpretation of this phrase, a court may never entertain an issue of first impression. Id. at 14. The cases cited by defendants do not support this odd proposition. Both the Forbis and Perry courts employed the ‘absence of law’ phrase to describe a plaintiff’s claim that was contradicted by a uniform body of adverse, controlling authority.[3] Neither of these cases applies to the instant plaintiffs’ claims, which raise issues of first impression and are supported by the plain text of the North Carolina Constitution and numerous analogous cases. See infra at 17-45; see also Amos v. Oakdale Knitting Co. 331 N.C. 348, 416 S.E.2d 166 (1992) (even though plaintiff’s claim did not fall under any recognized rule of law, since claim was neither pre-empted by federal law nor supplanted by state legislation, grant of 12(b)(6) dismissal improper). Moreover, the Perry court recognized the established principle that

"[a] motion to dismiss a claim in an action for declaratory judgment is seldom appropriate since a claim for declaratory relief is sufficient if it alleges the existence of a real controversy arising out of the parties’ opposing contentions."

Perry, 128 N.C. App. at 146, 493 S.E.2d at 816.

Defendants wrongly urge the court to discount the factual conclusions alleged in the plaintiffs’ complaint. See, e.g., Def. Mem. at 25 (claiming the state "has not allowed anyone else to establish a precondition or qualification either to candidacy or voting."). [4] Because the only purpose of a motion under Rule 12(b)(6) is to test the legal sufficiency of the complaint, it is not proper for the trial court to make findings of fact in ruling on the motion. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979). Indeed, as Defendants concede, the Court "must accept the factual allegations as true." Def. Mem. at 13 (citing Cage, 337 N.C. at 683, 448 S.E.2d at 116). Plaintiffs have alleged in detail the substantial impairment of their political rights: because the wealth primary excludes them from supporting or mounting viable campaigns for office, they are denied representation in the General Assembly. Am. Compl. at ¶¶ 96-114. These facts must be taken as true.

B.Plaintiffs Have Stated a Cause of Action Under Art. I, § 11, Art. II §§ 6 and 7, and Art. VI § 6.

"Property Qualifications. As political rights and privileges are not dependent upon or modified by property, no property qualification shall affect the right to vote or hold office." Art. I, § 11.

Plaintiffs have comprehensively alleged that the wealth primary imposes a substantial qualification on the right to vote and hold office. See, supra, pp. 3-7. The North Carolina Constitution’s relevant prohibitions are unequivocal. In concert with the eligibility provisions of Art. II, §§ 6, 7, and Art. VI § 6, these clear terms of the Constitution prohibit the state from conducting elections in which a person’s vote, or ability to stand for office, is dependent upon the size of his wallet. [5]

By demonstrating that amassing a substantial sum of money is a prerequisite to any meaningful General Assembly campaign, plaintiffs’ allegations clearly establish a violation of Art. I, § 11, and the cognate provisions regarding eligibility for office. Plaintiffs have alleged that the ability to raise money has become the primary criterion for evaluating prospective candidacies. Am. Compl. at ¶ 65. Non-wealthy candidates are discouraged from running for office. Am. Compl. at ¶¶ 99, 104. Those who persevere are unable to spread their electoral message for want of funding. Am. Compl. at ¶¶ 96, 97, 100-102. No amount of grassroots support will compensate for a lack of basic funds. Id. The regression analyses and historical data offered by plaintiffs confirm that electoral spending is indispensable if a candidate wishes to mount a meaningful campaign. Am. Compl. at ¶¶ 60-63. In sum, without a threshold level of funding, no citizen may meaningfully stand for office. As a result, the field of candidates is significantly constricted and the meaning of non-wealthy citizens’ vote is systematically debased.[6] The wealth primary imposes an empirically verifiable and well-understood qualification on the right to vote and hold office.

Defendants imply that the rights to vote and to hold office find little protection under the North Carolina Constitution. Def. Mem. at 15-25. In fact, under North Carolina law, the right to vote is broad, personal, and fundamental -- and the right to hold office may only be constrained in accordance with the explicit dictates of the North Carolina Constitution.

"The theory of our State government is ‘that all political power is vested in and derived from the people.’" People ex rel. Nichols v. McKee, 68 N.C. 429, 430 (1873) (citing Art. I, § 2). The state Supreme Court has admonished courts to

"keep in mind that this is a government of the people, in which the will of the majority, legally expressed, must govern and that [the Constitution] and all Acts providing for elections should be liberally construed, that tend to promote a fair election or expression of the popular will. . . .

"And a qualified elector cannot be deprived of his right to vote, [lest] the theory of our government that the majority shall govern, be destroyed by either the wilful or negligent acts [of election officials] . . . . This would be self-destruction, governmental suicide. . . .

"[Election regulations and officials should] promote the object to be attained -- the free, full, and fair expression of the will of the qualified voters . . ."

State ex rel. Quinn v. Lattimore, 120 N.C. 426, 428-30, 26 S.E. 638, 639 (1897). In North Carolina, the "equal right to vote is a fundamental right." State ex rel. Martin v. Preston, 325 N.C. 438, 454, 385 S.E.2d 473, 481 (1989); Northhampton County Drainage District v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990) ("right to vote on equal terms is a fundamental right"); White v. Pate, 308 N.C. 759, 768, 304 S.E.2d 199, 205 (1983). The state Supreme Court has recognized that "the right to vote, ‘a fundamental political right, because preservative of all rights’ [must] be shared equally by all citizens." Lloyd v. Babb, 296 N.C. 416, 438, 251 S.E.2d 843, 858 (1979) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)).

The North Carolina Supreme Court has consistently prohibited any qualifications on the right to vote beyond those expressed in the Constitution. State v. Chaplin, 228 N.C. 705, 710, 47 S.E.2d 12, 16 (1948) ("the Legislature cannot prescribe any qualifications for voters different from those found in the organic law"); Starbuck v. Town of Havelock, 252 N.C. 176, 113 S.E.2d 278 (1960); Cole v. Sanders, 174 N.C. 112, 93 S.E.2d 476 (1917) (Clark, C.J., concurring). "The General Assembly cannot render any ‘voter’ ineligible for office by exacting any additional qualifications [beyond those listed in the Constitution]." Moore v. Knightdale Bd. of Elections, 331 N.C. 1, 5, 413 S.E.2d 541, 543 (1992) (quoting State ex rel. Spruill v. Bateman, 162 N.C. 588, 591, 77 S.E. 768, 769 (1913)). Nor can the Board of Elections take actions that alter constitutionally or statutorily established voting rights. States’ Rights Democratic Party v. State Bd. of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948).

Defendants misleadingly cite Preston for the proposition that it is merely a "privilege" to run for office. Def. Mem. at 18. The Preston Court found that the right to candidacy was not absolute and inalienable, as is plain from Art VI, § 8 of the Constitution, which disqualifies felons from elective office. The North Carolina Supreme Court has elsewhere stated that all burdens or qualifications to the right to run for office, such as a change in the "method of selection", must be "consistent with the Constitution." Penny v. Bd. of Elections, 217 N.C. 276, 279, 7 S.E.2d 559, 561 (1940). Any change in the law affecting the right to hold office must be "nondiscriminatory". Id. Additional qualifications to the right to seek or hold office, beyond those set forth in the Constitution, must be struck down. See Moore, 331 N.C. at 11, 413 S.E.2d at 549 (striking ‘resign to run’ statute adopted by the General Assembly because it "effectively disqualifies a distinct category of potential candidates"); compare Preston, 325 N.C. at 462, 385 S.E.2d at 486 (finding in text of Constitution an intent to allow legislature "limited flexibility" in setting residency requirements for candidates); Baker v. Martin, 330 N.C. 331; 410 S.E.2d 887 (1991) (party affiliation requirement upheld for the limited purpose of filling judicial vacancies; because vacancies filled by appointment, not election, constitutional prohibition against qualifications on "election to office" not violated).

Defendants also wrongly cite Martin v. State, 330 N.C. 412, 410 S.E.2d 474 (1991) as an authority undermining the status of the fundamental right to candidacy. As in Preston, the Martin Court found that a specific restriction on judicial office was explicitly authorized by the People in a separate provision of the Constitution. The Martin Court did not reach the issue of whether there is a fundamental right to candidacy under Art. I, § 19 of the North Carolina Constitution, and never addressed the scope of Art. I, § 11. Furthermore, the Court noted that "many legal commentators" support the existence of such a fundamental right. 330 N.C. at 418, 410 S.E.2d at 478.

In Lloyd v. Babb, the Supreme Court of North Carolina noted that denying voters the franchise "on the basis of wealth, property ownership, etc." would be "obviously impermissible". 296 N.C. at 441, 251 S.E.2d at 859; see also West v. Moore, 305 F. Supp. 683, 687 (E.D.N.C.. 1969) ("the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence") (emphasis added). The United States Supreme Court has long recognized the "real and appreciable impact on the exercise of the franchise" that voters face under a system that excludes certain candidates on the basis of their lack of wealth. Bullock v. Carter, 405 U.S. 134, 144 (1972); Lubin v. Panish, 415 U.S. 709 (1974); see also Harper v. Virginia State Board of Elections, 383 U.S. 663, 666 (1966) (striking down a $1.50 poll tax in Virginia state elections because "a State violates the Equal Protection Clause . . . whenever it makes the affluence of the voter or payment of any fee an electoral standard . . . [v]oter qualifications have no relation to wealth"); Reynolds v. Sims, 377 U.S. 533, 562 (1964) ("Legislators are elected by voters, not farms or cities or economic interests.").

In Bullock, the Court struck down filing fees ranging from $150 to $8,900 that Texas required primary candidates to pay to their political parties. Though, like the wealth primary, the fee system in Bullock did not prevent anyone from casting a ballot, nor "quantitatively dilute votes that have been cast", it did create "barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose." 405 U.S. at 143. Finding it "essential to examine in a realistic light the extent and nature of [the] impact" of filing fees on voters, the Court decided that the size of the fees imposed under the Texas system gave them "a patently exclusionary character." Id. Many "potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how enthusiastic their popular support." Id. The Court deemed the impact of this "exclusionary mechanism" on voters "neither incidental nor remote" as it "substantially limited [the] choice of candidates" and "fell more heavily on the less affluent segment of the community, whose favorites" were likely "unable to pay the large costs required by the . . . system." Id. at 144.[7] By precluding prospective candidates without wealth from seeking office, the fees violated the rights of both voters and candidates. Notably, as candidates facing the wealth primary system, plaintiffs Ford, Harper, Mallison, Carter and Loftin would have to raise well over twelve times the amount of the highest filing fee in Bullock in order to have what it takes, on average, to win a seat in the North Carolina State Senate today ($125,619). Am. Compl. at ¶¶ 46.

Defendants acknowledge that Art. I, § 11 represents an unqualified repudiation of the property qualifications on the right to vote and hold office that existed before the adoption of the 1868 Constitution, which required voters to possess real or taxable personal property in order to cast votes for the House and denied the franchise entirely to paupers, women, and slaves. Def. Mem. at 23. Notably, the drafters of Art. I, § 11 included a clear statement of the breadth of their intent in the provision’s first clause, which instructs that "political rights are not dependent upon and modified by property". The inclusion of this broad statement forestalls any claim that Art. I, § 11 only prohibits the specific qualifications in place before 1868. Under its plain meaning, Art. I, §11 prohibits any type of property qualification that affects the right to vote or hold office.

