Winners of a recent trial court ruling on voting rights for felons want the N.C. Supreme Court to take up the case. The ruling could affect 56,000 felons who have completed active prison time.
“Plaintiffs seek discretionary review from this Court given the exceptional importance and urgency of the appeal, and of Legislative Defendants’ Petition for a Writ of Supersedeas, which has the potential to create immense confusion before the May 2022 primary election and cause substantial and irreparable harm,” according to a court filing from Daryl Atkinson of Forward Justice. Atkinson is an attorney for plaintiffs in the case titled Community Success Initiative v. Moore.
“Plaintiffs further move to suspend the North Carolina Rules of Appellate Procedure to the extent necessary to prevent manifest injustice to the Constitution of the State of North Carolina and to the citizens of the State,” Atkinson wrote.
The plaintiffs’ plea for action arrived at the state Supreme Court Monday, three days after state legislative leaders asked the Court of Appeals to block a lower court ruling in the case.
“The Superior Court has issued an injunction that is plainly irreconcilable with the North Carolina Constitution,” according to the legislators’ appeal. “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.”
“Yet, the Superior Court has permanently enjoined Defendants to allow such persons to register and vote,” legislators’ court filing continued. “And the court has done so on the eve of an election — indeed, in a manner that, if not stayed, will insulate the ruling from this [Appeals] Court’s review with respect to the upcoming elections.”
“This is the second time in this litigation that the Superior Court has upended the State’s rules for felon enfranchisement with elections approaching,” legislators warned. “The last time, this [Appeals] Court — in a decision later upheld by the Supreme Court — stayed the Superior Court’s attempt to suddenly permit all of the tens of thousands of felons serving sentences outside of prison to register and vote, instead allowing the State Board of Elections to maintain the narrower rules promulgated under the Superior Court’s original preliminary injunction.”
The flurry of new court filings arrives in response to a March 28 decision from a three-judge panel. The panel has been dealing with the case since the 2020 election cycle. In a 2-1 decision pitting the panel’s two Democratic judges against a Republican dissenter, the court declared a 1973 state law unconstitutional.
That nearly 50-year-old spelled out the conditions for felons to regain state voting rights. The law, passed when Democrats controlled both chambers of the General Assembly, required felons to complete their entire sentences before regaining the right to vote. That included time on probation, parole, or post-release supervision.
Judges Lisa Bell and Keith Gregory rejected the law, known as Section 13-1. “Section 13-1’s denial of the franchise to people on felony supervision violates North Carolina’s Equal Protection Clause both because it discriminates against African Americans and because it denies all people on felony supervision the fundamental right to vote,” Bell and Gregory wrote. “Section 13-1’s denial of the franchise to people on felony supervision has the intent and effect of discriminating against African Americans, and unconstitutionally denies substantially equal voting power on the basis of race.”
Dissenting Judge John Dunlaw reached an opposite conclusion.
“The Plaintiffs have offered, and the Court received, a myriad of testimony, statistical analysis, and evidence relating to the impact the provision of Article VI, Section 2, Part 3 of the North Carolina Constitution (felon disenfranchisement) has on the African American population,” Dunlaw wrote. “The Plaintiffs have offered no testimony, statistical analysis, or evidence relating to the impact, if any, N.C.G.S. § 13-1 has on the African American population or any other suspect class.”
The court ruling arrived less than two months before North Carolina’s May 17 primary.
“This is an unrivaled attempt by judges to legislate from the bench,” said Sen. Warren Daniel, R-Burke, in a March 30 news release. “Piece-by-piece the courts are chipping away at the legislature’s constitutional duty to set election policy in this state and seizing that authority for themselves.”
“[I]nstead of just striking down the law, two of the three judges wrote a new law allowing all felons not currently serving an active sentence to register to vote,” Daniel’s news release added. “Simply put, this ruling substitutes the preferred policy of two county judges for state law.”
“The General Assembly has not voted on a new process for felons to regain their right to vote, nor has Gov. [Roy] Cooper signed anything into law,” according to Daniel’s release. “The only people who have approved this policy change are two trial court judges that represent a small fraction of our residents.”
There is no deadline for action from either the state Appeals Court or the Supreme Court.