Federal felon voting trial could start as early as April 1

Carolina Journal photo by Mitch Kokai

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  • A trial in a federal lawsuit challenging North Carolina's felon voting restrictions could start as early as April 1.
  • US District Judge Loretta Biggs included the felon voting case among seven cases on her April 1 calendar in Winston-Salem.
  • A hearing scheduled Feb. 28 will address a magistrate judge's recommendation that Biggs dismiss the lawsuit. The magistrate judge determined that changes included in Senate Bill 747 rendered the lawsuit's claims moot.

A federal judge has scheduled an April trial in a lawsuit challenging North Carolina’s law against felon voting. The case could help determine whether felons who have completed active prison time will take part in November’s general election.

US District Judge Loretta Biggs included the felon voting case among seven cases scheduled for her April 1 session in Winston-Salem. The actual starting date is not yet scheduled. Biggs will hold a bench trial. That means she will decide the case without a jury.

The trial date announcement came one day after Biggs scheduled a Feb. 28 hearing in the case. Oral arguments will address Magistrate Judge Joe Webster’s recommendation that Biggs dismiss the felon voting lawsuit as moot.

Webster offered his 24-page recommendation on Jan. 2. If Biggs accepts the magistrate judge’s recommendations, felons would not participate in the state’s 2024 elections.

Felons cannot vote in North Carolina until they have completed their sentences, including any probation, parole, or post-release supervision. Plaintiffs argued that the restriction on felon voting was racially discriminatory.

Webster noted the impact of Senate Bill 747, which changed the felon voting law last year. Now a voting felon can be charged with a crime only if he knew his voting rights had not been restored. In legal terms, SB 747 added a “scienter requirement.”

“Senate Bill’s 747’s addition of a scienter requirement sets the violative bar much higher, which substantially diminishes any prospective voter’s perceived threat of prosecution and any resulting confusion,” Webster wrote. “Under Senate Bill 747, a voter can only violate the felony disenfranchisement statute if he or she already knows they are ineligible to vote, intentionally disregards the law, and casts a ballot.”

The two plaintiffs in the case, the North Carolina A. Philip Randolph Institute and Action NC, argued that the felon voting law forces them to spend time and money advising felons about their rights. The plaintiffs are working with lawyers from the Southern Coalition for Social Justice.

“If a voter knows he or she is ineligible and will violate the law by voting, the voter has no need to seek out Plaintiffs’ advice regarding his or her eligibility,” Webster wrote. “Conversely, if a felon voter does not know he or she is ineligible to vote and casts a ballot, they have not violated any law. As a result, Plaintiffs can no longer claim that they must divert substantial resources to educate volunteers and prospective voters regarding the new law because much of the confusion concerning one’s eligibility to vote has been eliminated.”

“Plaintiffs’ interest in the instant case has been altered in such a way that they can no longer satisfy a finding of injury-in-fact,” Webster concluded. “Plaintiffs no longer retain a concrete and imminent injury that is fairly traceable to Defendants’ conduct and could be sufficiently redressed by a favorable judicial action.”

Felon voting advocates filed a motion for summary judgment in June. Advocates want felons to be able to register and vote once they have completed active prison sentences. Their suit would affect felons on parole, probation, or post-release supervision.

Biggs issued a Sept. 25 decision not to speed up the case’s timeline. She rejected a proposal that could have affected rules for the 2023 municipal elections.

The NC State Board of Elections and local district attorneys urged Biggs last summer to reject the lawsuit.

“Plaintiffs assert a facial challenge to the constitutionality of subsection 163-275(5), contending that it is void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment, and was enacted in 1877, and reenacted in 1899, with racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment. Both counts fail,” state Justice Department lawyers wrote on July 31.

“First, while it is undisputed that the predecessor to subsection 163-275(5) was initially enacted in the late 1800s with discriminatory intent, the scope of persons affected by the law was substantively altered with the new Constitution in 1971, creating a break from the history on which Plaintiffs rely,” according to the state’s court filing. “Plaintiffs have not presented any evidence that this later legislative and popular action of adopting a new constitution in 1971 was motivated by racial discrimination.”

“Second, subsection 163-275(5) provides an easily understood notice that once one loses the right to vote due to felony conviction, they cannot vote again until those rights are restored,” Justice Department lawyers wrote. “The fact that subsection 163-275(5) requires reference to the statute governing rights restoration does not make the law so standardless that it is unconstitutionally vague.”

SB 747, enacted into law over Gov. Roy Cooper’s veto, included one paragraph changing the language of N.C. Gen. Stat. § 163-275(5). That statute created 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 the new law, it’s 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.”

Critics of North Carolina’s felon voting restrictions turned their attention back to federal court, less than two months after the NC Supreme Court rejected a challenge of the state’s felon voting law in April 2023.

The Southern Coalition for Social Justice filed a motion for summary judgment on June 15 in US District Court. The group represents plaintiffs who started a legal challenge in September 2020. The lawsuit asks a federal judge to “invalidate” the felon re-enfranchisement law.

“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 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.

Renewed federal court action followed felon voting advocates’ April 28 setback in North Carolina’s highest court.

Plaintiffs in a separate 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 the November 2022 election.

The state’s highest court overruled lower courts five months later.

“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.”