In fact, shortly after the adoption of the property qualifications prohibition, the North Carolina Supreme Court rejected a limited reading of the term ‘property’ in the Declaration of Rights, noting that the term "embraces everything which a man may have exclusive dominion over", is not limited to "tangible" property, and should be interpreted in "its most general sense". Wilson v. Board of Aldermen, 74 N.C. 748, 756, 1876 N.C. LEXIS 179, **7 (1876) (passage discussing, inter alia, the predecessor to Art. I, § 11).

A review of historical documents confirms the broad intentions of the 1868 adopters with respect to the property qualification prohibition. In the 1868 convention, which took up the debate on Article VI of the constitution relating to suffrage, the conservative minority report urged the retention of all property qualifications,[8] which position was roundly rejected by speakers from the Republican majority.[9] One argued that "a property qualification is a relic of aristocracy, which will not be longer tolerated in this free republic."[10] Another noted,

"What have political rights to do with the color of a man’s face, or the quality of the coat upon his back? His rights pertain to him as a man — and have nothing to do with the accidents of his birth, the weight of his purse, or the extent of his mental culture." (emphasis added).[11]

Abolition of property qualifications was predicated upon the delegate’s understanding that political equality is a necessary condition of democracy. For example, one delegate explained his opposition to property qualifications by pointing to the consequences if the election laws had the effect of barring those without money: "[t]he best and the most honest men are too frequently totally devoid of financial ability, and often die in poverty, but the State cannot spare such men from her counsels."[12] Another delegate stressed that the prohibition of wealth qualifications in elections was important

[a]s a matter of safety to the State, since to exclude men permanently from political life, rights and privileges, is, and must necessarily be, to commit them to an unprivileged class, and separate them from the common interests, and from personal care, concern and responsibility; and tends, directly and materially, to make them uneasy, disappointed, and revolutionary. . . . [T]he instincts, the judgment, the wisdom of the whole people are far more likely to be right than the narrow prejudiced and selfish passions and opinions of the few.

Remarks of Mr. Rich, in North-Carolina Standard (Raleigh), Feb. 25, 1868, at 2.

The Constitution of North Carolina -- and Art. I, § 11 in particular -- place an explicit affirmative obligation on the defendants to conduct full, free and fair elections. See, e.g., State Bar v. Dumont, 304 N.C. 627, 639, 286 S.E.2d 89, 97 (1982) ("the provisions of the [Declaration of Rights] are commands and not mere admonitions"). Accordingly, the absence of legislation mandating every aspect of the wealth primary poses no bar to plaintiffs’ cause of action under Art. I, § 11. Defendants have not cited any authority for the contrary proposition. The express political theory that "political rights are not dependent upon or modified by property" and the Constitution’s primary mission to establish a "government of right" founded upon sovereignty of the "whole" citizenry place an unequivocal affirmative duty on the State to ensure that "no property qualification shall affect the right to vote or hold office."[13] To hold otherwise would subvert the mandate of democratic, representative government in North Carolina. [14]

Even if some form of state action were required under Art. I, § 11, plaintiffs have alleged sufficient facts to establish state action in the conduct of the wealth primary. See Weston v. Carolina Medicorp, Inc., 102 N.C. App. 370, 377, 402 S.E.2d 653, 657 (1991). In particular, plaintiffs have alleged that the state creates the legal framework governing the conduct of the wealth primary. Am. Compl. at ¶¶ 79-88. Moreover, the state has entered the field of campaign financing by providing ineffective partial funding programs. Am. Compl. at ¶¶ 81-84, 94. By employing the wealth primary to fund elections, the state impermissibly delegates the authority to determine qualifications for public office, alienating a power exclusively reserved to the state by the Constitution. Am. Compl. at ¶¶ 3, 50, 79-87, 90, 94, 124; compare Northhampton County Drainage District v. Bailey, 326 N.C. 742, 748, 392 S.E.2d 352, 357 (1990). The electoral process in North Carolina, including the activities of candidates and their supporters, exclusively serves an unique public function, namely the just constitution of representative self-government. See Flagg Brothers v. Brooks, 436 U.S. 149, 158 (1978). As explained in detail, infra at pp. 32-34, the United States Supreme Court instructed in Terry v. Adams that discriminatory conduct by private actors that excludes other citizens from participation in an integral part of the electoral process is indeed traceable to the state. Accordingly, plaintiffs have stated a cause of action under Art. I, § 11 and the cognate candidate/voter eligibility provisions of the North Carolina Constitution.

C.Plaintiffs Have Stated a Cause of Action Under Art, I, § 19.

"Law of the Land; Equal Protection of the Laws. . . . No person shall be denied equal protection of the laws; . . . ." Art. I., § 19.

"When a governmental act classifies persons in terms of their ability to exercise a fundamental right . . . or when a governmental classification distinguishes between persons in term of any right, upon some ‘suspect’ basis, the upper tier of equal protection analysis is employed. Calling for ‘strict scrutiny’, this standard requires the government to demonstrate that the classification is necessary to promote a compelling governmental interest." Texfi Industries, Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142, 149 (1980); see also Northhampton County Drainage District v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990). The "constitutional protection against unreasonable discrimination under color of law is not limited to the enactment of legislation. It extends also to the administration and execution of laws valid on their face." Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971); accord Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987); Maines v. City of Greensboro, 300 N.C. 126, 265 S.E.2d 155 (1980).

The North Carolina Supreme Court has defined a "fundamental right" as one "explicitly or implicitly guaranteed by the Constitution." Rosie J. v. North Carolina Dep’t. of Human Resources, 347 N.C. 247, 491 S.E.2d 535 (1997) (citing San Antonio Indep. School Dist. V. Rodriguez, 411 U.S. 1, (1973)). The quantity of the Constitution explicitly devoted to elections[15] clearly implies protection of all integral aspects of the electoral process.[16] The Bailey court held that persons denied "the right to vote on equal terms" have been "deprived of a fundamental right." 326 N.C. at 747, 392 S.E.2d 356. In Bailey, a drainage district spanned two counties and the residents of only one of those counties were allowed to elect officials who had the power to appoint commissioners of the entire drainage district. The Bailey court struck down this impermissible electoral scheme as a violation of the North Carolina Constitution’s guarantee of Equal Protection of the Laws, holding that the state must provide all citizens an opportunity to elect officials "on equal terms". Id. In the instant matter, plaintiffs have adequately alleged that the state fails to provide its citizens an opportunity to vote on equal terms, because certain citizens have disproportionate say in pre-selecting candidates for office. The wealth primary impermissibly controls who can meaningfully compete in elections.[17]

Alternatively, plaintiffs’ allegations demonstrate that that they have been "relegated to such a position of political powerlessness as to command particular attention from the judiciary" that they should be considered a "suspect class" for the purpose of equal protection analysis. Texfi, 301 N.C. at 11, 269 S.E.2d at 149. Unlike the allegations in cases like Rosie J. and Rodriguez, plaintiffs do not allege that their economic status generally confers upon them a ‘suspect status’ in all affairs civic and personal. Instead, plaintiffs’ allegations draw a direct line between their economic status and their political disenfranchisement in the electoral process. Accordingly, they fully allege the "political powerlessness" in the democratic process that makes their condition suspect and deserving of special judicial attention.[18]

North Carolina courts, "when construing the provisions of the North Carolina Constitution, are not bound by opinions of the federal courts ‘construing even identical provisions of the Constitution of the United States’ . . . ‘as long as [North Carolina] citizens are thereby afforded no lesser rights than they are guaranteed by the parallel federal provision.’" Evans v. Cowan, 122 N.C. App. 181, 183-84, 468 S.E.2d 575, 577 (1996) (citing, inter alia, Gaston Bd. of Realtors v. Harrison, 64 N.C. App. 29, 33, 306 S.E.2d 809, 812 (1983), rev'd on other grounds, 311 N.C. 230, 316 S.E.2d 59 (1984) (construing Art. I, Section 19)); see also Lowe v. Tarble, 313 N.C. 460 329 S.E.2d 648 (1985) (construing Art. I, Section 19, state courts may grant relief "in circumstances under which no relief might be granted" under the federal constitution); White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983); McNeill v. Harnett County, 327 N.C. 552, 563, 398 S.E.2d 475, 481 (1990); State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988); State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984). Federal law is a baseline for the protection of constitutional rights; the North Carolina Constitution may provide much broader protection than the Federal Constitution. See, generally, James G. Exum Jr., Rediscovering State Constitutions, 70 U.N.C. L. Rev. 1741 (1992); Louis D. Bilionis, On the Significance of the Constitutional Spirit, 70 U.N.C. L. Rev. 1803 (1992).

Some level of "‘state action’ is required to trigger the protections of the ‘synonymous’ . . . provisions of the Fourteenth Amendment . . . and Article 1, § 19 of the North Carolina Constitution". Weston v. Carolina Medicorp, Inc., 102 N.C. App. 370, 402 S.E.2d 653 (1991) (due process case). North Carolina courts, however, have rarely addressed the boundaries of state action doctrine. In Gaston Bd. of Realtors, the state Court of Appeals noted that, to distinguish between state and private action, "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself". 64 N.C. App. At 32, 306 S.E.2d at 811 (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)).[19] In Weston, the Court of Appeals also turned to federal case law to hold that

"the required nexus may be shown where ‘the state creates the legal framework governing the conduct, . . . if it delegates authority to the private actor, . . . or sometimes if it knowingly accepts the benefits derived from unconstitutional behavior.’ . . . The nexus may also be shown where ‘the private entity has exercised powers that are traditionally the exclusive prerogative of the State.’"

Weston, 102 N.C. App. at 377, 402 S.E.2d at 657 (citations omitted). As argued supra, at pp. 27-28, plaintiffs’ claims fall squarely into three of these categories, demonstrating the required nexus between the wealth primary and defendants.

The United States Supreme Court decision in Terry v. Adams, 345 U.S. 461 (1953) directly supports plaintiffs’ claim under Art. I, § 19. In Terry, the Court held that private citizens could not deprive a discrete minority of their right to participate in "any ‘part of the machinery for choosing officials’" despite the absence of state involvement in the private discriminatory conduct and despite the fact that the right of said minority to cast ballots in primary and general elections was in no way infringed. Terry, at 481 (Clark, J., concurring). This case -- whose holding was recently reaffirmed in Morse v. Republican Party of Virginia, 517 U.S. 186, 213 (1996) -- provides direct, controlling authority for the conclusion that the instant plaintiffs’ injuries are the result of ‘state action’. See generally, Jamin Raskin & John Bonifaz, Equal Protection and The Wealth Primary, 11 Yale Law & Policy Rev. 273 (1993).

Writing for the court, Justice Black found it "immaterial that the state does not control" the private conduct which "has become an integral part . . . of the elective process that determines who shall rule and govern". Terry, at 469. Concurring in the judgment, Justice Clark found that "any ‘part of the machinery for choosing officials’ becomes subject to the Constitution’s restraints," even if that machinery takes "the form of [a] ‘voluntary association’ of unofficial character." Id. at 481. He concluded that

"when a state structures its electoral apparatus in a form which devolves upon a political organization the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of government which draw the Constitution's safeguards into play."

