Legal Library


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,



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



Plaintiffs respectfully submit this sur-reply memorandum to make one simple point: plaintiffs neither seek, nor need, any amendment to the Constitution of North Carolina -- because the text of that document is already clear. The Constitution unequivocally requires the state to conduct free and fair elections, in which no economic qualification may affect the right to vote or hold office. N.C. Const. Art. I, §§ 10, 11; Pl. Mem. at 17-45. In their Reply Brief (hereinafter, "Def. Rep."), defendants repeatedly confuse the rights plaintiffs seek to vindicate with the relief they suggest as a possible remedy. Hoping to circumvent the proper legal analysis which this Court must apply, defendants ignore the plain words of the Constitution and attempt to embroil the Court in a policy debate. This case does not require the Court to debate policy or amend the Constitution; it requires the Court to fulfill its constitutional duty to interpret the state’s fundamental law.

Plaintiffs have alleged detailed, quantifiable injury to their rights to vote and to hold office. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss at 3-8. The injury is not, as defendants claim, plaintiffs’ "lack of wealth or access to wealth". Def. Rep. at 2. The injury is instead plaintiffs’ lack of access to the political system, caused by defendants’ use of money-based elections to constitute government. The injury is not the "failure of the citizenry to contribute sufficiently to plaintiffs’ candidacies". Def. Rep. at 15. It is instead that the State’s electoral system requires citizens to raise money as a pre-condition to the exercise of their most basic political rights. Plaintiffs do not assail social or economic inequities; rather, they allege a denial of their political rights, directly caused by defendants’ sanction and management of ‘pay-to-play’ elections.

Precisely like plaintiffs in Leandro v. State, the instant plaintiffs request a judicial interpretation of explicit provisions of the North Carolina Constitution to determine "whether the people’s constitutional right[s . . . have] any qualitative content." 346 N.C. 336, 345, 488 S.E.2d 249, 254 (1997). The North Carolina Constitution expressly prohibits "property qualifications" that "affect the right to vote and hold office", while guaranteeing "free elections", "sovereignty of the people", "rights of conscience", and "equal protection of the law". N.C. Const. Art. I, §§ 2, 10, 11, 13, 19. Plaintiffs seek a determination of the qualitative standards of true democracy expressed by the people in these constitutional provisions, against which plaintiffs’ injuries may be assayed.

Defendants’ claim that North Carolina courts "have defined the principles embraced by each of the constitutional provisions on which plaintiffs base their case" is not borne out by caselaw. Def. Rep. at 3. In fact, North Carolina courts have never directly addressed the scope of, much less "defined the principles embraced" in, the Property Qualifications Clause of the North Carolina Constitution, the chief provision upon which plaintiffs rely. Though the courts have made broad, passing mention of the Property Qualifications Clause on rare occasions, (see, e.g., People ex rel. Van Bokkelen v. Canaday, 73 N.C. 198, 1875 N.C. LEXIS 48 (1875); Wilson v. Green, 135 N.C. 343, 47 S.E. 469 (1904)), plaintiffs are aware of only one court decision which explicitly -- though obliquely -- relied on the clause in its holding, namely Texfi Industries v. City of Fayetteville, 44 N.C. App. 268, 272, 261 S.E.2d 21, 24 (1979) (citing the clause only for the principle that "property interests alone cannot establish voting rights"). Clearly, the instant case raises issues of first impression brought under largely unexamined constitutional provisions.

Defendants compound their confusion by relying on Rosie J. v. North Carolina Dep’t. of Human Resources, 347 N.C. 247, 491 S.E.2d 535 (1997), a case which explained, inter alia, that the North Carolina Constitution does not provide a right to "have the State pay for an abortion." 347 N.C. at 251, 491 S.E.2d at 537. This holding does not undermine plaintiffs’ claims. The Rosie J. plaintiffs based their claim upon a limited federal privacy right, not explicitly supported by constitutional text, but inferred from the "Fourteenth Amendment’s concept of personal liberty and restrictions upon state action". See Roe v. Wade, 410 U.S. 113, 153 (1973). The Roe v. Wade case prohibited the state from interfering in a woman’s right to chose during part of her pregnancy. The Rosie J. case merely announced that this limited prohibition does not carry a concomitant duty to pay for the woman’s decision.

By contrast, the constitutional injuries plaintiffs seek to vindicate in this matter arise from the affirmative duty placed upon the state by the Constitution to provide for free and fair elections and the Constitution’s express prohibition of elections in which property qualifications affect a citizen’s right to vote or hold office. This prohibition and the cognate guarantees of popular sovereignty, which sound at the core of democratic self-government, comport a duty to take all steps necessary to provide for fair elections so that "a 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.

Defendants also adopt a pinched, restrictive view of constitutional litigation. Both changing circumstance and moral progress require permanent, active vigilance from the judiciary. Before Gideon v. Wainwright, courts had repeatedly rejected the state’s duty to provide criminal counsel. Before Harper v. Virginia State Bd. of Elections, the highest court in the country had twice deemed the poll tax constitutional. Before Reynolds v. Sims, legislative apportionment had been considered non-justiciable. Despite the absence of precedent, and sometimes in the face of directly adverse decisions, the plaintiffs in those cases all stated causes of action and ultimately prevailed. Defendants would constrict the role of the judicial branch beyond recognition. Without the ability to modify law, or announce new interpretations of old principles in light of changed facts, the courts of this country would serve no purpose and the law would stagnate. In the words of the people of North Carolina, "[a] frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty." Art. I, § 35.

Notwithstanding defendants’ rhetorical smokescreen, the text of the North Carolina Constitution remains plain and clear: "[a]s political rights are not dependant upon or modified by property, no property qualification shall affect the right to vote or hold office." Art. I, § 11. This Court has the power and the duty to interpret this and related constitutional provisions in order to determine the qualitative reach of the rights guaranteed to the people of North Carolina.


For the reasons set forth above and in their Memorandum of Law In Opposition to Defendants’ Motion to Dismiss, plaintiffs respectfully request that defendants’ Motion to Dismiss be denied.

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

300 N. Greene Street, Suite 1400
Greensboro, N.C. 27401
Telephone: (336) 378-5200

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

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

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

224 S. Dawson St.
Raleigh, N. C. 27611
Telephone: (919) 856-2121

COUNSEL FOR: Fannie Walden

* Appearing Pro Hac Vice.


I hereby certify that the foregoing Sur-reply 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 15th day of June, 2000

James G. Exum, Jr.