Legislative leaders rebut arguments from felon voting advocates

Carolina Journal photo by Mitch Kokai

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  • N.C. legislative leaders argue that felon voting supporters are attacking a provision of the state constitution, not the 1973 law that re-enfranchises felons.
  • The N.C. Supreme Court's ruling in the case Community Success Initiative v. Moore could affect 56,000 felons who are on probation, parole, or post-release supervision.

State legislative leaders argue in a new brief that the N.C. Supreme Court should reverse prior court rulings granting voting rights to felons. The brief says a lawsuit supporting felon voting aimed its objections at the wrong target.

The case could determine whether as many as 56,000 felons can vote in N.C. elections.

“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 the 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.”

A trial court ruled, 2-1, in March against the 1973 state law that spells out a process for felons to regain their voting rights in North Carolina. As part of that decision, the court ruled that all felons who had completed active prison time should be allowed to register to vote in North Carolina. That ruling would apply to felons on parole, probation, or post-release supervision.

A 2-1 N.C. Court of Appeals ruling on April 26 blocked felon voting for the May primary and July 26 elections. Under the Appeals Court’s decision, felon voting would begin in November. The state Supreme Court now has the case, titled Community Success Initiative v. Moore.

Provisions for restoring voting rights to felons are spelled out in N.C. Gen. Stat. § 13-1, which addresses the restoration of citizenship.

“On the merits, Plaintiffs’ claim that Section 13-1 was racially motivated hinges upon tying Section 13-1 to racial animus that they contend surrounded the effort to add felon disenfranchisement to the North Carolina constitution in 1876 and codify that policy in statute in 1877,” according to the legislators’ brief. “What Plaintiffs cannot escape, however, is that the re-enfranchisement statute — the predecessor to Section 13-1 that Plaintiffs challenge — was not amended in the 1870s but rather retained the form it had taken since 1840 — before African Americans had the right to vote.”

“Therefore, even if Plaintiffs theoretically could succeed by tarring the civil rights reformers who enacted the 1970s reforms with what came before (and they cannot), such a gambit would not work here. A re-enfranchisement law enacted before African Americans had the right to vote cannot possibly have been motivated by discrimination against African Americans. Plaintiffs also cannot escape that every amendment to the felon re-enfranchisement law since 1840 has been in the direction of greater liberalization, and the form Section 13-1 takes today is the result of reform efforts by civil rights stalwarts.”

“Once the focus is on re-enfranchisement, rather than disenfranchisement, Plaintiffs’ claims of discrimination fall apart,” legislative leaders argue. “Accepting Plaintiffs’ other arguments for invalidating Section 13-1 would require this Court to find that felons have a fundamental right to vote, that elections without them are not ‘free,’ and that insisting felons pay their debt to society before rejoining the electorate is the equivalent of a poll-tax or property qualification. No such findings are possible because the North Carolina Constitution itself disenfranchises felons, subject to any re-enfranchisement law the General Assembly may in its discretion enact.”

“Absent action by the General Assembly, felons in North Carolina would be disenfranchised for life by direct operation of the Constitution. Felon voting in North Carolina is a matter of legislative choice, not constitutional right.”

The brief defends the current law, which dates to the early 1970s. “The re-enfranchisement scheme the General Assembly has enacted is automatic and the simplest and easiest system North Carolina has ever had for re-enfranchising felons,” according to the brief. “It was passed at the behest of African American reformers with the goals of making restoration easier and removing the possibility for bias. It affects all felons the same, regardless of race. All it requires is that felons complete the sentences for the offenses that caused them to be disenfranchised before rejoining the electorate. That is perhaps the most rational policy for re-enfranchising felons, and it certainly is one the General Assembly was entitled to adopt.”

The latest brief from lawmakers responds to arguments submitted Aug. 17 by plaintiffs in the case. Lawmakers face a Sept. 19 deadline to reply to arguments from multiple friend-of-the-court briefs supporting felon voting. Among them is a brief representing state governments in 14 “blue” states and the District of Columbia.

The Supreme Court has not yet scheduled oral arguments in the case.