Id. at 484. Justice Frankfurter noted that "somewhere, somehow, to some extent, there [must] be an infusion of conduct by officials, panoplied with State power, into any scheme" by which citizens are denied their voting rights in order to find state action. Id. at 473.[20] Under any of these tests, plaintiffs’ allegations that the wealth primary is an integral "part of the machinery for choosing officials" are sufficient to demonstrate state action for the purpose of Art. I, § 19.

Notably, a description of the effects of the Jaybird primary struck down in Terry virtually mirrors the plaintiffs’ allegations of the effects of the wealth primary in the case at bar:

"[G]enerally the persons endorsed in the Jaybird Primary are the only persons whose names appear on the ballot at the Democratic Primaries. And such persons are almost invariably elected or nominated at such Democratic Primaries and their names appear as Democratic Nominees on the official ballot in the General Election in November. The Democratic Nominees are almost invariably elected at such General Election."

Terry v. Adams, 90 F. Supp. 595, 598 (1950). Similarly, the instant plaintiffs have alleged that candidates with access to substantial wealth are almost invariably the only persons whose names appear on election ballots and who win in general elections. Am. Compl. at ¶¶ 98, 103, 107. Assuming that these facts are true, as the court must, Terry instructs that the consequent impairment of non-wealthy citizens' right to vote is indeed the product of ‘state action’.[21]

The common sense, functional analysis of the electoral system’s fairness was adopted by courts of North Carolina decades before Terry was decided. Repeatedly decrying the "evils" of candidate selection systems that gave certain citizens disproportionate influence, the North Carolina Supreme Court upheld against constitutional attack the (then relatively new) primary system as a necessary "cure" and "relief". State v. Cole, 156 N.C. 618, 619, 72 S.E. 221, 222 (1911). Notably, the Court recognized that "the primary system and its regulation by law has become an integral part of our political system in North Carolina", foreshadowing the Supreme Court’s functional, common-sense approach to elections in Terry. Id. at 622 (emphasis added). State v. Cole not only establishes the propriety of judicial review of the state electoral system, but it also rejects a formalistic analysis of state action. Noting that the "primary election was a public election, and any conduct which interferes with the freedom or purity of the election is punishable at common law", the Court rejected the claim that the offending conduct could not be punished because the defendant had not been charged as "a State or county officer." Id. at 623 (emphasis added).

Just as the Jaybird primary was an integral to Texas elections in Terry, the private, non-governmental use of money in North Carolina legislative campaigns has become an integral part of the machinery of its electoral process. The exclusion of plaintiffs from an integral part of the electoral process constitutes a concrete and particularized harm that violates the guarantee of equal protection of the law. See Terry, Bullock, Harper and Morse. Plaintiffs have stated a cause of action under Art. I, § 19.

D.Plaintiffs Have Stated a Cause of Action Under Art. I, §§ 12 and 13.

"Right of Assembly and Petition. The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; . . ." Art. I, § 12

"Religious Liberty. . . . no human authority shall, in any case whatever, control or interfere with the rights of conscience." Art. I, § 13.

Art. I, §§ 12 and 13 guarantee the freedoms of conscience and association. The Supreme Court of North Carolina has recognized that the "liberty of conscience" is implicated in all stages of exercise of the franchise. See States Rights Democratic Party v. State Bd. of Elections, 229 N.C. 179, 190, 49 S.E.2d 379, 387 (1948). Plaintiffs have alleged that the wealth primary forces them to violate their consciences by soliciting funds from persons or entities who might have a direct interest in improperly influencing legislative outcomes or whose interests might not coincide with their own. Am. Compl. at ¶¶ 100, 101, 104. Plaintiffs’ beliefs in this regard reflect a profound moral commitment to the democratic notion that North Carolina’s government "originates from the people . . . and is instituted solely for the good of the whole." Id.; see Art. I., § 2. Plaintiff Harper, for example, ran on a platform which opposed building on local wetlands and tax breaks for local industries. Am. Compl. at ¶ 100. To demonstrate his integrity and his commitment to these goals, Harper foreswore any contributions from persons affiliated with those local industries. Id. Without such financial support, Harper was unable spread his electoral message and compete meaningfully against his well-financed opponents. Id. Similarly, having witnessed how wealthy entities had influenced the actions of elected representatives, plaintiff Loftin renounced contributions from local businesses on the belief that government should represent the entire electorate and not just campaign contributors. Am. Compl. at ¶ 101. This belief cost her the opportunity to mount a viable campaign, purely because of the role of money in determining electoral viability. Id. The wealth primary thus forces non-wealthy citizens to associate with persons who do have access to wealth who may not share their moral and political commitments.

Defendants cite wholly inapposite authority to support their contention that plaintiffs’ injuries are not protected by the prohibition against incursions upon rights of conscience in sections 12 and 13 of the Declaration of Rights. In In re Williams, 269 N.C. 68 (1967), the court held that a citizen’s claim of religious privilege (to avoid a lawful court order to testify) may not trump the judicial process. Thus, Williams stands merely for the proposition that the state may abridge freedoms of conscience only if justified by a compelling need to uphold some governmental function. In the instant matter, defendants can not argue that the wealth primary is necessary to uphold the governmental function of conducting elections. [22] Plaintiffs have adequately stated a cause of action under Art. I, §§ 12 and 13 of the North Carolina Constitution.

E.Plaintiffs Have Stated a Cause of Action Under Art. I, § 32.

"Exclusive Emoluments. No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services." Art. I, § 32.

Defendants’ conduct of the wealth primary confers a special privilege upon citizens with access to large sums of money, by giving those persons disproportionate influence over the nomination and selection of candidates for the General Assembly. "[N]ot every classification which favors a particular group of persons is an ‘exclusive or separate emolument or privilege’ within the meaning of the constitutional prohibition." Lowe v. Tarble, 312 N.C. 467, 470, 323 S.E.2d 19, 22 (1984). In State v. Knight, 269 N.C. 100, 107-08, 152 S.E.2d 179, 183-84 (1967), the state Supreme Court held that

"the limitation . . . does not apply to an exemption from a duty imposed upon citizens generally if the purpose of the exemption is the promotion of the general welfare, as distinguished from the benefit of the individual, and if there is a reasonable basis for the Legislature to conclude that the granting of the exemption would be in the public interest."

See also Town of Emerald Isle v. State, 320 N.C. 640, 653, 360 S.E.2d 756, 764 (1987). Special privilege in access to the political process passes neither of the branches of the test articulated in Knight: it does not promote the general welfare to marginalize low income citizens, nor can the Legislature proffer a reasonable basis for claiming it would.

In State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989), the state Supreme Court rejected an argument that a law (allowing certain incumbent judges to hold over in office while the number of judicial districts increased and staggered terms were eliminated) constituted a special privilege or emolument under § 32. Citing the presumption of constitutionality of legislative acts, the Court found that "any benefit to the incumbent judges [was] incidental and subordinate to the legitimate public benefits obtained" by the plan to eliminate staggered terms. Id. at 456. In the present case, however, the benefits that redound to persons with access to wealth are neither incidental nor subordinate to any identifiable public interest. Similarly In Crump v. Snead, 517 S.E.2d 384 (1999), the Court of Appeals found no emolument in the extension of a city councilman’s term because there was a reasonable basis to conclude that the legislation extending his term "served the public interest". No such basis exists in this case.

Defendants’ citation to Madison Cablevision, Inc. v City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989) is likewise unavailing. Not only did that case not involve the exercise of a fundamental right, but the case precisely supports plaintiffs’ claims.[23] The Madison court found it impossible for a city to grant itself an emolument simply by retaining the power to provide cable service to its residents. In so holding, the court noted that "[i]t is not retention of powers but alienation of powers [from the community] that is prohibited." 325 N.C. at 655, 386 S.E.2d at 212. Plaintiffs’ allegations indeed describe the defendants’ alienation of the power to determine electoral qualifications, conferring that power upon a small class of select citizens with access to substantial wealth. Accordingly, plaintiffs have stated a cause of action under Art. I, § 32.

F.Plaintiffs Have Stated a Cause of Action Under Art. I, §§ 2 and 8.

"Sovereignty of the People. All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole." Art. I, § 2.

"Representation and Taxation. The people of this State shall not be taxed . . . without the consent of themselves or their representatives in the General Assembly, freely given." Art. I, § 8.

Plaintiffs’ allegations sound at the core of the Constitution’s guarantees of popular sovereignty and representation expressed in Art. I,§ 2 and § 8. To the extent the State denies meaningful political participation to a distinct part of the citizenry, popular sovereignty and representation are unavoidably destroyed and government cannot be said to "instituted solely for the good of the whole." Art. I § 2. Because the people employ elections to constitute all three branches of government, accurate determination of the "free full and fair expression of the will of the qualified voters" is the fundamental premise of the entire Constitution. See Lattimore, 120 N.C. at 428-30, 26 S.E. at 639. Its achievement is a necessary condition of "government of right [which] originates from the people, [and] is founded on their will only". Art. I, § 2.

Defendants argue that provisions of the Declaration of Rights which guarantee sovereignty of the people are mere superfluous ornaments, not intended to "give rise to justiciable rights". Def. Mem. at 30. To support this proposition, they do not cite any case law from this, or any other jurisdiction. Instead, they merely cite the opinion of Professor John Orth, who offers no citation to any authority, legal or otherwise, for his conclusion. John V. Orth, The North Carolina State Constitution 40 (1993). Instead, Prof. Orth asserts that, because these provisions are ‘abstractions’, they can not create justiciable rights. Orth, at 40. The North Carolina Supreme Court, however, reached a contrary conclusion in Corum, concluding that "[t]he civil rights guaranteed by the Declaration of Rights in Article I of our Constitution are individual and personal rights entitled to protection . . ." Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). Professor Orth’s logic is also suspect on its face. If ‘abstraction’ is the hallmark of non-justiciability, then the courts of North Carolina should never entertain suits based upon such patently abstract phrases as "equal protection of the laws", Art. I, § 19, "cruel and unusual punishments", Art. I, § 25, the "inalienable right" to the "fruits of [ones’] labor", Art. I, § 1, or even the "freedom of speech", Art. I, § 14. North Carolina courts have repeatedly addressed claims under all these "abstract" provisions. [24]

Defendants also contort Prof. Orth’s description of Art. I, § 2 as a "revolutionary truism" to suggest that the provision is superfluous. This interpretation, however, is obviously contradicted elsewhere in Orth’s work. Prof. Orth observed that "[f]undamental principles, such as popular sovereignty and separation of powers, are first set out in general terms, to be given specific application in later articles." Orth, at 38. If the fundamental principle of ‘separation of powers’ clearly gives rise to justiciable rights, see, e.g., State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982), so must ‘popular sovereignty’, its sister "fundamental principle" [25] In effect, defendants urge the court to presume that the framers and adopters of this Constitution included some mandates ‘for use’ and others just ‘for show’ -- a dangerous doctrine which invites temporal judges to rewrite the fundamental law as they may please, enforcing those provisions they favor while effectively excising others.

