Felon voting advocates ask court to speed up federal case

Carolina Journal photo by Mitch Kokai

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  • Felon voting advocates in North Carolina seek a hearing before US District Judge Loretta Biggs and an expedited schedule for their federal lawsuit.
  • Plaintiffs in the case hope to secure an injunction that could impact this year's municipal elections.
  • Defendants in the case, the State Board of Elections and local district attorneys, oppose an expedited schedule. A trial in the case is scheduled in April 2024.

Supporters of felon voting in North Carolina are urging a federal court to expedite their case. They filed a motion Thursday in US District Court seeking a hearing on their requests for an injunction and summary judgment in the legal dispute.

Defendants in the case, the State Board of Elections and local district attorneys, oppose the proposal to expedite the lawsuit’s schedule.

“Good cause exits for this request because Plaintiffs’ motion for summary judgment concerns the validity of a state election law, N.C.G.S. § 163-275(5) (the ‘Strict Liability Voting Law’ or the ‘Law’), and its enforceability in connection with the upcoming municipal elections this Fall,” wrote lawyers for the plaintiffs, the North Carolina A. Philip Randolph Institute and Action NC.

Both groups are pushing for felons to be able to vote in NC elections after they have completed active prison sentences. Voters in that category were able to register and vote in November 2022. An April ruling from the state Supreme Court ended felon voting. Under current law, no felon can cast a ballot in an election in North Carolina unless he has completed his entire sentence. That includes probation, parole, and post-release supervision.

The latest court filing noted that early voting already has started in some of this year’s municipal elections, scheduled for Sept. 12, Oct. 10, and Nov. 7. Felon voting advocates also mentioned that active state legislation, including the recently vetoed Senate Bill 747, could affect felon voting.

“[T]he central facts establishing that the Strict Liability Voting Law is unconstitutional under the Equal Protection Clause are undisputed,” plaintiffs’ lawyers argued. “Defendants concede that the Law was enacted in 1877 and reenacted in 1899 with racially discriminatory intent. And Defendants concede that the Law continues to have a disproportionate impact on Black citizens.”

“Defendants’ only argument in opposition is that a 1971 state constitutional amendment that did not mention the Law somehow indirectly cleansed the Law’s racist history and impact,” the motion continued. “This argument is unsupported and unprecedented. The Law also violates the Due Process Clause because it does not explain when a voter has been ‘unconditionally discharged’ such that the voter has regained his or her right to vote.”

The motion warns of “significant risks of voter confusion.” Plaintiffs ask to bypass a magistrate judge and hold a hearing instead before District Judge Loretta Biggs. They urge Biggs to put forward a briefing schedule that would give the defendants one week to respond to the request for an expedited review.

Lawyers from state Attorney General Josh Stein’s Department of Justice represent both the State Board of Elections and local DAs in the case. They filed paperwork on July 31 rejecting felon voting advocates’ motion for summary judgment.

“The North Carolina Constitution forbids a person convicted of a felony from voting ‘unless that person shall be first restored to the rights of citizenship in the manner prescribed by law,’” wrote Justice Department lawyers.

Their court filing referenced Article VI, Section 2(3) of the state constitution.

“To give effect to and enforce this constitutional provision, N.C.G.S. § 163-275(5) makes it a felony ‘[f]or any person convicted of a crime which excludes the person from the right of suffrage, to vote at any primary or election without having been restored to the right of citizenship in due course and by the method provided by law,’” state lawyers explained.

“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 argued.

“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.”

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

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.

The Southern Coalition for Social Justice filed a motion on June 15 in US 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” 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.

Federal court action follows 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 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.”