Felon voting supporters urge N.C. Supreme Court to hear case in October or November

Carolina Journal photo by Mitch Kokai
  • Felon voting supporters are urging the N.C. Supreme Court to hear oral arguments in their case in October or November.
  • An order from the N.C. Court of Appeals allows up to 56,000 felons on parole, probation, or post-release supervision to register for the general election.

Advocates pursuing voting rights for N.C. felons are asking the state Supreme Court to consider the case as early as next month. They urge the state’s highest court to clear up potential confusion about felons’ participation in the general election.

The state Supreme Court would hear oral arguments “as soon as feasible in October or November if possible,” under a motion filed Wednesday in the case titled Community Success Initiative v. Moore. “Plaintiffs would be amenable to an even more expedited schedule if the Court prefers.”

Legislative leaders object to the expedited hearing schedule, according to the motion.

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 say court filings in the case to date might generate confusion about felons’ rights.

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

“Legislative Defendants have argued that individuals on felony supervision can be criminally prosecuted for unlawfully registering and voting notwithstanding the trial court’s injunction allowing those individuals to lawfully register and vote,” wrote attorney Daryl Atkinson of Forward Justice, who represents felon voting supporters. “In their opening brief, Legislative Defendants assert that the trial court’s injunction — contrary to its plain text — somehow ‘results in all felons with incomplete sentences remaining disenfranchised’ and thus ‘invites lawbreaking by felons who mistakenly believe that’ they may now register and vote pursuant to that injunction.”

“Based on this theory that individuals on felony supervision cannot lawfully register and vote despite the trial court’s injunction, Legislative Defendants posit that ‘the effect of the court’s order can only be to induce violations of § 163-275(5) [which makes it a felony offense to register or vote before rights restoration] and to subject violators to prosecution’ brought by ‘local law enforcement officials.’”

“Under this specious view, individuals on felony supervision who register and vote in November 2022 pursuant to the trial court’s injunction, and clear guidance from the State Board of Elections that they are legally eligible to vote, can be criminally prosecuted for the felony offense of unlawfully registering and voting,” Atkinson argued.

“To be clear: Legislative Defendants’ ‘prosecutions’ argument has zero merit; there is no basis to prosecute a person who lawfully registers and votes pursuant to a court order, and any such prosecution would itself be not only improper, but unlawful,” Atkinson added.

“But, for obvious reasons, the mere possibility of being threatened with criminal prosecution, no matter how absurd and remote, risks intimidating and deterring affected individuals from registering and voting in upcoming elections as the trial court’s injunction explicitly allows them to do,” he argued.

A state Supreme Court decision “would resolve this matter and conclusively eliminate the cloud that Legislative Defendants have attempted to raise over registration and voting by individuals on felony supervision,” Atkinson wrote.

State lawmakers have argued that Atkinson and his clients aimed their lawsuit at the wrong state statute. The N.C. Constitution bans voting by felons before their rights have been restored. The suit targets the 1973 state law that spells out conditions for restoring felons’ voting rights.

“Plaintiffs’ response fails to remedy the fundamental defect at the heart of their case — they have challenged North Carolina’s statute for re-enfranchising felons, when what they really are complaining about is the North Carolina Constitution’s provision for disenfranchising felons,” according to a Sept. 9 brief from Republican legislative leaders. “North Carolina’s re-enfranchisement statute is the product of civil rights reformers of the 1970s, not any racial discrimination.”

“Plaintiffs’ choice of the wrong target permeates the case,” the brief continued. “Plaintiffs cannot have standing to challenge a law that has never hurt them because it does not disenfranchise anyone, and the Superior Court’s injunction exceeded its authority by usurping the General Assembly’s constitutionally granted authority to prescribe the method for re-enfranchising felons.”

Legislative leaders will have a chance to respond to felon voting supporters’ latest request before the state Supreme Court makes a decision about scheduling oral arguments.