To fend off the obvious import of plaintiffs’ allegations, defendants resort to bare factual denial, claiming that "legally [the plaintiffs] have representation." Def. Mem. at 31. Whether or not plaintiffs ‘legally’ have representation is precisely the question posed by this lawsuit. The Court cannot credit defendants’ conclusion in this regard without making a factual determination of a type clearly prohibited in deciding a motion to dismiss. Plaintiffs have alleged that they cannot participate meaningfully in elections on account of their economic status, that they do not stand a meaningful chance of supporting a low-income candidate in a viable campaign to represent their interests. These allegations, which must be taken as true for the purpose of this motion, more than suffice to state a claim for a violation of the Constitution’s guarantee of representative government in Art. I, § 2.

Defendants cite Moore v. Mayor and Comm’rs of Fayetteville, 80 N.C. 154 (1879), to imply that Art. I, § 8 "has no application to individuals, but to political communities as such." Def. Mem. at 31. Defendants’ implication, however, is directly contradicted by another case in which the North Carolina Supreme Court upheld an individual’s right to vote in elections for the House, in part, because to deny him that vote would violate "the genius of the Constitution . . . which makes representation go hand in hand with taxation." Roberts v. Cannon, 20 N.C. 398, 263, 1839 LEXIS 70, **19 (1839). More recent cases confirm the breadth of the prohibition of taxation without representation. See, e.g., Wilson v. City of High Point, 238 N.C. 14, 21, 76 S.E.2d 546, 552 (1953) (approving "the principle that taxation and representation must go together, that one municipal subdivision cannot levy a tax upon property located in another"); Board of Comm’rs of Vance County v. Town of Henderson, 163 N.C. 114, 120, 79 S.E. 442, 444 (1913) ("Taxation without representation often leads to the exercise of arbitrary and even despotic power, and is not tolerated or permitted in our system of government. He who pays the taxes should have some voice . . . in deciding how they should be laid and how and for what purposes they should be expended."). The Court of Appeals has also implied that "improper" elections would violate the rights of individuals to be free of taxation without representation. Jones v. Jeanette, 34 N.C. App. 526, 533, 239 S.E.2d 293, 297 (1977).

Plaintiffs have alleged that, because of the wealth primary employed by defendants to constitute state government, plaintiff-voters are regularly unable to identify persons on the ballot who will represent the interests of low-income citizens. As a result, plaintiffs have alleged more than sufficient facts to support a cause of action under the provisions of the North Carolina Constitution that guarantee the sovereignty of the people and prohibit taxation without representation.

G.Plaintiffs Have Stated a Cause of Action Under Art. I, § 10.

"Free Elections. All elections shall be free." Art. I, § 10.

Plaintiffs have also alleged a separate cause of action under Art. I, § 10. The wealth primary unmistakably interferes with plaintiffs’ exercise of their right to participate freely in elections. Defendants’ attempts to deprive Art. I, § 10 of meaning are entirely without merit. See Def. Mem. 21-31. In DuMont, the Court cited Prof. Sanders for the proposition that

"the frequently used subjunctive mood was replaced [in the 1971 Constitution] by the imperative in order to make clear that the provisions of [the Declaration of Rights] are commands and not mere admonitions. (For example. ‘All elections ought to be free’ became ‘All elections shall be free.’ )"

DuMont, 304 N.C. at 639, 286 S.E.2d at 97 (emphasis added). This specific intent to express a command belies defendants’ argument that Art. I, § 10 is an ornamental nullity.

Defendants also cite Prof. Orth’s opinion that the "meaning [of Art. I, § 10] is plain: free from interference or intimidation" to argue that the free elections provision should have no application to the substantial injuries alleged by plaintiffs. Def. Mem. at 23. Should this court adopt Prof. Orth’s interpretation, plaintiffs have indeed clearly alleged that the wealth primary interferes with their ability to participate freely and meaningfully in General Assembly elections. Moreover, in a number of cases adjudicating the merits of claims brought under this (patently abstract) provision, the courts have rejected a narrow interpretation of Art. I, § 10.

In Swaringen v. Poplin, 211 N.C. 700, 191 S.E. 746 (1937), the North Carolina Supreme Court considered the claim of a candidate for a county commission that the local election board deliberately undercounted his tally by one hundred votes in order to hand the election to his opponent. See id. at 700-01, 191 S.E. at 746. The court rejected defendant’s argument that the candidate’s only remedy was statutory, recognizing a cause of action for the plaintiff directly under the free election provision:

In the present case fraud is alleged. The courts are open to decide this issue in the present action. In article 1, § 10, of the Constitution of North Carolina, we find it written: "All elections ought to be free." Our government is founded on the consent of the governed. A free ballot and a fair count must be held inviolable to preserve our democracy. In some countries the bullet settles disputes, in our country the ballot.

Id. at 702, 191. S.E. at 747. In Clark v. Meyland, 261 N.C. 140, 134 S.E.2d 168 (1964), the state Supreme Court decided that a mere oath of allegiance, required upon changing party affiliation, violated Art. I, § 10. More recently, the federal court for the Eastern District of North Carolina addressed a claim under Art. I, § 10 in Obie v. North Carolina State Board of Elections, 762 F. Supp. 119, 121 (E.D.N.C. 1991), finding a ten percent signature requirement for local unaffiliated candidates to appear on the ballot a violation of the guarantee of "free" elections.

The interpretation of "free elections" clauses in other states also provides insight into the scope of the right protected. For example, the Colorado Supreme Court wrote in 1916:

"An election, to be free, must be without coercion of every description. An election may be held in strict accordance with every legal requirement as to form, yet, if in point of fact the voter casts the ballot as the result of intimidation, if he is deterred from the exercise of his free will by means of any influence whatever, although there be neither violence nor physical coercion, it is not a free and equal election within the spirit of the Constitution."

Neelley v. Farr, 158 P. 458, 511 (Colo. 1916) (quoting DeWalt v. Bartley, 146 Pa. 529, 24 Atl. 185 (Pa. 1892)). Other cases have also defined the right broadly.[26] Of all the attempts to define the meaning of a state free elections provision, perhaps none is more relevant to the present case than the following statement from the Illinois Supreme Court:

"To say that the voters are free to exercise the elective franchise at a general election for nominees in the choice of which unwarranted restrictions and hindrances were interposed would be a hollow mockery. . . . The provisions by which the candidates are required to buy their way into office are an unwarranted hindrance and impediment to the rights of the candidates and voters alike, and are illegal and void."

People ex rel. Breckton v. Board of Election Comm’rs, 221 Ill. 9, 22-23, 77 N.E. 321, 324-25 (Ill. 1906), overruled in part on other grounds by People ex rel. Lindstrand v. Emmerson, 165 N.E. 217, 223-24 (Ill. 1929) (quoting State v. Drexel, 74 Neb. 776, 105 N.W. 174 (1905)).

Plainly, plaintiffs’ claims of exclusion from an integral aspect of the political process state a claim for relief under the broad range of interests identified above. If a simple oath is deemed enough to violate the mandate that elections "shall be free", see Clark v. Meyland, supra, then the plaintiffs’ detailed claims of an unconstitutional burden on the exercise of basic political rights are beyond cavil.

II. THIS COURT HAS JURISDICTION OVER THE SUBJECT MATTER OF THIS ACTION.

Defendants contest this Court’s jurisdiction on two grounds: 1) that these plaintiffs do not have standing before the courts of North Carolina; and 2) that plaintiffs’ complaint raises non-justiciable "political questions". Neither argument has merit.

A.Plaintiffs have standing to bring their claims before this Court.

1.Plaintiffs have standing under the Declaratory Judgment Act.

Pursuant to N.C.G.S. § 1-253, North Carolina courts "shall have power to declare rights, status, and other legal relations, whether or not further relief could be claimed." "[J]urisdiction under the Declaratory Judgment Act may be invoked . . . in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute." State ex rel. Edmisten v. Tucker, 312 N.C. 326, 337-38, 323 S.E.2d 294, 302-03 (1984). Government action "will be declared unconstitutional and its enforcement will be enjoined when it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees." Jernigan v. State of North Carolina, 279 N.C. 556, 562, 184 S.E.2d 259, 264 (1971) (citations omitted); Carter v. Stanly County, 125 N.C. App. 628, 482 S.E.2d 9 (1997). A showing that a party is in "danger of sustaining injury" is sufficient to confer standing for the purposes of a declaratory judgment action. Grace Baptist Church, 320 N.C. at 444, 358 S.E.2d at 375. The instant plaintiffs have exhaustively pled past, present, and impending injury to their fundamental constitutional rights.

Standing under Art. III of the United States Constitution is not required for a declaratory judgment action before North Carolina courts. "[J]urisdiction within the state courts of North Carolina is not controlled by . . . federal decisions but is determined by our own statutes and court decisions." Sharpe v. Park Newspapers, Inc., 317 N.C. 579, 584, 347 S.E.2d 25, 30 (1986). Defendants cite Judge Wynn’s ‘concurrence’ in a Court of Appeals decision, Transcontinental Gas Pipe Line Corp. v. Calco Enterprises, 132 N.C. App. 237, 246, 511 S.E.2d 671, 678 (1999), for the proposition that plaintiffs must have federal Art. III. standing to satisfy the Declaratory Judgment Act’s ‘actual controversy’ requirement. Def. Mem. at 4. This claim is doubly incorrect because: 1) Judge Wynn’s concurrence is, in fact, a dissent on the standing issue; and 2) Transcontinental Gas did not involve the Declaratory Judgment Act. "[I]t is not necessary that one party have an actual right of action against another to satisfy the jurisdictional requirement of an actual controversy" under the Declaratory Judgment Act, though "it is necessary that the litigation appear unavoidable." Gaston Bd. of Realtors, 311 N.C. at 234, 316 S.E.2d at 61 (citing North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974)).

The posture of the instant plaintiffs is identical to the posture of the plaintiffs in another declaratory judgment action -- Leandro v. State, 346 N.C. 336, 354, 488 S.E.2d 249, 259 (1997) (interpreting the state Constitution to require the General Assembly to provide "every child in the state . . . equal access to a sound basic education"). As in Leandro, plaintiffs call on the Court to exercise its "duty" as the "final authority in interpreting" the Constitution of North Carolina to determine what qualitative guarantees of political participation arise from a number of related constitutional provisions. Id. at 345, 259; see Am. Compl. at ¶¶ 31-37. As in Leandro, plaintiffs seek a declaration that the State has failed to live up to the affirmative duties imposed upon it by the Constitution. As in Leandro, plaintiffs are injured by the State’s failure to provide adequate funding to support a fundamental governmental function and, accordingly, seek a judicial order that the failure to adequately fund this basic function must be remedied by the General Assembly. Just as the Leandro plaintiffs had standing to bring their case, so too do the instant plaintiffs.

2.Plaintiffs have standing under the general principles of North Carolina law.

