Elections bill could have major impact on federal felon voting case

Carolina Journal photo by Mitch Kokai

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  • An election reform bill that has cleared the N.C. Senate could have a major impact on a federal lawsuit dealing with felon voting.
  • Lawyers representing the State Board of Elections and local district attorneys are asking a federal judge for an additional month to respond to the latest court filings from felon voting advocates.
  • Defendants' lawyers say one provision in Senate Bill 747 would "fundamentally alter the course" of the case.
  • A trial in N.C. A. Philip Randolph Institute v. N.C. State Board of Elections is scheduled for April 2024.

An election reform bill moving through the N.C. General Assembly could have a major impact on a federal lawsuit dealing with felon voting.

In a court filing Monday, lawyers representing defendants in the case asked for more time to respond to the plaintiffs’ recent motion for summary judgment. The defendants cited the potential effect of Senate Bill 747.

Senators approved the measure on June 21 with a party-line 28-19 vote. Republicans supported the bill. Democrats opposed it. The bill now sits in a state House elections committee.

That bill features multiple proposed changes to state election law, including a requirement that all absentee ballots arrive at local elections offices by Election Day to count as valid votes. People who use same-day voter registration would be required to cast a provisional ballot.

Another requirement could have a direct impact on the federal suit, titled N.C. A. Philip Randolph Institute v. N.C. State Board of Elections.

One paragraph in the 24-page bill changes the language of N.C. Gen. Stat. § 163-275(5). That statute creates a Class I felony “For any person convicted of a crime which excludes the person from the right of suffrage, to vote at any primary or election without having been restored to the right of citizenship in due course and by the method provided by law.”

Under provisions of S.B. 747, the updated law would make it a crime “For any person convicted of a crime which excludes the person from the right of suffrage, to vote in any primary or election knowing the right of citizenship has not been restored in due course and by the method provided by law.”

The major change is that the voting felon would have to know that his voting rights had not been restored to be charged with a crime.

“[T]he enactment of SB747 will fundamentally alter the course of this case,” according to lawyers representing the State Board of Elections and local district attorneys. “At maximum, it could moot the case entirely, and at minimum, it would fundamentally change the analysis and arguments for each claim.”

“Under either outcome, it would be wasteful for the parties and the Court to proceed with briefing under these circumstances,” the court filing continued. “Specifically, if Defendants are required to respond to the pending summary judgment motion while SB747 is being considered, all effort and resources expended will ultimately be wasted if the amendment to N.C.G.S. § 163-275(5) is ultimately enacted.”

Court deadlines currently require the elections board and DAs to respond to the plaintiffs’ motion by July 17. The defendants are asking a judge to extend that deadline to Aug. 17. “Given that twenty-one days elapsed between filing and passage in the North Carolina Senate, it is respectfully submitted that a thirty-day extension will allow sufficient time to determine whether SB747 will be passed in the House of Representatives, and ultimately be enacted,” according to the brief.

Defendants’ lawyers reminded the court that a trial in the case is scheduled for April 2024.

“If the requested extension is granted, Plaintiffs’ Reply, if any, would be due no later than August 31, 2023, thus allowing for submission of the motion to the Court seven months in advance of trial, and six months in advance of the first pretrial disclosures and filings,” according to the document.

Plaintiffs plan to object to the 30-day extension, according to the latest court filing.

Critics of North Carolina’s felon voting restrictions turned their attention back to federal court, less than two months after the N.C. Supreme Court rejected a challenge of the state’s felon voting law in April.

The Southern Coalition for Social Justice filed a motion June 15 in U.S. District Court. The group is seeking summary judgment on behalf of plaintiffs who started a legal challenge in September 2020. The lawsuit asks a federal judge to “invalidate” N.C. General Statute § 163-275(5).

“The Court should invalidate North Carolina General Statute § 163-275(5) because it violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment,” according to the motion.

Opponents label the felon voting restriction the “Strict Liability Voting Law.” It “imposes strict-liability, felony-level criminal penalties on citizens who vote while on parole, probation, or post-release supervision for a felony conviction — even if they mistakenly believe they are eligible to vote. The Law cannot withstand Fourteenth Amendment scrutiny,” the brief added.

“The Strict Liability Voting Law is an unconstitutional trap for the unwary,” felon voting advocates argued. “In fact, the State Board’s designee conceded at his deposition that ‘it’s absolutely possible’ prospective voters could be confused. The undisputed record also shows that county prosecutors have interpreted and enforced the Law inconsistently. While some prosecutors have charged individuals who mistakenly voted before completing their post- release supervision, others have declined to prosecute individuals where there was no evidence of intent. The Law should be struck down as void for vagueness under the Due Process Clause.”

The motion for summary judgment focuses on an 1877 version of the felon voting law. It offers a passing reference to amendments as recently as 1973 that have made it easier for felons to regain voting rights after completing their sentences. The document references a state constitutional provision related to felon voting restrictions. Yet the suit does not target the state constitution.

Federal court action follows felon voting advocates’ April 28 setback in North Carolina’s highest court.

Plaintiffs in a case called Community Success Initiative v. Moore had challenged felon voting restrictions through the state court system. Activists hoped to open the door to voting for as many as 56,000 felons who had completed active prison time but had not completed their full sentences.

A split 2-1 trial court ruling, upheld by a split 2-1 state Appeals Court decision, allowed felons to register and vote in last November’s election.

The state’s highest court overruled those lower courts.

“Our state constitution ties voting rights to the obligation that all citizens have to refrain from criminal misconduct,” wrote Justice Trey Allen for the 5-2 majority. “Specifically, it denies individuals with felony convictions the right to vote unless their citizenship rights are restored ‘in the manner prescribed by law.’ No party to this litigation disputes the validity of Article VI, Section 2(3) of the North Carolina Constitution.”

“This case is therefore not about whether disenfranchisement should be a consequence
of a felony conviction,” Allen added. “The state constitution says that it must be, and we are bound by that mandate.”

Plaintiffs instead challenged laws approved in the 1970s to set the rules for felons to regain voting rights. “The evidence does not prove that legislators intended their reforms … in the early 1970s to disadvantage African Americans, nor does it substantiate plaintiffs’ other constitutional claims,” Allen wrote. “It is not unconstitutional to insist that felons pay their debt to society as a condition of participating in the electoral process. We therefore reverse the trial court’s final order and judgment.”

“The General Assembly did not engage in racial discrimination or otherwise violate the North Carolina Constitution by requiring individuals with felony convictions to complete their sentences — including probation, parole, or post-release supervision — before they regain the right to vote,” Allen added.

Justice Anita Earls wrote for the dissenting Democratic justices. “The majority’s decision in this case will one day be repudiated on two grounds,” she wrote. “First, because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery, and second, because the majority violates a basic tenant of appellate review by ignoring the facts as found by the trial court and substituting its own.”