Felon voting case will wait until 2023, N.C. Supreme Court rules

Carolina Journal photo by Mitch Kokai

Listen to this story (6 minutes)

  • The N.C. Supreme Court will wait until 2023 to decide a case involving felon voting rights.
  • Felon voting advocates had urged the court to hear oral arguments in October or November. State legislative leaders objected to a "breakneck" schedule.

The N.C. Supreme Court will wait until next year to hear oral arguments in a lawsuit dealing with felon voting rights. A court order issued Thursday rejected plaintiffs’ request to hear the case in the next two months.

The case, Community Success Initiative v. Moore, could affect as many as 56,000 potential N.C. voters.

“Plaintiffs’ Motion to Set Oral Argument as Soon as Feasible … is allowed to the extent that the Court will calendar the matter for hearing at the first regularly scheduled session of Court to be held in 2023,” according to an order signed by Justice Phil Berger Jr.

The order arrived one day after legislative leaders objected to felon voting advocates’ request to hear the case in October or November. A brief from lawmakers characterized the plaintiffs as requesting a “breakneck argument schedule.”

Plaintiffs had requested the expedited hearing in a Sept. 21 motion.

“After failing to attain a breakneck briefing schedule, Plaintiffs now seek a breakneck argument schedule,” according to legislators’ brief. “The ostensible basis for their request is the ‘changed circumstance’ presented by an argument raised in Legislative Defendants’ briefs in this appeal. But Legislative Defendants have raised that same argument in every one of the many substantive briefs they have filed in this case over the last year. Plaintiffs’ new motion is nothing more than a baseless second attempt at expedition, which this Court already has properly denied.”

The state Supreme Court held its last scheduled oral argument session for this year on Wednesday. The court’s current calendar includes no other argument dates this year. The last time the state’s highest court conducted oral arguments after October in an election year was 2014.

The court’s composition is guaranteed to change in 2023. Senior Associate Justice Robin Hudson, a Democrat, chose not to run for re-election. Her term expires at the end of December.

Hudson’s seat is one of two on the general election ballot. In the other race, Justice Sam “Jimmy” Ervin IV, a fellow Democrat, is seeking a second eight-year term.

Democrats now outnumber Republicans, 4-3, on the state Supreme Court. The composition could shift to 4-3 or 5-2 in Republicans’ favor next year, depending on the outcome of November’s election.

Even if Democrats win both races, the court would have one new justice in 2023. Unresolved cases might present complications if they require new votes in the new year.

In two other cases heard this week, the state Supreme Court expedited oral arguments in election-related lawsuits. Holmes v. Moore, heard Monday, challenges the state law for photo voter identification. Harper v. Hall, heard Tuesday, deals with disputes over state election maps.

Felon voting supporters’ Sept. 21 motion urged the court to add Community Success Initiative v. Moore to this year’s oral argument calendar. Plaintiffs asked the Supreme Court to schedule arguments “as soon as feasible in October or November if possible.”

As many as 56,000 felons on probation, parole, or post-release supervision can register and vote this fall. A split trial court voted 2-1 in March to throw out North Carolina’s law regarding felon voting. A split 2-1 N.C. Court of Appeals panel ruled in April that the trial court’s decision could take effect after this year’s July 26 elections.

The state Supreme Court will take no action to change the status quo for the general election. Yet felon voting advocates had argued that court filings in the case to date might generate confusion about felons’ rights.

The plaintiffs’ motion cited legislative leaders’ “threats of criminal prosecution” that could “improperly intimidate and deter lawful North Carolina voters from registering and voting.”

Legislative leaders rebutted that argument in this week’s filing. “Legislative Defendants’ briefs contain no ‘threats of criminal prosecution,’ … which Legislative Defendants could not initiate,” according to lawmakers’ brief. “Nor do Legislative Defendants assert that any felons should or will be prosecuted for voting in reliance on the Superior Court’s order during any election conducted while that order is in effect.”

“What our briefs do contain are multiple reasons why the Superior Court lacked authority to enter that order and thus why the order should be vacated for future elections, one reason being that the order could not and does not redress Plaintiffs’ alleged injury,” the brief continued.

Lawmakers have argued throughout the case that the N.C. Constitution prevents felons from voting. Felons can cast ballots only after state law restores their citizenship rights. When throwing out the existing law regarding felon voting, the trial court had no authority to grant voting rights that are banned in the state constitution, lawmakers contend.