In North Carolina, persons "who have been injuriously affected . . . in their persons, property or constitutional rights" have standing to challenge the validity of the state’s actions or omissions. Dunn v. Pate, 334 N.C. 115, 119, 431 S.E.2d 178, 180 (1993) (quoting Canteen Service v. Johnson, 256 N.C. 155, 166, 123 S.E.2d 582, 589 (1962) and citing Baker v. Carr, 369 U.S. 186 (1962)); Armstrong v. Armstrong, 322 N.C. 396, 400, 368 S.E.2d 595, 597 (1988) ("the essence of the concept of standing is that no person is entitled to assail the constitutionality of a law or act unless it affects that person adversely"); Maines v. City of Greensboro, 300 N.C. 126, 265 S.E.2d 155 (1980). "The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentations of issues upon which the court so largely depends for illumination of difficult constitutional questions." Id. 334 N.C. at 120, 431 S.E.2d at 181 (quoting Stanley, Edwards, Henderson v. Dep’t. of Conservation and Development, 284 N.C. 15, 27, 199 S.E.2d 641, 650 (1973) (internal citation omitted)). Notably, in overruling Murphy v. Davis, 61 N.C. App. 597, 300 S.E.2d 871, cert. denied & appeal dismissed, 309 N.C. 192, 305 S.E.2d 735 (1983), the Dunn Court repudiated the notion that state regulation does not give rise to cognizable injury when that regulation’s discriminatory force is brought into play by the actions of third parties. Dunn, 334 N.C. at 119, 431 S.E.2d at 181.

As non-wealthy citizens, plaintiffs lack access to the sums of money necessary to mount or support viable campaigns for legislative office and thus cannot participate in an integral part of the electoral process. Am. Compl. at ¶¶ 96-120. Amassing a substantial amount of money has become a prerequisite to meaningful participation in the electoral process for General Assembly seats. Am. Compl. at ¶¶ 69-78. Candidate-plaintiffs are unable to spread their electoral message for want of adequate funding. Am. Compl. at ¶¶ 96, 97, 100-102. Despite their qualifications and substantial grassroots support, none had any meaningful opportunity to compete for office. Id.; see also Am. Compl. at ¶¶ 60-65. Prospective candidates would run for office but for the monetary barrier posed by the wealth primary. Am. Compl. at ¶¶ 99, 104. Candidate-plaintiffs have thus alleged a substantial injury to their right to stand for office.[27]

Non-wealthy voter-plaintiffs lack the financial resources sufficient to support a viable candidate for office. Am. Compl. at ¶¶ 98, 103, 105-107, 108-114. Because the wealth primary systematically prevents low-income candidates from mounting viable campaigns, voter-plaintiffs face perennial difficulty identifying candidates on the ballot who will represent their interests. Am. Compl. at ¶¶ 98, 103, 105-107, see also ¶¶ 108-114. Thus, individual voter-plaintiffs, and the non-wealthy voters represented by the seven organizational plaintiffs, suffer a substantial debasement of their vote. The wealth primary consistently degrades all plaintiffs’ influence on the political process as a whole, undermines the meaning of their vote, and renders North Carolina’s non-wealthy citizens underrepresented in the legislature. Am. Compl. at ¶¶ 96-114.

Standing before the courts of the State of North Carolina is not identical to, nor controlled by, the rules of standing before the courts of the United States. See Sharpe, supra; Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 469-71, 515 S.E.2d 675, 689-90 (1999); Exum, supra at p. 30. Unlike its federal counterpart, the Superior Court of North Carolina, is a court of general, common law jurisdiction, free from the limitations of federalism. Notably, North Carolina courts support standing where the federal courts do not, most prominently in the area of taxpayer standing. See, e.g., McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961); Stanley v. Dep’t. of Conservation, 284 N.C. 15, 199 S.E.2d 641 (1973); Martin v. North Carolina Housing Corp., 277 N.C. 29, 175 S.E.2d 655 (1970). The courts of North Carolina are also subject to the "Open Courts" requirement of Art. I, § 18 of the North Carolina Constitution, under which they "cannot fail to provide a forum to determine a valid cause of action." Coman v. Thomas Manufacturing Co., 325 N.C. 172, 174, 381 S.E.2d 445, 446 (1989); see also Corum, 330 N.C. at 782, 413 S.E.2d at 289 (supporting actions against the state because "it is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens").

The North Carolina cases cited by defendants either support plaintiffs’ standing or are wholly inapposite. See, e.g., Grace Baptist Church (imminent injury confers standing); State ex rel. Edmisten v. Tucker (no standing if no adversity of interests between the parties); Dunn (deprivation of property by operation of statute confers standing); Andrews v. Alamance County, 132 N.C. App. 811, 513 S.E.2d 349 (1999) (land use dispute not ripe); Union Grove Milling and Manufacturing Co. v. Faw, 109 N.C. App. 248, 426 S.E.2d 476 (1993) (judgment creditor has no standing to bring action against defaulting bidder). Baker v. Martin provides direct authority for the instant plaintiffs’ standing. A person not considered eligible for nomination to judicial office on account of his party affiliation showed sufficient injury to support standing. 330 N.C. 331, 410 S.E.2d 887 (1991). The instant candidate and prospective candidate-plaintiffs have alleged that they are not considered eligible for office on account of their economic status and personal associations. Am. Compl. at ¶¶ 96, 97, 99-102, 104, 122-128. Even persons complaining of "long lines" at polling stations have standing to seek judicial relief. Dem. Party of Guilford County v. Bd. of Elections, 342 N.C. 856, 859, 467 S.E.2d 681, 683 (1996). All of the remaining cases cited by defendants address the question of standing before the courts of the United States of America, which is constrained by the requirements of Article III of the United States Constitution.

Courts must look to scope of the interests allegedly violated to determine a party’s standing. See, e.g., Flast v. Cohen, 392 U.S. 83, 102 (1968) ("in ruling on standing, it is both appropriate and necessary to look to the substantive issues [to] determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated . . . to assure that [the litigant] is a proper and appropriate party to invoke . . . judicial power.") Thus, this Court must look to the source of the substantive rights at stake in the present case -- the North Carolina Constitution -- when assessing whether the plaintiffs are injured. The only question properly before this Court, accordingly, is whether the litigants have alleged a personal injury of rights guaranteed to them by the North Carolina Constitution in Article I, §§ 2, 8, 10, 11, 12, 13, 19, 32, Article II §§ 6 and 7, and Article VI § 6.

A long line of federal decisions supports the standing of voters who allege the debasement or dilution of their vote, even when no one has prevented them from casting a ballot. Terry. v Adams, 345 U.S. 461 (1953); Baker v. Carr, 369 U.S. 186 (1962); Wesberry v. Sanders, 376 U.S. 1 (1963); Reynolds v. Sims, 377 U.S. 533 (1964); Davis v. Bandemer, 478 U.S. 109 (1986); see also Gray v. Sanders, 372 U.S. 368, 375 (1963) ("appellee, like any person whose right to vote is impaired . . . has standing to sue.") A recent federal case arising out of North Carolina pointedly supports the instant plaintiffs’ standing to press their claims. In Uzzell v. Friday, two students at U.N.C. established their standing to contest the rules governing eligibility for the Undergraduate Court at Chapel Hill because they had been denied "the opportunity to compete evenly with other members of the student body of UNC . . . for the appointive seats on the Council . . . when they are otherwise eligible to be considered for such appointment." 592 F. Supp. 1502, 1514 (E.D.N.C. 1984). [28]

Defendants’ reliance on three federal cases challenging aspects of the wealth primary in other jurisdictions is misplaced.[29] For three obvious reasons, those cases do not defeat plaintiffs’ standing before this court. First, plaintiffs bring these claims before the courts of North Carolina, not the federal courts. Accordingly, all issues, including standing, must be decided pursuant to the laws of North Carolina. Second, the federal cases cited by defendants were decided under the 1st and 14th Amendment of the United States Constitution. The instant case, by contrast, involves six distinct claims brought under various provisions of the state constitution, five of which have no federal analogue.[30] Third, the provisions of the North Carolina Constitution relied upon by plaintiffs, unlike the federal Constitution, are positive guarantees of rights that place an affirmative duty on defendants to establish free and fair elections in which, inter alia, "no property qualification shall affect the right to vote or hold office." Art. I, § 11. In sum, no court has ever addressed the violations of North Carolina constitutional rights alleged in the instant plaintiffs’ complaint.

Further, in each of the three federal cases cited by defendants, the court misstated the nature of the injury alleged and relief claimed by plaintiffs. In Jones, the court wrongly concluded that plaintiffs were asserting a right to "have equal access in the campaign process." Jones, 131 F.3d at 1324. Similarly, in Cox, the court wrongly wrote that plaintiffs pursued a "right to equal influence in the overall election process." Cox, 183 F.3d at 1263. In Albanese, the district court assumed that "plaintiffs’ goal is to eliminate the contribution of private funds to politicians and thereby level the electoral playing field". Albanese, 884 F. Supp. at 693. Plaintiffs do not assert any of these rights or seek any of these remedies. Plaintiffs have instead alleged that the wealth primary erects a substantial barrier to their meaningful participation in electoral politics, necessitating a remedy that will raise the floor of opportunity to engage meaningfully in electoral competition. The remedy plaintiffs request -- a voluntary system of public financing -- would not in any case achieve the misstated goals rejected by the courts in Cox, Albanese, and Jones.

Further, the three federal cases cited by defendants all founder on a common, plain error of law, namely a misreading of the holding in Terry v. Adams, 345 U.S. 461 (1953). The courts in these cases attempted to distinguish Terry by asserting that African-Americans were denied the right to cast ballots or nominate candidates in the Democratic primary or general elections. A plain review of Terry reveals that this conclusion is clearly erroneous: no one in Terry was denied the ability to cast a ballot in any primary or general election.

As the district court decision in Terry made clear, the Jaybird Association did not certify the candidates it endorsed to state or party authorities. Terry v. Adams, 90 F. Supp. 595, 598 (S.D. Tex. 1950). Candidates endorsed by the Jaybirds had to file their own applications for a place on the ballot used in the Democratic primary, like every other candidate. Id. As the Jaybird's president noted at trial, absolutely nothing prevented African-Americans from nominating and voting for their preferred candidate in the Democratic primary and general election. 345 U.S. at 464-65.[31] Despite these facts, eight justices agreed that the federal Constitution will not countenance a state election system in which exclusionary private conduct has a controlling influence over the electoral process.[32] Contrary to the mischaracterization of the court in Georgia State Conf. of NAACP v. Cox, there simply was no state involvement in the discriminatory candidate selection process struck down in Terry. Compare Cox,183 F.3d at 1263 ("In Terry, the combined actions of private and public participants violated the Constitution") with Adams v. Terry, 193 F.2d 600 (5th Cir. 1952) ("the Jaybird Democratic Association does not in any way or manner operate as a part or parcel of, or in liaison with, state political or elective machinery"). In Terry, a discrete group of citizens pre-selected candidates by ‘voting’ in an entirely private ‘Jaybird primary’; in North Carolina today, a discrete group of citizens with access to wealth pre-select candidates by ‘voting’ with their checkbooks in the ‘wealth primary’. As in Terry, plaintiffs’ exclusion from that integral part of the electoral process establishes their standing to seek judicial relief.

