Legislative leaders ask full N.C. Appeals Court to reconsider ruling on felon voting

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  • Legislative leaders want the full 15-member Appeals Court, with 10 Republicans and five Democrats, to reconsider a 2-1 split ruling on felon voting.
  • The N.C. Constitution says felons cannot vote unless their rights have been restored "in the manner prescribed by law."

State legislative leaders are asking the full 15-member N.C. Court of Appeals to reconsider a ruling that would allow felons to vote in November elections.

If a majority of the 15 appellate judges support the request for an “en banc” hearing, the full court would address a ruling issued Tuesday by a split three-member Appeals Court panel.

The 2-1 ruling would permit a Superior Court order on felon voting to take effect after July 26 elections. The Superior Court, in its own 2-1 decision, called for state elections officials to permit voting by any felon who had completed active prison time.

The change would apply to felons on parole, probation, or post-release supervision. An estimated 56,000 people could be affected.

One unaffiliated judge and one registered Democrat supported the trial court ruling, while a Republican colleague dissented. The Appeals Court panel featured two Democratic judges in the majority and a Republican in dissent.

Republicans outnumber Democrats, 10-5, among the full Appeals Court.

“The Superior Court has issued an injunction that is plainly irreconcilable with the North
Carolina Constitution,” according to the motion filed Thursday by Nicole Moss, a Washington, D.C.-based attorney representing Republican legislative leaders. “Under Article VI, § 2, anyone convicted of a felony may not vote ‘unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.’ The Superior Court held unconstitutional the ‘manner prescribed by law,’ … meaning that felons serving sentences outside of prison now have no lawful means of regaining their voting rights and thus remain disenfranchised under Article VI, § 2. Yet, the Superior Court permanently enjoined Defendants to allow such persons to register and vote.”

In other words, felons would be allowed to register and vote despite the absence of a state law required by the state constitution.

“[T]he Superior Court’s new injunction would cause irreparable harm to the State and its voters in any election,” Moss added. “Even if the State Board of Elections had sufficient time to implement that injunction between this year’s primary and general elections, the fact remains that the State Board has been enforcing a different set of rules for over a year, rules that the North Carolina Supreme Court ordered the Board to keep in place back in September and that
this Court has ordered the Board to keep in place through July.”

“Implementing new rules in the space of a few months would necessarily ‘result in voter confusion and consequent incentive to remain away from the polls.’”

Moss quotes dissenting Appeals Court Judge Jefferson Griffin, who “correctly observed, ‘[i]f convicted felons are permitted to vote in the November election and Petitioners subsequently prevail on the merits of their appeal,’ as they likely will, ‘untold thousands of lawful votes cast by North Carolina citizens likely will be diluted by votes cast by convicted felons in violation of our State Constitution.’”

The Appeals Court panel’s decision “fails to protect the State and its voters from these harms,” Moss argued.

Jefferson’s dissent had encouraged an en banc hearing by the full 15-member Appeals Court, “to protect an orderly election, the rule of law, and the appeal process.”

As the request for an en banc hearing arrives at the Appeals Court, the state Supreme Court is still considering a request to step into the case titled Community Success Initiative v. Moore. Democrats outnumber Republicans, 4-3, on the state’s highest court.

“The back-and-forth, on-again-off-again stays create confusion and fear among people with felony convictions that risks deterring them from registering and voting even when they are lawfully permitted to do so,” according to a brief filed Friday with the state’s highest court. The brief from plaintiffs’ attorney Daryl Atkinson urges the Supreme Court to take up the case.

The most recent Civitas Poll from the John Locke Foundation found that 66% of likely general election voters support the state constitution’s current restrictions on felon voting. Among those surveyed, 54% opposed the trial court’s ruling allowing felons to cast votes before completing their full sentences.

Editor’s note: This story was updated at 2:45 p.m. Friday with information about a new filing with the N.C. Supreme Court.