New N.C. Supreme Court Justices Trey Allen and Richard Dietz have eight years to prove their dedication to limited constitutional government.
An early case involving felon voting rights suggests they have a good chance of passing the test.
Allen and Dietz joined their five state Supreme Court colleagues on Feb. 2 for oral arguments in Community Success Initiative v. Moore. In that case, plaintiffs argue that all felons who have completed active prison time should be allowed to vote in N.C. elections.
A decision in the case is weeks or even months away. But questions and comments from both Allen and Dietz suggest they are approaching the case from a proper constitutional perspective.
Article VI, Section 2(3) of the N.C. Constitution deals with “disqualification of felon.” It says no felon “shall be permitted to vote unless that person shall first be restored to the rights of citizenship in the manner prescribed by law.”
The General Assembly writes the laws. The current law for re-enfranchising felons dates back to 1973. It says felons regain voting rights once they complete all aspects of their sentences, both inside and outside prison. That 1973 law marked a liberalization of the re-enfranchisement process. Prior to its passage, N.C. felons had to jump through additional hoops to regain the right to vote.
Yet many left-of-center activists oppose the current rules. They believe any felon who has completed active prison time should be able to vote.
Rather than pursue that goal through the General Assembly, the body that has the power to write new laws, some activists went to court. They argued that the felon voting standards violated the state constitution.
It’s noteworthy that the Community Success Initiative case didn’t challenge Article VI, Section 2(3). It would be hard to claim that a section of the state constitution violates the state constitution.
Instead opponents took on the 1973 law. They called it racially discriminatory. Two members of a three-judge trial-court panel agreed. The panel struck down the law, then took the unusual step of declaring that all felons who had completed active prison time would be able to vote in upcoming elections.
The N.C. Court of Appeals delayed implementation of that change. But a split 2-1 appellate panel allowed felons outside prison walls to register and vote in last November’s election. Advocates have said the ruling applied to roughly 56,000 people.
The state Supreme Court must decide whether trial judges got the decision right. Felon voting advocates answer yes. Legislative leaders say no.
During oral arguments, Dietz outlined a key problem with the felon voting activists’ case. If the 1973 law violates the state constitution, that doesn’t open the door to more felons voting.
“Isn’t the remedy under our constitutional doctrine that we would declare the act of the General Assembly unconstitutional? It’s a nullity,” Dietz said. “And the General Assembly must re-enact a constitutional version of the statute.”
Dietz later questioned the notion that judges could rewrite felon voting rules from the bench. “It seems that our constitutional doctrine is pretty clear that in North Carolina we don’t try to get into the minds of legislators,” he said. “We declare something unconstitutional and then tell that other branch of government, ‘You need to try again. You enacted a law, and it was unconstitutional. Enact one that is not unconstitutional.’”
A Washington, D.C.-based lawyer arguing for felon voting responded that such a ruling could “wreak havoc” on North Carolina’s elections. It would eliminate voting for any felon who ever has had his rights restored.
Yet that is the only way a court could address an unconstitutional law. Judges cannot invent a new law to replace the old one.
Allen made that point when he followed Dietz’s commentary.
“Here’s my basic concern with the remedy,” Allen said. “The constitution in Article VI says felons shall not vote unless their rights have been restored in the manner prescribed by law.”
“The default is no felon voting except in the manner prescribed by law,” Allen said. “Where is the law that prescribes that felons can vote — or may vote — simply upon being released from incarceration?”
“The trial court seems to have imposed a remedy that’s beyond the authority of a court,” Allen added. “The courts can’t grant the restoration of voting rights to felons. The constitution expressly provides that those rights can only be restored by law. The authority to adopt such a law rests with the General Assembly, not with any court.”
It’s unclear whether a majority of the court will find fault with the 1973 law. If so, Allen and Dietz’s comments suggest they will not be inclined to have the state Supreme Court rewrite the law on its own. That’s a job for legislators.
Voters elected Allen and Dietz last November to eight-year terms on the state’s highest court. They will have plenty of opportunities in the years ahead to demonstrate their judicial philosophies.
In this early case, they have signaled an adherence to reading what the N.C. Constitution says and following it where it leads.
Mitch Kokai is senior political analyst for the John Locke Foundation.