B. Plaintiffs’ claims do not raise a non-justiciable ‘political question’.

In North Carolina, the "Constitution is the Supreme Law." State v. Knight, 169 N.C. 133, 351, 85 S.E.2d 418, 427 (1915). "When the constitutionality of an act of the General Assembly is questioned," the courts are "under the obligation, if there is irreconcilable conflict, to sustain the will of the people as expressed in the Constitution, and not the will of the legislators, who are but agents of the people." Id.; see also In re Watson, 157 N.C. 340, 72 S.E. 1049 (1911). North Carolina’s strong policy of judicial review was recently affirmed in Leandro v. State, 346 N.C. 336; 488 S.E.2d 249 (1997). In Leandro, the state supreme court, specifically addressing an assertion that plaintiff's claim was a "political question", noted simply that "it is the duty of the courts to determine the meaning of the requirements of our Constitution" and that "[w]hen a government action is challenged as unconstitutional, the courts have a duty to determine whether that action exceeds constitutional limits". 346 N.C. at 345. The "mere expediency of legislation is a matter for the Legislature, when it is acting entirely within constitutional limitations, but whether it is so acting is a matter for the courts." State v. Warren, 252 N.C. 690, 696, 114 S.E.2d 660, 666 (1960) (citations omitted).

The fact that the Constitution vests the General Assembly with legislative powers has never prevented this Court from determining whether those powers have been exercised consistent with the Constitution. Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787); State ex rel. Abbott v. Beddingfield, 125 N.C. 256, 34 S.E. 412 (1899); Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781 (1936); State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987); Leandro. There can be no serious question of this Court’s power and duty to review the constitutionality of elections regulated, conducted, and ratified by the General Assembly through its agent the Board of Elections. If the court lacked such power, the legislature would be free to privatize elections, provide funds to some candidates and not to others, re-instigate poll taxes, filing fees and literacy tests, and thereby destroy democracy in North Carolina. In fact, North Carolina courts have consistently performed judicial review of alleged qualifications on the right to vote and hold office. See, e.g. Moore, 331 N.C. at 5, 413 S.E.2d at 543.

McLean v. Durham County Bd. of Elections, 222 N.C. 6, 21 S.E.2d 842 (1942), does not support defendants’ "political question" argument. In fact, that decision confirmed the propriety of judicial review over elections by noting that any electoral regulations must be "reasonable" and apply "no unjust discrimination". 222 N.C. at 10, 21 S.E.2d at 845. More importantly, one aspect of the court’s decision in McLean (the approval of filing fees) was effectively overruled as unconstitutional, through the very same process of judicial review invoked by the instant plaintiffs. See Brown v. State, 394 F. Supp. 359 (1975) (declaring North Carolina’s filing fee statute unconstitutional pursuant to Supreme Court’s decisions in Bullock and Lubin). Defendants’ reliance on Norfolk Southern Railway Co. v. Washington County, 152 N.C. 333, 70 S.E. 634 (1911) is likewise wholly without merit. Norfolk involved the determination of a boundary line between counties. No constitutional provision was in question and the case is plainly irrelevant.

Cases challenging the adequacy of representation in state legislatures on equal protection grounds are clearly justiciable in the federal courts. Baker v. Carr, 369 U.S. 186, 217 (1962); Reynolds v. Sims, 377 U.S. 533, 565-66 (1964); Davis v. Bandemer, 478 U.S. 123, 124 (1986) (plurality). The Supreme Court has repeatedly admonished courts not to abdicate their responsibility to guard the fairness of the electoral system. See, e.g., Williams v. Rhodes, 393 U.S. 23, 34 (1968). Defendants cannot defeat the vindication of constitutional rights merely by asserting that courts are powerless to act:

We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. . . . We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.

Reynolds v. Sims, 377 U.S. at 566; see also Smith v. Boyle, 144 F.3d 1060, 1063 (7th Cir. 1998) ("Judicial reluctance to enter the political thicket of state electoral systems was overcome many years ago").

Defendants concede a major fact supporting the justiciability of plaintiffs’ claims. A primary rationale for the justiciability of threats to the fairness of the electoral process, as established first in Baker v. Carr, is the fact that legislators elected under a defective system have no incentive to remedy the unconstitutional electoral arrangements from which they benefit. By conceding that "[f]or years, our legislature has grappled with [the] issue [of public financing]" (Def. Mem. at 1), defendants highlight that the existing legislature, like the beneficiaries of a political gerrymander, have demonstrated their unwillingness to bite the monied hand that feeds them. As in Baker v. Carr and Reynolds v. Sims, resort to the normal political process is futile. See, generally, Note, The Illegitimacy of the Incumbent Gerrymander, 74 Tex. L. Rev. 913 (1996). The laws "must never be viewed with more caution than when they provide immunity from their own correction in the political process . . ." Nixon v. Shrink Missouri Gov’t PAC, 120 S. Ct. at 915 (Kennedy, J., dissenting); see also United States v. Carolene Prods. Co., 302 U.S. 144, 152 n.4 (1938) ("legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny").

Defendants incorrectly assert that there are no satisfactory criteria or manageable standards "for this or any other court to employ in determining whether government should fund campaigns, and, if so, how much is sufficient to satisfy the goals sought to be accomplished." Def. Mem. at 11. With respect to the first issue ("whether government should fund campaigns"), plaintiffs have exhaustively alleged: 1) the factual existence of a barrier to meaningful political participation in the form of a wealth qualification on the rights to vote and hold office; 2) the Constitution’s unequivocal prohibition of such barriers; and 3) the availability of remedies to remove such barriers. Am. Compl. at ¶¶ 31-37, 38-95; infra, at 60-61. Further, plaintiffs have provided ample legal authority for the Court to conclude either: 1) that the North Carolina Constitution places an affirmative duty on the State to ensure that none of its citizens are subject to a wealth qualification on the right to vote and hold office; or 2) that the caselaw of North Carolina and the United States prohibits defendants from conducting elections in which such a qualification obtains. Accordingly, there can be no question of the existence of criteria to establish the necessity of the relief requested.

With respect to defendants’ second concern ("how much is sufficient to satisfy the goals sought to be accomplished"), this Court may easily articulate a judicially manageable standard, in the spirit of "one person, one vote", to the effect that all qualified citizens must enjoy a minimally adequate opportunity to stand for office.[33] To realize this standard, the court would require that the General Assembly devise a system of voluntary public funding at levels adequate to permit candidates to run a viable, meaningful campaign. Am. Compl. at 46 ("Prayer for Relief"). Such funding would be provided to candidates who can demonstrate a base of public support through signature requirements or otherwise. The appropriate minimal funding levels would be determined based on the factual record made at trial concerning the costs of running a viable campaign in North Carolina. Plaintiffs have suggested the amounts of funding that would be ‘adequate’ by presenting tables reflecting the median sums historically needed to mount viable campaigns. Am. Compl. at ¶¶ 46, 49. Voluntary public financing systems adopted in other states also serve as possible blueprints of for the adequate remedy to be devised by General Assembly.[34]

Such a remedy is similar in structure to those imposed by the federal courts to assure indigents’ access to the justice system. See Gideon v. Wainwright, 372 U.S. 335 (1963) (right to state-provided counsel in criminal case); M.L.B v. S.L.J., 519 U.S. 102 (1996) (right to state-provided transcript for appeal in civil parental status termination case). Under these precedents, non-wealthy litigants are not guaranteed precisely the same resources as may be available to wealthy litigants, but they are guaranteed a floor of state funding necessary to assure "meaningful access" to the justice system. Ross v. Moffitt, 417 U.S. 600, 616 (1974).[35] Similarly, without requiring the state to equalize the funding available to all candidates, public funding would set a floor to allow meaningful access to the political process for non-wealthy voters and candidates.

Defendants’ argument ultimately devolves into misrepresentation of the relief sought by plaintiffs. Plaintiffs do not seek to ensure that "each candidate has more money than any other candidate" [sic] or that "each candidate will have exactly the same amount of money as his opponents". Def. Mem. at 11. Instead, they seek a voluntary public financing option that will raise the floor of political opportunity for non-wealthy candidates and free principled candidates from the burden of violating their consciences by having to solicit money from monied interests who seek to influence legislation or from persons whose beliefs do not coincide with the candidate’s. Plaintiffs do not seek "the right to equal influence in the overall election process". Def. Mem. at 7 (quoting Cox, 183 F.3d at 1263). Rather, they seek the removal of a wealth barrier that presently destroys their right to meaningful participation in an integral aspect of General Assembly elections.

Under North Carolina law, plaintiffs need not specify the exact outlines of the remedy for the constitutional violations they allege. See, e.g., Corum, 413 S.E.2d at 290-91 ("[w]hat that remedy will require, if plaintiff is successful at trial, will depend upon the facts of the case developed at trial."). Moreover, in actions under the Declaratory Judgment Act, courts of record "shall have power to declare rights, status, and other legal relations, whether or not further relief could be claimed." N.C.G.S. § 1-253 (emphasis added). This court has both the power and "the duty . . . to enter a judgment granting declaratory relief and such other relief as needed to correct the wrong." Leandro v. State, 346 N.C. at 357, 488 S.E.2d at 261. Once the court enters a declaratory judgment that the current wealth primary process is unconstitutional, as requested in plaintiffs’ prayer for relief, the state itself will have the first opportunity to devise a remedy for the constitutional violations, as is true in other cases involving the legality of a state’s electoral process. See Wise v. Lipscomb, 437 U.S. 535 (1978). Only if the state refuses to act in response to the finding of unconstitutionality, or adopts a remedial scheme that is itself unlawful, would the Court face the obligation of fashioning appropriate relief itself. Id.; see also Leandro, 346 N.C. at 357, 488 S.E.2d at 261.

III.PLAINTIFFS HAVE ALLEGED CLAIMS AGAINST THE BOARD OF ELECTIONS AND THE STATE OF NORTH CAROLINA.

Defendants’ claim that "Plaintiffs have alleged no claims against defendant State Board of Elections" (hereinafter, "BOE") is flatly contradicted by the Amended Complaint and a review of the BOE’s statutory duties. The BOE not only implements and supervises the election laws adopted by the General Assembly, but also makes "such reasonable rules and regulations" as are necessary to effect the fair elections envisioned by the Constitution. N.C.G.S. § 163.22. The BOE thus gives effect to plaintiffs’ injuries.

Furthermore, under N.C.G.S. § 163-22(i), the BOE "shall make recommendations to the Governor and Legislature relative to the conduct and administration of primaries and elections." The BOE’s conduct, in implementing and ratifying the results of the wealth primary, and also in failing to remedy or communicate the necessity of a remedy to the Governor and Legislature, gives rise to plaintiffs’ injuries. Accordingly, all plaintiffs’ claims lie equally against the BOE. Plaintiffs need not allege, as defendants suggest, that the BOE "has acted contrary to election laws" in order to maintain this action. In fact, defendants’ position starkly contradicts its own intervention in a recent case challenging the constitutionality of an election regulation. See Moore v. Knightdale Bd. of Elections, 331 N.C. 1, 413 S.E.2d 541 (1992). In Moore, a local Board of Elections acted entirely in accordance with a statute, adopted by the General Assembly, that imposed an unconstitutional qualification for election to office. As in the instant matter, the Board of Elections in Moore did not itself have the authority to remedy the unconstitutional election regulation in question, yet the Board of Elections deemed itself a proper party to that litigation. As the agency directly responsible for implementing the State’s discriminatory policies, the BOE is a proper and necessary defendant in this action. Because the relief devised by this Court could involve injunctive relief enjoining the enforcement of election-related statutes that augment the unconstitutional effects of the wealth primary, the plaintiffs have indeed alleged causes of action against the BOE.

IV.PLAINTIFFS’ REQUEST FOR AN AWARD OF ATTORNEYS’ FEES SHOULD NOT BE DISMISSED.

North Carolina decisions recognize that prevailing plaintiffs who enforce fundamental constitutional rights are acting as "private attorneys general" to benefit all citizens, and are therefore entitled to fees. For example, Judge Larkin acknowledged such a claim in a case involving the President and the Chairman of the Board of Trustees of East Carolina University:

These plaintiffs’ rights of freedom of speech and expression are constitutionally protected. ... An allowance of counsel fees in this instance is not meant to penalize the State, but is to encourage individuals who are held to be unjustly injured by denial of their constitutional rights to seek judicial relief.

Thonen v. Jenkins, 374 F. Supp. 134, 139 (E.D.N.C. 1974), aff’d in part 517 F.2d 374 (4th Cir. 1975).

A similar theory was also applied by a three judge federal court to the award of fees in a case much more akin to this action. Sims v. Wallace, 340 F. Supp. 691 (N.D. Ala.), aff’d 409 U.S. 942 (1972). There the plaintiffs asserted claims under the Fourteenth and Fifteenth Amendments for disenfranchisement and denial of equal suffrage. In awarding fees to the plaintiffs as "private attorneys general", the court relied upon the fundamental nature of the rights at stake.

The benefit accruing to plaintiffs’ class from prosecution of this suit cannot be overemphasized. No other right is more basic to the integrity of our democratic society than is the right plaintiffs assert here to free and equal suffrage.

Id. at 694. The court also noted that in spite of the fundamental values sought to be protected in the action, and the significant benefit to society from the prosecution of the action, it was still a case that most private individuals would not be likely to initiate, at least in part because of the significant costs involved and the fact that it was unlikely that a substantial damage award would ever be recovered in such a case. As the court observed, this "...necessarily means that someone --- plaintiff or lawyer --- must make a great sacrifice unless equity intervenes." Id. at 695 (quoting Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D.Va. 1971)). Very similar circumstances apply to the present case, and plaintiffs here should similarly be entitled to an award of fees to effectuate the fundamental rights under the North Carolina Constitution that are at issue.[36]

The two cases relied upon by defendants, Nucor Corp. V. General Bearing Corp., 333 N.C. 148, 423 S.E.2d 747 (1992), and Stillwell Enterprises, Inc. v. Interstate Equipment Co., 300 N.C. 286, 266 S.E.2d 812 (1980), are wholly inapposite, because both address actions between private parties. Nucor involved the enforcement of an arbitration award, requiring the interpretation of the arbitration agreement to determine whether or not the arbitrator had the authority to award fees. Similarly, Stillwell involved a determination of the validity of a private contractual provision for an award of fees. Constitutional issues of broad benefit to the citizens of our state were not raised in either case. Neither case is applicable to the matters before this Court.

As noted in Corum, "[i]t is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens". 413 S.E.2d at 290. Addressing the remedies that may be available to plaintiffs who prevail on constitutional claims, the Court made clear that the remedies would depend on the rights that are implicated: "[v]arious rights that are protected by our Declaration of Rights may require greater or lesser relief to rectify the violation of such rights, depending upon the right violated and the facts of the particular case." Id. Given that the rights asserted in this action are some of the most fundamental to North Carolina democracy, and that there will be no award of damages from which fees and costs might be recovered, an award of fees is necessary and proper under Corum to protect and effectuate the fundamental rights at issue.

Those provisions of the Constitution that address the basic architecture of democracy and its pre-requisites must be interpreted in light of our evolved understandings of the equality and dignity of all people. The present Constitution of North Carolina was adopted in 1971, by modern people with modern aspirations and intentions regarding of the full meaning of democracy. Courts have a duty to recognize changing circumstances that threaten the continued exercise of citizens' basic constitutional rights as well as a corollary duty to consider how changed circumstances may alter the scope of those rights:

[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.

Harper v. Virginia Board of Elections, 383 U.S. 663, 669 (1966) (emphasis in original); see also Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992) ("In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations"); Trop v. Dulles, 356 U.S. 86 (1958) (evolving standards of what constitutes ‘cruel and unusual punishment’). The North Carolina Constitution’s Declaration of Rights embodies this very principle, stating that "[a] frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty". Art. I, § 35.

Plaintiffs respectfully ask the Court to take a realistic look at the changed circumstances of electoral politics in North Carolina, with particular attention to the fact that access to wealth has become a prerequisite to meaningful participation. Plaintiffs' complaint exhaustively alleges non-wealthy citizens' vanishing opportunities in North Carolina politics and consequent lack of meaningful representation in government. Given the breadth of their allegations documenting quantifiable political marginalization, the specificity of the relevant provisions of the North Carolina Constitution, and the gravity of the fundamental rights abridged, plaintiffs clearly have stated six separate causes of action and have alleged injuries sufficient to confer standing. They deserve to be heard on the merits.

CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that Defendants’ Motion to Dismiss be denied.

James G. Exum, Jr.
N.C. State Bar # 1392

SMITH HELMS MULLISS & MOORE, L.L.P.
300 N. Greene Street, Suite 1400
Greensboro, N.C. 27401
Telephone: (336) 378-5200

Gregory Luke *
John C. Bonifaz *
Brenda Wright *
Bonita Tenneriello *

NATIONAL VOTING RIGHTS INSTITUTE
294 Washington Street, Suite 713
Boston, MA 02108
Telephone: (617) 368-9100

Harry C. Martin
N.C. State Bar # 2890

1 Hilltop Road
Asheville, NC 28803-3017
Telephone: (828) 274-4633

Adam Stein
N.C. State Bar # 4145

FERGUSON, STEIN, WALLAS, ADKINS GRESHAM & SUMTER, PA
312 West Franklin Street
Chapel Hill, North Carolina 27516
Telephone: (919) 933-5300

COUNSEL FOR: Edwin Booth, Ed Carter, Gary Grant, Aileen Ford, William Harper, Mary Jo Loftin, Daniel Mallison, Gary Phillips, Randy B. Royal, Daniel J. Willis, North Carolina State Conference of NAACP Branches, North Carolina Fair Share, Concerned Citizens of Tillery, North Carolina Alliance for Democracy, North Carolina Waste Awareness Reduction Network, Citizens for Responsible Government of Guilford County, and North Carolina Consumers Council.

Lewis Pitts
N.C. State Bar # 20592

MENTAL HEALTH UNIT, LEGAL SERVICES OF NORTH CAROLINA
224 S. Dawson St.
Raleigh, N. C. 27611
Telephone: (919) 856-2121

COUNSEL FOR: Fannie Walden

* Appearing Pro Hac Vice.

FOOTNOTES

[1] Notably, candidates Harper and Loftin, along with prospective candidate Phillips, refuse as a matter of conscience to solicit donations from wealthy persons or businesses, on the verifiable belief that such contributions raise the specter of corruption and improper influence. Am. Compl. at ¶¶ 100-101, 104. On account of this deeply held conviction, the wealth primary prevented Harper, Loftin, and Phillips from mounting viable, competitive campaigns. Id.

[2] Compare Nixon v. Shrink Missouri Gov't PAC, 120 S. Ct. 897, 145 L. Ed. 2d 886, 2000 U.S. LEXIS 826 (2000) ("Leave the perception of impropriety unanswered, and the . . . assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.").

[3] In Forbis, the court relied on "well settled" doctrines to conclude that particular listing agreement did not vest authority in a real estate agent to enter binding contracts with third parties. Forbis v. Honeycutt, 301 N.C. 699, 703, 273 S.E.2d 240, 242 (1981). In Perry, the court relied on the clear terms of a "controlling statute" and directly adverse caselaw to reject plaintiff's claims. Perry v. Carolina Builders Corp., 128 N.C. App. 143, 148, 493 S.E.2d 814, 817 (1997). Unlike the instant litigation, in neither of these cases did the respective plaintiffs identify any authority to support their claims.

[4] See also Def. Mem. at 27 ("nothing about North Carolina's failure to provide public funding for legislative elections prevents plaintiffs from running for office, associating with voters or candidates of their choosing").

[5] "In interpreting our Constitution . . . where the meaning is clear from the words used, we will not search for a meaning elsewhere." State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 352, 360 (1990) (citing Elliott v. Board of Equalization, 203 N.C. 749, 753, 166 S.E. 918, 920 (1932)).

[6] The North Carolina courts have suggested that considerations of "public policy" must be weighed when analyzing whether or not a party has stated a cause of action. See, e.g., Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (defining "public policy" as "the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good"). Clearly, the wealth primary in North Carolina injures the public good by undermining the political rights of moderate and low-income citizens, giving rise to a cause of action to vindicate those rights.

[7] Though the Court acknowledged that there would undoubtedly be anomalous "candidates representing the views of voters of modest means who are able to pay the required fee", it concluded that "we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status." Bullock, 405 U.S. at 144.

[8] See Minority Report of the Committee on Suffrage § 3, reprinted in NORTH-CAROLINA STANDARD (Raleigh), Feb. 21, 1868.

[9] See, e.g. Speech of John. R. French, in NORTH-CAROLINA STANDARD (Raleigh), Feb. 19, 1868, at 2; Speech of Mr. King, in NORTH-CAROLINA STANDARD (Raleigh), Feb. 20, 1868, at 3; Speech of C.C. Pool, Esq., in NORTH-CAROLINA STANDARD (Raleigh), Feb. 21, 1868, at 2.

[10] Speech of C.C. Pool, Esq., supra note 9, at 2.

[11] Speech of John. R. French, supra note 9, at 2.

[12] See Speech of C.C. Pool, Esq., supra note 9, at 2.

[13] This position finds further textual support in the fact that the express phrase "by the State" appears in Art. I, § 19 (equal protection) but is entirely absent from Art. I, § 11. Had the people intended to limit the reach of Art. I, §11 with a state action requirement, they would have done so explicitly.

[14] Defendants wrongly urge the Court to avoid any interpretation of the North Carolina Constitution which reads provisions of that document as parts of a connected whole. Def. Mem. at 3. In the Preamble to their Constitution, the people of North Carolina announced that the primary and ultimate aim of that document was to "recognize[ ] and establish[ ]" the "great, general, and essential principles of liberty and free government.". N.C. CONST. PREAMBLE. "In searching for the [will of the people] or intent all cognate provisions are to be brought into view in their entirety and so interpreted as to effectuate the manifest purposes of the [Constitution]." Preston, 325 N.C. at 449 (quoting State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944)).

[15] An entire article of the Constitution is devoted to suffrage and electoral qualifications. N.C. Const. Art. VI. Additionally, elections are explicitly referenced in six sections of the Declaration of Rights (N.C. Const. Art. I, §§ 2, 3, 8, 9, 10, 11), as well as nine sections of Art. II, three sections of Art. III, four sections of Art. IV, one section of Art. VII, all four sections of Art. XIII, and one section of Art. XIV.

[16] Protection of the fundamental right to vote on equal terms extends beyond the mere act of casting a ballot on election day; the right is necessarily implicated in all integral aspects of the election process, including candidate-selection primaries, qualifications for voters and candidates, qualifications for new political parties, districting, and ballot access regulations. See, e.g., Preston; Bailey; White; Penny; State v. Cole, 156 N.C. 618, 619, 72 S.E. 221, 222 (1911); Moore; States' Right Democratic Party; Chaplin; Crump v. Snead, 517 S.E.2d 384, 1999 N.C. App. LEXIS 760 (1999).

[17] Numerous federal cases support the conclusion that plaintiffs suffer a cognizable injury to their equal protection rights. In partisan gerrymandering cases, for example, the Equal Protection Clause is violated "where a history (actual or projected) of disproportionate [electoral] results appears" in combination with "strong indicia of lack of political power and the denial of fair representation". Davis v. Bandemer, 478 U.S. 123, 139 (1986) (plurality). Plaintiffs have alleged that both of these circumstances obtain in North Carolina legislative elections. Am. Compl. at ¶¶ 53-59, 95-128. "[U]nconstitutional discrimination occurs . . . when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole." Republican Party of North Carlonia v. Martin, 980 F.2d 943, 957 (4th Cir. 1992) (citing Bandemer). Another federal court has defined exclusion from "the political process as a whole" as interference in "the registration, organizing, voting, fund-raising or campaigning" of the purportedly disadvantaged group. Badham v. March Fong Eu, 694 F. Supp. 664, 670 (N.D. Cal. 1988), aff'd mem., 488 U.S. 1024 (1989) (emphasis added). Notably, in Republican Party, the Fourth Circuit found evidence of the denial of fair representation in "data demonstrat[ing] that few Republicans will offer to run since the chance of success is almost nonexistent" and in "the method of elect[ions] . . . [which] diminishes campaign contributions for these elections because potential contributors are unwilling to donate money or other resources to a candidate who is perceived to be an almost certain loser". Id. The injurious effect described here is identical to that alleged by plaintiffs, where 'almost certain losers' cannot garner support from those who would otherwise offer it. See, e.g., Am. Compl. at ¶ 65.

[18] Though the Court must apply strict scrutiny to the violation of fundamental rights alleged by plaintiffs, even if the Court were to apply the 'rational basis' test, defendants can not argue that the wealth primary they impose "bears any rational relationship to a legitimate governmental objective." Rosie J. v. North Carolina Dep't. of Human Resources, 347 N.C. 247, 251, 491 S.E.2d 535, 537 (1997) (citation omitted). It strains logic and credulity to assert any legitimacy in the State preventing low and modest income citizens from full and meaningful participation in the electoral process.

[19] North Carolina courts have also endorsed the holding in Shelley v. Kramer, 334 U.S. 1 (1947), which recognized that state enforcement of substantive common law rules which are impermissibly discriminatory constitutes state action inconsistent with the equal protection clause. Perry v. Perry, 80 N.C. App. 169, 173, 341 S.E.2d 53, 56 (1986). Analogously, North Carolina's enforcement and ratification of the wealth primary provides an alternative basis for whatever state action may be required under Art. I, § 19.

[20] Terry also stands for the proposition that courts must avoid formalism when addressing threats to the meaningful exercise of the franchise and must assess discriminatory practices in a realistic light. Justice Black concentrated on the effect of the discriminatory conduct, concluding that a state violates the Constitution when it "permit[s] within its borders the use of any [electoral] device that produces" an unconstitutional result. 345 U.S. at 469. Justice Frankfurter noted that "long-accepted customs and the habits of a people may generate 'law' as surely as formal legislative declaration, and indeed, sometimes in the face of it". 345 U.S. at 475.

[21] North Carolina courts have recognized that the "absence of an insurmountable barrier will not redeem an otherwise unconstitutionally discriminatory law." Perry v. Perry, 80 N.C. App. at 174, 341 S.E.2d at 57 (1986) (quoting Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981) (internal quotation marks omitted). Accordingly, the assertion that very rarely a low income citizen may be able to mount a viable campaign would not defeat plaintiffs' cause of action.

[22] Such a claim was rejected in Bullock, where the state of Texas tried to justify its filing fees as the only method of financing primary elections. The U.S. Supreme Court held that Texas would have to bear the financial burden of paying for primary elections because the alternative fee system unconstitutionally burdened the voting rights of non-wealthy citizens. 405 U.S. at 147-149.

[23] Notably, in none of the other special privilege cases cited by defendants was a fundamental right (like the right to vote) at issue: Lowe, (prejudgment interest statute); Lamb v. Wedgewood, 308 N.C. 419, 439, 302 S.E.2d 868, 879 (1983) (special statute of limitations for architects and engineers); Knight, (exemptions from jury duty for certain occupations); Emerald Isle, (beach access statute); Tetterton v. Long Manufacturing Co., 314 N.C. 44, 332 S.E.2d 67 (1985) (products liability statute of repose).

[24] Decades of federal voting rights litigation has adjudicated the meaning of popular sovereignty as it is expressed in the two abstract phrases "equal protection of the laws" (U.S. Const. Amend. XIV) and "by the People" (U.S. Const. Art. I, § 2). See Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1963); Davis v. Bandemer, 478 U.S. 123 (1986); Hunt v. Cromartie, 526 U.S. 541 (1999).

[25] See also, ORTH at 42 ("Along with popular sovereignty, separation of powers is one of the fundamental principles on which state government is constructed"); ORTH at 38 (the Constitution "begins by detailing the ideological premises that underlie the structure of government").

[26] See, e.g., Moran v. Bowley, 179 N.E. 526, 531 (Ill. 1932) ("An election is free where the voters are exposed to no intimidation or improper influence and where each voter is allowed to cast his ballot as his own conscience dictates."); Anagnost v. Layhe, 595 N.E.2d 109, 111 (Ill. App. Ct., 1992) ("The purpose of this provision is to insure people (1) access to the ballot; and (2) access to being on the ballot."); Queenan v. Russell, 339 S.W.2d 475, 477 (Ky. 1960) (citing Asher v. Arnett, 132 S.W.2d 772 (Ky. 1939)) ("[A]n election is free and equal within the meaning of the Constitution only when it is public and open to all qualified electors alike; when every voter has the same right as any other voter; . . . when the regulation of the right to exercise the franchise does not deny the franchise itself or make it so difficult as to amount to a denial; and when no constitutional right of the qualified elector is subverted or denied him.").

[27] Notably, the Supreme Court has recognized that activities far more attenuated from the electoral process than fundraising might be prerequisites to the meaningful exercise of the franchise. For instance, the Court has not "foreclose[d] the possibility 'that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either [the right to speak or the right to vote].'" Papasan v. Allain, 478 U.S. 265, 284 (1986) (quoting Rodriguez) (bracketed material in original; emphasis added). If, therefore, something so indirectly related to elections as a basic "quantum of education" may serve as a prerequisite to the "meaningful exercise" of the right to vote, then there is clearly no per se causal or logical barrier to plaintiffs' claim that a quantum of funding is a prerequisite to the "meaningful exercise" of the franchise.

[28] Notably, the court held that "a person eligible for a position who does not 'engage in a futile gesture [of applying for it] . . . is as much a victim of discrimination as is he who goes through the motions of submitting an application.'" Uzzell, at 1515-16 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365-66 (1977)); see also Northeastern Florida Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (upholding standing to challenge a barrier to obtaining a public contract, without requiring showing that plaintiffs would have obtained the contract absent the barrier).

[29] Albanese v. FEC, 78 F.2d 66 (2d Cir. 1996); NAACP v. Jones, 131 F.3d 1317 (9th Cir. 1997); Georgia State Conf. of NAACP Branches v. Cox, 183 F.3d 1259 (11th Cir. 1999).

[30] Albanese v. FEC involved only claims under the federal constitution. Though federal and state equal protection and free speech claims were bought in NAACP v. Jones, neither the district court nor the court of appeals discussed or reached the state issues, but relied instead on the federal constitution. In Georgia State Conf. of NAACP Branches v. Cox, the district court did not address the separate claims brought under the state equal protection and free speech clauses, and the court of appeals relegated those claims to a cursory footnote. 183 F.3d 1259, 1264, n. 4 (11th Cir. 1999).

[31] As Justice Frankfurter stated in Terry, "[t]here is no restriction on filing by anyone else as a candidate in the Democratic primary, nor on voting by Negroes in that official primary". 345 U.S. at 471-72.

[32] Compare Baskin v. Brown, 174 F.2d 391, 394 (4th Cir. 1949) ("When the organization of the party and the primary which it conducts are so used in connection with the general election that the latter merely registers and gives effect to the discrimination which they have sanctioned, such discrimination must be enjoined to safeguard the election itself from giving effect to that which the Constitution forbids.") (emphasis added).

[33] It is not a requirement of judicially manageable standards that they dictate a specific remedy with absolute precision. In Reynolds v. Sims, for instance, the Supreme Court announced the "one person, one vote" standard for legislative districting. 377 U.S. 533 (1964). In the intervening decades applying this standard, courts have approved districting plans that approximate the standard within a range of acceptable deviation.

[34] See e.g. ARIZ. REV. STAT. tit. 16, ch. 6, § 16-940 et seq. (1990 & Supp.) ("Arizona Citizens Clean Elections Act"); MASS. GEN. LAWS. ch. 55A, § 11 (1990 & Supp.) ("Massachusetts Clean Elections Law"); ME. REV. STAT. ANN. tit. 21A, § 1002 et seq. and ME. REV. STAT. ANN. tit. 21A, ch. 14, § 1121 et seq. (1990 & Supp.) ("Maine Clean Election Act"); VT. STAT. ANN. tit. 17, ch. 59, § 2801 et seq. (1990 & Supp.)). All of these statutes contain some form of the remedial measures suggested by plaintiffs. Notably, Maine's public financing system has been held to be fully constitutional. Daggett v. Webster, 2000 U.S. App. LEXIS 3490 (1st Cir., March 7, 2000).

[35] Equal protection "does not require absolute equality or precisely equal advantages", but does require that "indigents have an adequate opportunity to present their claims fairly within the adversarial system." Ross v. Moffitt, 417 U.S. 600, 612 (1974).

[36] Plaintiffs note that this matter of the entitlement to attorneys' fees is not ripe for determination by the Court at this time. Whether fees should be awarded as part of any effective remedy cannot be determined until such time as plaintiffs have prevailed and the nature and extent of the constitutional violation has been determined by the court. Thus, it would be appropriate for the Court to expressly defer ruling at this time on the issue of the availability of fees if plaintiffs prevail on some or all of their claims.

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Memorandum in Opposition to Defendant’s Motion to Dismiss was served this date on the parties to this action by depositing a copy thereof in the United States Mail, First Class, postage prepaid, addressed to the following:

Michael Easley
Attorney General of North Carolina
2 East Morgan Street
P.O. Box 629
Raleigh, North Carolina 27602-0629

Norma Harrell and James P. Smith
Special Deputy Attorneys General -- Election Section
2 East Morgan Street
P.O. Box 629
Raleigh, North Carolina 27602-0629

This 17th day of April, 2000

James G. Exum, Jr.